/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130626.mbx C L A S S A C T I O N R E P O R T E R Wednesday, June 26, 2013, Vol. 15, No. 125 Headlines AAA MID ATLANTIC: 3rd Cir. Affirms "Kaymak" Suit Dismissal ANADIGICS INC: No Further Appeal Filed in Dismissal of Suits ARBITRON INC: Has MOU to Settle Securities Suit Over Merger ARIZONA: 9th Cir. Affirms Ruling in Suit Over Proposition 100 ARIZONA: Court Unwilling to Enact House Bill 2800 AT&T MOBILITY: Arbitration Ruling in "Short" Class Suit Upheld ATLANTICUS HOLDINGS: "Knox" Suit Still Pending in North Carolina AUSTRALIA: May Face Payout of AU$1+ Billion in Flooding Suit BANKRATE INC: Continues to Defend "Speight" Suit in Colorado BELO CORP: Being Sold to Gannett for Too Little, Suit Claims BETA LABS: Recalls Oxyphen, Phentalene, Phen FX and Red Vipers BP PLC: $573 Million in Oil Spill Claims Paid in Alabama BRITISH COLUMBIA: Court Begins Hearing in Doctors' Fee Suit BURLINGTON, WA: Trial in Suit Over Indigent Representation Begins CANADA: Lawyer Says RCMP Suit May Face Delay Without Mediation CFS: Seeks Dismissal of Class Action Over 2005 Bushfire CITIZENS FINANCIAL: Sheppard Mullin Discusses Court Ruling COLE CREDIT: Faces Class and Derivative Suits Over CHC Merger CONDE NAST: Interns File Class Action Over Labor Law Violation CONSOL ENERGY: "Hale" v. CNX in Discovery; No Certification Yet CONSOL ENERGY: Court Allows "Addison" v. CNX; Discovery Ongoing CONSOL ENERGY: CNX Settles Shareholder Suit for $42.73 Million CONSOL ENERGY: Still Faces "Hall" Gas Lessors' Lawsuit CONSOL ENERGY: "Comer" Plaintiffs File New, Nearly Identical Suit COOPER TIRE: Faces Suit Over Proposed Acquisition by Apollo Tyres DEWAAY FINANCIAL: Judge Approves $3MM Class Action Settlement E*TRADE FINANCIAL: $79MM Accord in Securities Suit Deemed Final EQT PRODUCTION: Court Recommends Class Status in Landowners' Suit EXIDE TECHNOLOGIES: Federman & Sherwood Files Class Action FAT COW: Faces Overtime Class Action FIRSTENERGY SOLUTIONS: Unit Still Faces Environmental Lawsuit GREEN JACOBSON: Faces Class Action Over Breaching Duty HAWAII: Disability Rights Center Launches 9th Cir. Appeal HIGHER ONE: Awaits Ruling on Motion to Dismiss Consumer MDL IMMERSION CORPORATION: Stockholders Appeal Dismissal of Suit INTRALINKS HOLDINGS: Bid to Dismiss Securities Suit Denied in May INVENTURE FOODS: Certification Hearing in Suit v. Jamba in Oct. JM SMUCKER: False Ad Plaintiff Can Recover Fees, Judge Rules KMART CORP: Delbridge to Represent Class for Cashiers, Judge Rules KELLOGG CO: Faces Class Action Over Deceptive Advertising LIQUOR CONTROL: Recalls Nalewka Babuni Cherry Wine Over Color MAPCO EXPRESS: Faces Class Action Over Hacked Credit Card System NAT'L COLLEGIATE: Concussion Lawsuit Faces Fewer Obstacles NEVADA PROPERTY: Awaits Order on Bid to Junk Unlawful Taping Suit NEVADA PROPERTY: Continues to Face Wage and Hour Suits in Nevada NEW CENTURY: Recalls Loaf Cakes Due to Undeclared Milk and Wheat NEW JERSEY: Faces Suit Over Plan to Close Development Centers NEW YORK: Justice Dep't to Intervene on Stop-And-Frisk Program NICK CASSAVETES: Faces Class Action Over Labor Violations NORTHWEST BANCSHARES: "Daly" Suit Plaintiff Has Renewed Cert. Bid NORTHWEST BANCSHARES: Awaits Opinion and Order in "Toth" Suit NRG ENERGY: GenOn Suit Plaintiffs Want Case Dismissal Reviewed NRG ENERGY: Cheswick Property Owners Appeal Dismissal of Suit NRG ENERGY: July 16 Final Approval Hearing on Energy Plus Accord NRG ENERGY: Settlement Hearing on Suit Over Merger in June PILOT FLYING J: Gordon Ball Joins President's Defense Team PLAINS EXPLORATION: Oral Arguments Heard in Suit Over Merger PROSHARES TRUST: Oral Argument in Class Suit Appeal Held in May PROSPER MARKETPLACE: Continues to Defend Securities Class Suit REMINGTON ARMS: Faces Class Action Over Model 700 Rifle Defect RIGEL PHARMACEUTICALS: No Appeal Filed in Cal. Securities Lawsuit RJ REYNOLDS: NELA Asks 4th Cir. to Revive Class Action SASKATCHEWAN: McCarthy Discusses Class Action Ruling SEQUEL NATURALS: Recalls Vega(R) Brand Bars Over Undeclared Milk SOUTH CAROLINA: High Court Remands Ruling in DPPA Violation Suit SOUTH CAROLINA: Lawyers Banned From Using Data in DMV STELLARONE CORP: Being Sold to Union for Too Little, Suit Claims TAYLOR FARMS: Recalls Black Forest Ham and Cheese on Pretzel Roll TECUMSEH PRODUCTS: Still Faces Canadian Suit Over Lawnmower TECUMSEH PRODUCTS: Antitrust Claims Remain in Compressor Lawsuit TOWNSEND FARMS: Hepa A Victims in San Diego Increase TOYOTA MOTOR: Recalls 242,000 Prius & Lexus Hybrid Vehicles UBIQUITI NETWORKS: July 9 Oral Arguments in Securities Suit UNCLE T: Recalls Taisun Pineapple Cakes UNITED STATES: Plaintiffs Slam Gov't Stay Motion in Suit v. NSA URS CORPORATION: WGI Ohio Wins Favorable Ruling in "Levee" Suit USEC INC: Former Plant Employees Appeal Dismissal of Suit VENTRUS BIOSCIENCES: Faces "Davison" Class Suit in New York WAL-MART STORES: Seeks Dismissal of Gas Discounts Class Action WARD MANUFACTURING: Faces Class Action Over Defective CSST WARNER CHAPPELL: Faces Class Action Over Unlawful Licensing Fees WARNER MUSIC: Faces Class Action Over Giving Minimum Wages WASHINGTON POST: Colorado Court Junks Pension Fund's Lawsuit * Counsel Trims N.J. Class Action Claims v. Flood Insurers ********* AAA MID ATLANTIC: 3rd Cir. Affirms "Kaymak" Suit Dismissal ---------------------------------------------------------- The United States Court of Appeals for Third Circuit affirmed a District Court judgment entered in THERESA J. HENSON KAYMAK, On behalf of herself and all others similarly situated, Appellant, v. AAA MID ATLANTIC, INC., JOHN DOES 1-10, NO. 12-3776. Theresa Kaymak, a former plaintiffs' class action lawyer, took an appeal from a judgment by the United States District Court for the Eastern District of Pennsylvania that dismissed her Complaint against AAA Mid-Atlantic, Inc. for lack of subject matter jurisdiction. The Complaint, which alleges breach of contract and unjust enrichment, was filed on behalf of Kaymak and a proposed class of "[a]ll current and former members of AAA who paid a full annual renewal fee to AAA after the expiration of their prior membership term, and had their memberships backdated to the prior expiration date." The District Court concluded that Kaymak suffered no "injury in fact" and therefore did not have standing to bring her claim in federal court. The Third Circuit held that the District Court was correct to dismiss the case for lack of subject matter jurisdiction. A copy of the Third Circuit's June 14, 2013 Opinion is available at http://is.gd/vRCqw6 from Leagle.com. ANADIGICS INC: No Further Appeal Filed in Dismissal of Suits ------------------------------------------------------------ In connection with an order by the United States Court of Appeals for the Third Circuit to dismiss with prejudice the Attias and Kuznetz class actions, the plaintiffs did not seek further appellate review, according to Anadigics Inc.'s May 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 30, 2013. On or about November 11, 2008, plaintiff Charlie Attias filed a putative securities class action lawsuit in the United States District Court for the District of New Jersey, captioned Charlie Attias v. Anadigics, Inc., et al., No. 3:08-cv-05572, and, on or about November 21, 2008, plaintiff Paul Kuznetz filed a related class action lawsuit in the same court, captioned Paul J. Kuznetz v. Anadigics, Inc., et al., No. 3:08-cv-05750 (jointly, the "Class Actions"). The Complaints in the Class Actions, which were consolidated under the caption In re Anadigics, Inc. Securities Litigation, No. 3:08-cv-05572, by an Order of the District Court dated November 24, 2008, sought unspecified damages for alleged violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as well as Rule 10b-5 promulgated thereunder, in connection with alleged misrepresentations and omissions in connection with, among other things, Anadigics's manufacturing capabilities and the demand for its products. On October 23, 2009, plaintiffs filed a Consolidated Amended Class Action Complaint, (the "First Amended Complaint"), which named the Company, a then-current officer and a former officer-director, and alleged a proposed class period running from July 24, 2007 through August 7, 2008. On December 23, 2009, defendants filed a motion to dismiss the First Amended Complaint. After holding extensive oral argument on defendants' motion, the District Court found plaintiffs' First Amended Complaint to be deficient, but afforded them another opportunity to amend their pleading. The District Court therefore denied defendants' motion to dismiss without prejudice to defendants' renewing the motion in response to plaintiffs' Second Amended Complaint, which plaintiffs filed on October 4, 2010. The Second Amended Complaint, which contained the same substantive claims that were alleged in the First Amended Complaint, alleged a proposed class period running from February 12, 2008 through August 7, 2008. Defendants filed a motion to dismiss the Second Amended Complaint on December 3, 2010. By an Opinion and an Order dated September 30, 2011, the District Court dismissed with prejudice plaintiffs' Second Amended Complaint. Shortly thereafter, plaintiffs appealed the District Court's Opinion and Order to the United States Court of Appeals for the Third Circuit. On October 17, 2012, following briefing and argument, the Court of Appeals affirmed the District Court's dismissal with prejudice of plaintiffs' claims. ARBITRON INC: Has MOU to Settle Securities Suit Over Merger ----------------------------------------------------------- Parties to a shareholder action filed against Arbitron Inc. over a merger agreement with TNC Sub I Corporation, an indirect wholly owned subsidiary of Nielsen Holdings N.V., entered into a memorandum of understanding providing for a 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. On January 24, 2013, a putative class action lawsuit was filed in the Court of Chancery of the State of Delaware regarding the proposed Merger. The complaint ("Complaint") was purportedly filed on behalf of the public shareholders of the Company, and names as defendants, the Company, each of the Company's directors, Merger Sub, and Nielsen. The Complaint alleged, among other things, that the Company's directors breached their fiduciary duties by failing to maximize shareholder value in a proposed sale of the Company. The Complaint further alleged that the Company's preliminary proxy statement failed to provide material information and provided materially misleading information relating to the Merger and that the Company and Nielsen aided and abetted the alleged breaches by the Company's directors. The plaintiff sought, among other things, class action status, an injunction preventing the completion of the Merger (or, if the Merger were completed, rescinding the Merger or awarding rescissory damages), and the payment of attorneys' fees and expenses. On March 7, 2013, the parties to the litigation entered into a memorandum of understanding (the "MOU") providing for a settlement, subject to court approval, of the action on behalf of the named plaintiff and a class of the shareholders affected by the transaction (the "Settlement"). The Settlement will be submitted to the Court of Chancery for approval. If approved by the Court of Chancery, the Settlement will resolve all of the allegations and claims asserted by the plaintiff and the class against all defendants in connection with the Merger and will further provide for the release and settlement by the class of the Company's shareholders of all claims against all of the defendants and their affiliates in connection with the Merger. As part of the MOU, all of the defendants denied all allegations of wrongdoing and denied that the disclosures made by the Company in the Company's preliminary proxy statement on Schedule 14A as filed on January 18, 2013 were inadequate, but the Company agreed to provide certain additional disclosures in its definitive proxy statement relating to the Merger and to waive the "no-ask, no- waiver" provision in the existing confidentiality agreements. The Settlement will not affect the form or amount of consideration to be paid to the Company's shareholders in the Merger. ARIZONA: 9th Cir. Affirms Ruling in Suit Over Proposition 100 ------------------------------------------------------------- Tim Hull at Courthouse News Service reports that Arizona is not trying to punish and control illegal immigration by denying bail to illegal immigrants charged with a serious felony, the 9th Circuit ruled June 18, 2013. The federal appeals court in San Francisco found that the 2006 voter-approved law known as Proposition 100 is meant to further "the legitimate goal of controlling flight risk," and does not violate the U.S. Constitution. Angel Lopez-Valenzuela, who was denied bail for a drug-smuggling charge, and Isaac Castro-Armenta, who was denied bail for aggravated assault with a deadly weapon, kidnapping, and assisting a criminal syndicate, had hoped to represent a class against Maricopa County, Sheriff Joe Arpaio and others. Their ACLU-filed 2007 complaint claimed that it violated their due-process rights set down in the Sixth, Eighth and 14th Amendments to prohibit bail for all suspected illegal immigrants charged with certain felonies. Phoenix-based U.S. District Judge Susan Bolton granted the defendants summary judgment, and a divided three-judge panel of the 9th Circuit affirmed June 18, 2013. While illegal immigration definitely came up in the March 2005 committee meeting during which lawmakers discussed the bill that eventually became Prop. 100, "the record as a whole does not show that Proposition 100 was motivated by an improper punitive purpose," Judge Richard Tallman wrote for the majority. The bill's sponsor, then-Rep. Russell Pearce, who would later be the driving force behind the state's controversial S.B. 1070, "mentioned flight risk and public safety as the primary reasons behind the Proposition 100 laws three different times" during the meeting, Tallman found. "Thus, while it is clear from the record that Arizona lawmakers were concerned with the effects of illegal immigration when they were debating the Proposition 100 laws, a fair reading of the record does not support Plaintiffs-Appellants' argument that Proposition 100's primary purpose is to punish and deter immigration offenses," he wrote. Dan Pochoda, legal director of the ACLU of Arizona, said his team is discussing the ruling and "considering seeking en banc review." Judge Raymond Fisher used a lengthy dissent to also single out Pearce, who fell victim to a citizen recall effort in 2011. Fisher noted that "Rep. Pearce promoted the bill on the ground that 'all illegal aliens in this country ought to be detained, debriefed and deported.'" Such rhetoric shows a strong punitive approach to lawmaking, and it reveals the philosophy behind a law that "contravenes the Constitution's fundamental prohibition on punishment before determination of guilt in a criminal trial," the dissent states. "Arizona . . . has decided to deny pretrial bail to all persons arrested for a range of felony crimes who are in the United States without authorization, theorizing they are likely to flee the country solely because of their immigration status," Fisher added. "Without any evidence that unauthorized immigrants released on bail have been or are less likely to appear for trial compared to arrestees who are lawful residents, the majority accepts Arizona's unsupported assertion that all unauthorized immigrants necessarily pose an unmanageable flight risk, such that a blanket denial of bail is not an 'excessive' tool to combat flight risk. As revealed by Proposition 100's legislative history and scope, however, Arizona is plainly using the denial of bail as a method to punish 'illegal' immigrants, rather than simply as a tool to help manage arrestees' flight risk." ARIZONA: Court Unwilling to Enact House Bill 2800 ------------------------------------------------- Dave Tartre at Courthouse News Service reports that the 9th Circuit seemed unwilling two weeks ago to let Arizona enact legislation intended to deprive funding from Medicaid providers who perform abortions. House Bill 2800, which Arizona voters passed last year, said the state "may not enter into a contract with or make a grant to any person that performs non-federally qualified abortions or maintains or operates a facility where non-federally qualified abortions are performed for the provision of family planning services." Planned Parenthood of Arizona, Eric Reuss M.D. and several Jane Does sued that summer, saying the law would deprive women in Arizona of federally protected rights to family planning services. The plaintiffs sought a declaration that the Medicaid Act allows patients to receive services from the qualified, willing provider of their choice. Their lawsuit also said that Arizona's bill violates the "Equal Protection Clause because it distinguishes, without adequate justification, between family planning providers who provide abortion outside the Medicaid program and those who do not." U.S. District Judge Neil Wake halted enactment of the law earlier this year after finding that Arizona had overreached its authority under the U.S. Medicaid Act to place the condition on the provision of Medicaid services. "[HB 2800] impermissibly disqualifies a class of providers from the state's Medicaid program for reasons unrelated to provider qualifications," Wake wrote. "Defendants present a strained interpretation of the word "qualified" that would include any reasonable criteria a state sees fit to impose, regardless of whether the criteria relates to the ability to provide Medicaid services," Wake said. Arizona's attorney told a three-judge panel of the 9th Circuit on June 12, 2013, however, that his state could define the term "qualified" as it sees fit. "The definition of 'qualified,' according to the statutory framework and the explicit regulation, is supplied by the states," said Steven Aden of the Alliance Defending Freedom, who appeared in the 9th Circuit as a special attorney general for Arizona. "They have the authority to impose reasonable qualifications. The only serious question left is whether HB 2800 is a reasonable qualification on providers, and the state maintains that it is." Judge Jay Bybee was incredulous. "What's rational about it?" he asked. "What's reasonable about it?" Aden cited "a couple of reasons." "The state of Arizona has a longstanding policy against subsidizing elective abortions," he noted. Bybee, though, doubted that the word "qualified" as used in the Medicaid Act gives states the authority to place requirements on providers beyond the licensing requirements that health care facilities and medical professionals must already meet. "Arizona hasn't disqualified the providers at Planned Parenthood from practicing medicine in Arizona," he noted. Planned Parenthood attorney Alice Clapman said that Judge Wake had correctly found that there is nothing vague about the Medicaid Act's qualification requirements. "Despite defendant's best efforts, the term qualified in the statute does have a specific meaning," she said. "What Congress had in mind when it referred to qualified providers were providers who are competent, who are professionally qualified." "Congress was referring only to professional qualifications, not to some free-floating state authority to pick and choose which providers could participate," Clapman added. Judge Marsha Berzon asked Clapman whether states could add any additional requirements, for example involving criminal background checks or proof of financial responsibility. Clapman replied that states could individually disqualify providers in cases of fraud or abuse under a separate section of the statute than the free-choice provision. She said that even Arizona had not questioned whether the plaintiffs, Planned Parenthood of Arizona and Dr. Reuss, were professionally qualified under any ordinary sense of the term. "The free-choice provision is enforceable and it prohibits measures such as Arizona's that attempt to restrict patient choice for reasons that have no relationship a provider's professional fitness to provide the services needed," Clapman said. AT&T MOBILITY: Arbitration Ruling in "Short" Class Suit Upheld -------------------------------------------------------------- Charlene Shorts, by counsel Christopher J. Regan, appealed from an order entered July 25, 2011, by the Circuit Court of Brooke County which granted AT&T Mobility, LLC and AT&T Mobility Corporation's Motion to Compel Arbitration. Ms. Shorts asserts that: the circuit court erred in applying the wrong in granting AT&T Mobility's Motion to Compel Arbitration; the contract which the circuit court should have applied was unconscionable; the contract provisions applied by the circuit court were also unconscionable and the circuit court failed to allow discovery regarding this issue; and the circuit court erred in requiring the parties to arbitrate the claims involving Palisades Collection, LLC. The appeal was timely perfected by counsel, and the appendix record accompanied the petition. AT&T Mobility filed its response. The Supreme Court of Appeals of West Virginia finds that the circuit court did not err in granting AT&T Mobility's Motion to Compel Arbitration. The Supreme Court of Appeals affirmed the the underlying decision saying it finds that the case presents no new or significant questions of law, and, thus, will be disposed of through a memorandum decision as contemplated by Rule 21 of the Rules of Appellate Procedure. The case is CHARLENE A. SHORTS, Petitioner Below, Petitioner, v. AT&T MOBILITY and AT&T MOBILITY CORPORATION and, PALISADES COLLECTION, LLC, Respondents Below, Respondents, NO. 11-1649. A copy of the Supreme Court's June 17, 2013 Memorandum Decision is available at http://is.gd/jkb8Sl from Leagle.com. ATLANTICUS HOLDINGS: "Knox" Suit Still Pending in North Carolina ---------------------------------------------------------------- A purported class action lawsuit entitled Knox, et al., vs. First Southern Cash Advance, et al., No. 5 CV 0445, filed in the Superior Court of New Hanover County, North Carolina, on February 8, 2005, named CompuCredit Corporation (now known as Atlanticus Services Corporation) and five of Atlanticus Holdings Corporation's other subsidiaries as defendants. The plaintiffs allege that in conducting a so-called "payday lending" business, certain subsidiaries within the Company's former Retail Micro- Loans segment (the operations of which were sold in October 2011, subject to the Company's retention of liability for this litigation) violated various laws governing consumer finance, lending, check cashing, trade practices and loan brokering. The plaintiffs further allege that CompuCredit Corporation was the alter ego of the subsidiaries and is liable for their actions. The plaintiffs are seeking damages of up to $75,000 per class member, and attorney's fees. These claims are similar to those that have been asserted against several other market participants in transactions involving small-balance, short-term loans made to consumers in North Carolina. On January 23, 2012, among other orders, the trial court denied the defendants' motion to compel arbitration, and granted the plaintiffs' motion for class certification. The Company says it is vigorously defending this lawsuit. 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. Atlanticus Holdings Corporation -- http://www.Atlanticus.com-- a Georgia Corporation headquartered in Atlanta, provides financial services. Through its subsidiaries, the Company offers financial products and services to a market represented by credit risks that regulators classify as "sub-prime." On November 30, 2012, the Company changed its name from CompuCredit Holdings Corporation to Atlanticus Holdings Corporation. AUSTRALIA: May Face Payout of AU$1+ Billion in Flooding Suit ------------------------------------------------------------ Peter Foley, writing for Caboolture News, reports that Ipswich councilor Paul Tully says the State Government faces a payout of more than AUD1 billion if it is proven Wivenhoe Dam was negligently managed in the lead-up to the 2011 flood. Cr Tully said Australia's largest class action was going ahead against the State Government over the 2011 Brisbane River flood. He said Maurice Blackburn Lawyers confirmed they will be proceeding with the lawsuit in the Queensland Supreme Court on behalf of victims of the flood which affected 29,000 homes and businesses in Brisbane and Ipswich. The announcement, he said, was the "best news for flood victims since January 2011". "I am urging all flood victims, including home and business owners, renters and anyone else who has suffered losses as a result of the 2011 flood, to sign up for the class action," Cr Tully said. "This is likely to be the first and only opportunity for flood victims to recover the losses they suffered in the flood. Flood victims have nothing to lose and everything to gain by signing up for the no-win, no-fee class action." Cr Tully who lost his home at Goodna said it was hardest-hit suburb in south-east Queensland with 600 properties destroyed. "The Floods Commission of Inquiry specifically found the Wivenhoe Dam had not been managed in accordance with the official operating manual from 8am on the Saturday preceding the flood on Tuesday, January 11, 2011," he said. "I am confident the class action will be successful. "I am urging the State Government to act as a model litigant in this matter and not rely on legal technicalities to resist the legitimate claims of flood victims who have suffered enough." A Maurice Blackburn spokeswoman said: "Maurice Blackburn will be providing an update to people and businesses who have registered for the floods class action shortly, and we will be making an announcement on the status of the action after that." BANKRATE INC: Continues to Defend "Speight" Suit in Colorado ------------------------------------------------------------ Bankrate, Inc., continues to defend itself against a class action lawsuit commenced by Stephanie Speight in Colorado, 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 October 5, 2012, a putative class action lawsuit styled Stephanie Speight v. Bankrate, Inc. was filed against the Company in the United States District Court for the District of Colorado alleging violations of the Telephone Consumer Protection Act and seeking statutory damages, injunctive relief and attorney fees. The plaintiff alleges that the Company contacted her and the members of the class she seeks to represent on their cellular telephones without their prior express consent. The Company says it will vigorously defend this lawsuit. The Company cannot presently estimate the amount of loss, if any, that would result from an adverse resolution of this matter. Based in North Palm Beach, Florida, Bankrate, Inc. is a publisher, aggregator and distributor of personal finance content on the Internet. The Company provides consumers with personal finance editorial content across multiple vertical categories, including mortgages, deposits, insurance, credit cards, and other categories. BELO CORP: Being Sold to Gannett for Too Little, Suit Claims ------------------------------------------------------------ Courthouse News Service reports that Belo Corp. is selling its 20 TV stations too cheaply to Gannett for an unfair price, for the benefit of insiders, for $13.75 per share or $1.5 billion, shareholders claim in a class action in Dallas County Court. BETA LABS: Recalls Oxyphen, Phentalene, Phen FX and Red Vipers -------------------------------------------------------------- Beta Labs, LTD ("Beta"), dietary supplement retailer, is recalling Oxyphen XR Lot #s 200910 and 200911, Phentalene Lot # 58800512, Phen FX Lot # 1205129, and Red Vipers Lot # 1205128 (hereinafter referred to as the "Products"). The recall was initiated on June 15, 2013, after a review of recent FDA communications related to 1,3 dimethylamylamine ("DMAA"). The Products contain DMAA. The UPC codes for each of the products are: Oxyphen XR, 70541 59974; Phentalene, 70541 59982; Phen FX, 29882 55980; Red Vipers, 29882 55981. The Products are all in capsule form. DMAA is commonly used as a stimulant, pre-workout, and weight loss ingredient in dietary supplement products. The Food and Drug Administration (FDA) has warned that DMAA is potentially dangerous to health. See http://www.fda.gov/ForConsumers/ConsumerUpdates/ucm347270.htm Ingestion of DMAA can elevate blood pressure and lead to cardiovascular problems. A number of adverse effects associated with DMAA containing dietary supplements have been reported to the FDA. The FDA has also warned that DMAA is not a dietary ingredient and thus, is not Dietary Supplement Health and Education Act (DSHEA) compliant. This recall affects Oxyphen XR Lot #s 200910 and 200911, Phentalene Lot # 58800512, Phen FX Lot # 1205129, and Red Vipers Lot # 1205128. The products are in capsule form. Pictures of the Products are available at: http://www.fda.gov/Safety/Recalls/ucm358237.htm Beta distributes dietary supplements to retailers. The Products were sold via telephone in all fifty (50) United States. There have been no reports of adverse events associated with these Products to date. No other products distributed by Beta are subject to recall. Consumers who may have purchased the affected lot numbers of Oxyphen, Phentalene, Phen FX, and/or Red Vipers should immediately discontinue using the products and contact their health care professional if they have experienced any adverse effects. Consumers can contact Beta at accounting@betalabs.net or call 1-877-283-1742, Monday - Friday, 10:00 a.m. - 5 p.m. Central Standard Time to receive further instructions for returning the product(s), refunds, or with any questions. The Company sincerely regrets any inconvenience to consumers. This is a voluntary recall. This recall is being made in cooperation with the US Food and Drug Administration. Adverse reactions or quality problems experienced with the use of these product(s) may be reported to the FDA's MedWatch Adverse Event Reporting program online, by regular mail, or by fax. The form and instructions for the form may be found at http://www.fda.gov/Medwatch/getforms.htm BP PLC: $573 Million in Oil Spill Claims Paid in Alabama -------------------------------------------------------- Stan Diel, writing for Al.com, reports that more than 32,367 individuals and businesses in Alabama have filed claims in a class action lawsuit against BP over its 2010 Gulf of Mexico oil spill, but many who might qualify for settlement funds have yet to file, Alabama Attorney General Luther Strange and a court-appointed settlement fund administrator said on June 5. Of the claims filed thus far in Alabama, about 9,600 have been declared eligible and $573 million has been paid to Alabama claimants. "That's in excess of half a billion dollars in Alabama so far," said Patrick Juneau -- paj@juneaudavid.com -- the Louisiana attorney administering $7.8 billion in settlement funds for claims filed in five states. The team of administrators and accountants assessing claims has thousands of Alabama claims it has yet to consider, he said. In total, 172,000 claims have been filed in five states, and administrators have paid $3.5 billion. Merss. Juneau and Strange met with business leaders and attorneys in Birmingham, Huntsville and Cullman on June 5 in a series of meetings Luther arranged to spread the word and help businesses that lost revenue to the oil spill recover their losses. Businesses don't have to be located on the coast to qualify, they said. To qualify for funds businesses must use a system designed specifically for the case to demonstrate that they lost revenue to the oil spill. Businesses must demonstrate that their revenue during three consecutive months between May and December of 2010 was 15 percent lower than during a benchmark period from before the oil spill, and that revenue over the same three month period in 2011 was at least 10 percent higher than during the oil spill months. Claims must be accompanied by documents including federal tax returns. Much of the class action lawsuit that spawned the settlement agreement for affected businesses and individuals has not been resolved, but the window for business claims covered by the deal will close in April of next year. Many businesses not located near the coast have failed to file claims because they assumed they would not qualify, and owners of such businesses should take a closer look at the terms of the settlement, Messrs. Juneau and Strange said. "My recommendation is to at least do that," Mr. Strange said. "It doesn't cost anything." The BP Deepwater Horizon spill in April of 2010 dumped 5.9 million barrels of oil into the Gulf, more than 17 times the amount of crude that was spilled by the wreck of the Exxon Valdez tanker in 1989. In the lawsuit for which Juneau is administering claims Alabama, Louisiana, Florida, Texas and Mississippi sued BP and seven other defendants. Mr. Strange said it would be a mistake for the state to leave settlement money on the table in light of the severity of the disaster. "The entire coastline of Alabama was covered in oil," he said. "There was tremendous damage done to the state of Alabama." Claims can be filed, and more information found, on a website established by the fund administrator. BRITISH COLUMBIA: Court Begins Hearing in Doctors' Fee Suit ----------------------------------------------------------- CMAJ reports that Madam Justice Elaine Adair of the BC Supreme Court has begun hearing a class action lawsuit involving 7000 doctors, including the province's former health minister, who are trying to recover fees they claim British Columbia owes them. Dr. James Halvorson, the lead plaintiff in the lawsuit, is suing the Medical Services Commission over fees the doctors say they should have received from 1992 to 1996, when the province cancelled the enrolment of BC residents who did not pay Medical Service Plan premiums. The problems for physicians arose when they tried to bill the province after treating patients whose membership in the Medical Service Plan had been cancelled, unbeknownst to the doctors, who had no way of checking the patients' status. The doctors' payment claims were rejected. Dr. Halvorson, an emergency physician from Duncan, British Columbia, says emergency doctors were hit hardest, because patients without coverage were often referred to them. As a policy, they did not turn emergency cases away. Dr. Halvorson says he alone is owed upwards of C$100 000. The lawsuit, which Justice Adair began hearing Apr. 22 to 24, seeks about C$100 million in unpaid fees for close to 400,000 uninsured patients. "The medical care for all of those people was strictly on the backs of the medical physicians involved," says Dr. Halvorson. "It was not an insignificant problem." During the period that the lawsuit covered, BC collected transfer payments from the federal government to cover the cost of uninsured patients, which Dr. Halvorson says the province did not pass on to the physicians. The government contends it had the legal authority to cut residents from the health insurance plan if they had failed to pay their premiums. The cost of premiums varies in British Columbia, from C$64 a month for an individual to C$128 for a family of three. Government subsidies of between 20% and 100% are available to individuals earning an annual income of less than C$30 000. Dr. Halvorson initially brought suit in October 1998, but it has taken until now, through a series of decisions and appeals, to get certified as a class action and to finally get a hearing in the province's top court. "We had a lot of procedural roadblocks in the way," says Arthur Grant, the lawyer representing the plaintiffs. He hopes the suit will be resolved by fall. The class action applies, by court order, to all doctors practicing in BC between July 23, 1992 and Apr. 30, 1996 -- including Dr. Margaret MacDiarmid, a family doctor who served as BC's health minister from the fall of 2012 until her defeat in the provincial election May 14. Facing a potential conflict of interest, Dr. MacDiarmid had written to Justice Adair asking to be excluded from the lawsuit. It is unclear whether she will still opt out now that her conflict of interest no longer exists. On June 6, the Medical Service Plan system is computerized, so doctors can check a patient's status before they treat them. In 2012, nearly 1 million British Columbians received premium assistance, and more than 800,000 of them did not pay any premiums. "I think we would be better served by not having a premium-based system," says Dr. Halvorson, who feels health care should be universal, and paid for out of general funds. "It's a mindset that I would love to see changed," he says. BURLINGTON, WA: Trial in Suit Over Indigent Representation Begins ----------------------------------------------------------------- The Associated Press reports that trial to determine whether two Washington cities provide adequate legal representation to poor charged with crimes begins. Elia Bright, who has a long history of legal scrapes, sat in the Skagit County Jail in September 2010 and wrote her court-appointed lawyer a couple of urgent messages. First, she said she wanted to know why her release date had been delayed by 10 days. Then, two days later, she sent him another missive. "My uncle just passed away last night. Can you please contact me ASAP so I can see if I can get out for a couple hours for his funeral?" she wrote, signing it "XOXO, Elia." The lawyer, Morgan Witt, never responded to either note -- an all- too-typical response from the public defenders representing poor people who are accused of crimes in the Skagit County cities of Burlington and Mount Vernon, according to a class-action lawsuit that was set to head to trial in federal court on June 3. The trial, before U.S. District Judge Robert Lasnik, comes as Washington's Supreme Court is taking steps to improve the representation of indigent defendants across the state. The high court last year adopted new caseload limits for public defenders in an effort designed to make sure the lawyers have enough time to devote to their clients. The justices acknowledged the financial burden their decision would place on cash-strapped cities and counties, but said the move is essential in guaranteeing that everyone has adequate legal representation. The American Civil Liberties Union of Washington sued Burlington and Mount Vernon two years ago, alleging a litany of shortcomings that systematically violated poor defendants' constitutional rights to effective lawyering. From April 2005 to 2012, the organization noted, those services were provided by just two part- time lawyers, Witt and Richard Sybrandy, who combined handled more than 2,000 cases a year. The lawyers virtually never visited with their clients in jail, investigated their cases or did much of anything besides urge them to plead guilty, the lawsuit claims. The plaintiffs are seeking a permanent injunction and the appointment of a part-time public- defense supervisor to ensure basic legal standards are met. The cities deny that they ever systematically violated the rights of defendants and say they've already made vast improvements, as Burlington and Mount Vernon judges, prosecutors and others will testify, Andrew Cooley, a lawyer for the cities, wrote in a trial brief. "The cities will show a complete overhaul of their public defense system in compliance with new Washington Supreme Court standards," Mr. Cooley wrote. "The cities now welcome the opportunity to present the real people doing the work on the ground level to make the cities' public defense system a model of medium-sized municipal criminal justice." Among the changes the cities cite is that a new firm now holds the public defense contract for the city, with four lawyers handling the cases at double the pay rate. They lawyers also use an improved case-tracking system and are already certifying that they are abiding by the state Supreme Court's new caseload limits, which take effect this fall, the cities say. Mr. Cooley said an injunction would pose a severe burden on the cities -- and, significantly, allow the plaintiffs to seek to have the cities pay their attorneys' fees. In declining to rule on the merits of the case before trial, Judge Lasnik noted that the defendants had "taken significant steps to change their system of public defense, including hiring additional public defenders and paying them more for their services." Nevertheless, he said, "the record contains evidence from which a reasonable jury could conclude that indigent defendants in Mount Vernon and Burlington are currently being deprived of counsel in violation of constitutional mandates." The ACLU says it believes the current public defenders continue to be greatly overworked and to handle more cases than allowed by the Supreme Court's new standards -- 400 misdemeanor cases per full- time lawyer per year. The firm's attorneys opened more than 2,000 cases during an eight- month period last year, and yet only hired a defense investigator four times and brought only seven cases to trial, the plaintiffs' attorneys wrote in a trial brief. "The public defenders in Mount Vernon and Burlington have had grossly excessive caseloads and spend too little time on each case, which makes it impossible for them to represent their clients. The cities are not meeting their duty to ensure that low-income individuals have a fair chance to defend themselves in court," Sarah Dunne, legal director at the ACLU of Washington, said in a statement. Opening statements were scheduled for June 3. The trial set to last up to 15 days, is being heard by the judge without a jury. CANADA: Lawyer Says RCMP Suit May Face Delay Without Mediation -------------------------------------------------------------- Jamie Smith, writing for Thunder Bay News, reports that a local lawyer who is part of a class action lawsuit against the RCMP says the case should be in front of a judge or the force needs to start mediating. Sandy Zaitzeff -- szaitzeff@watkinslawtbay.com -- is part of a class action suit from nearly 300 current and former female RCMP officers who allege discrimination, sexual harassment and abuse from coast-to-coast. On June 4, the case of RCMP veteran Janet Merlo was heard in a B.C. courtroom where lawyers argued the suit should go ahead. But Mr. Zaitzeff said Crown attorneys filed a motion that would set the case back. "For one reason," he said in Thunder Bay on June 5. "Delay, delay, delay." Mediation could have the suit wrapped up in as little as a year. But if the government continues to try and delay the proceedings, Mr. Zatizeff said it could take a decade. "We won't shrug our shoulders and walk away it'll just take longer and that's what they want," he said. In the meantime, Mr. Zaitzeff said victims and their families, some who suffer from post-traumatc stress disorder and are without income, continue to suffer. "The longer this takes the tougher it is," he said. "We're talking about ruined relationships, lost marriages, children that are suffering PTSD." While there is compensation involved, Mr. Zaitzeff said the victims want the truth about the RCMP and the way it has functioned for more than 50 years to come to light and significant changes made. "What the women want first and foremost is that it becomes a matter of public record, that everybody knows about the abuses, the bullying, the harassment, the sexual innuendos, the sexual assaults that everybody knows about this. That Canada knows," he said. But that won't happen until evidence on both sides can be presented either in court or through mediation Mr. Zaitzeff said. None of the allegations have been proven in court. CFS: Seeks Dismissal of Class Action Over 2005 Bushfire ------------------------------------------------------- Sean Fewster, writing for adelaidenow, reports that the deadly Black Tuesday bushfires were beyond anyone's capacity to control and the CFS is therefore not liable for the damage they caused, a court has heard. Lawyers for the CFS on June 6 asked the Supreme Court to throw out a multimillion-dollar class action lawsuit filed by Eyre Peninsula farmers. Grazier Robert Proude and his peers claim the volunteer organization mis-managed the 2005 fires that destroyed their land and livestock, and want compensation. The fires killed nine people, burned 77,000ha and destroyed 93 homes near Port Lincoln. On June 6, Dick Whitington, QC, for the CFS, said that claim could not succeed at trial. "This is a plain case where the CFS had no practical capacity to control this sort of risk," he said. "The CFS could have stayed home during the bushfires, or the state could have never have established the CFS, and the fire would still have spread in the way it did. "The CFS had no practical capacity to control the fire." In December 2007, Deputy State Coroner Anthony Schapel found the CFS had mismanaged the fires, which were started by the exhaust of Marco Visic's 4WD. Mr. Proude filed action against Mr. Visic and the CFS. He claimed the total value of his destroyed property, including 2205 sheep, was $1,862,795. Other graziers subsequently joined his claim, turning it into a class action. Mr. Visic, meanwhile, filed his own action against the CFS. He said any award of compensation should come from CFS coffers, not out of his wallet, because of the organization's "misfeasance". He said the CFS failed to deploy waterbombing aircraft, preferring to hold them in reserve in case of fire in the Adelaide metropolitan area. The hearing, before Justice Malcolm Blue, is expected to take three days. CITIZENS FINANCIAL: Sheppard Mullin Discusses Court Ruling ---------------------------------------------------------- Brian D. Murphy, Esq., and Jonathan Sokolowski, Esq., at Sheppard, Mullin, Richter & Hampton LLP, report that on May 29, 2013, the United States Court of Appeals for the Second Circuit issued its opinion in Cuevas v. Citizens Financial Group, Inc. and RBS Citizens, N.A., Case No. 12-2832, reversing the Eastern District of New York's grant of Rule 23 class certification to a putative class of Assistant Branch Managers ("ABMs") alleging that they were denied overtime. In a summary order, the Court held that the District Court failed to resolve factual disputes concerning the duties performed by putative class members, which were material to its ability to issue a ruling concerning commonality under Rule 23(a) and predominance under Rule 23(b)(3). The plaintiff commenced an action in the Eastern District of New York alleging that he and other ABMs were misclassified as exempt and denied overtime in violation of the New York Labor Law. The plaintiff moved pursuant to Rule 23 of the Federal Rules of Civil Procedure for an order certifying the class. The District Court granted the motion, rejecting the defendant's reliance on declarations demonstrating a significant variance in the duties performed from one ABM to the next in favor of "company-wide policy documents" that contemplated the performance of uniform duties. According to the Hon. Frederic Block, the variations did not preclude the plaintiff from establishing commonality or predominance because of the existence of uniform job descriptions, performance expectation guidelines, and performance evaluations. The Second Circuit vacated the judgment and remanded the case for further proceedings. Relying on the Supreme Court's decisions in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) and Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the Court explained that a class may not be certified unless a "rigorous analysis" demonstrates that each prerequisite to maintaining a class action has been satisfied. Moreover, such determinations cannot be made without resolving factual disputes relevant to each prerequisite. More specifically, the Court first reviewed the District Court's determination as to commonality and held that, prior to analyzing commonality, the District Court should have resolved factual disputes concerning the primary duties of the ABMs because they "are relevant to the determination whether Cuevas has presented a claim that is capable of classwide resolution." For similar reasons, the Court vacated the District Court's determination as to Rule 23(b)(3) predominance because it failed to resolve "material factual disputes arising from the conflicting declarations" prior to a rigorous application of the predominance inquiry. That is, the Court held that factual disputes concerning the violations alleged must be resolved prior to the Rule 23 analysis instead of merely being a factor as to whether the certification requirements are met. Notably, while vacating the district court's certification order and remanding for further consideration, the Second Circuit also reaffirmed its dicta in Myers v. Hertz Corp. stating that exemption is not an "inherently individualized inquiry, such that class treatment will never be appropriate in exemption cases." Nonetheless, before certifying a class in such cases, the court explained that district courts must "rigorously analyze[] the record, weigh[] the conflicting evidence, resolve[] material factual disputes, and determine[]that subsidiary questions involved in resolving exemption will be answerable through evidence generally applicable to the class." The Second Circuit's decision to vacate the district court's certification order for failing to sufficiently analyze the evidence is a positive development for employers faced with wage and hour claims premised on misclassification. In particular, the Court's reliance on Dukes and Comcast indicates a growing receptiveness among the Courts to the utility of such cases in defeating certification. Accordingly, an appropriate discovery strategy that accounts for these developments can equip an employer to either defend against Rule 23 certification motions or to offensively move to deny Rule 23 certification. COLE CREDIT: Faces Class and Derivative Suits Over CHC Merger ------------------------------------------------------------- Cole Credit Property Trust III, Inc., is facing class action and derivative lawsuits arising from its merger with Cole Holdings Corporation, according to the Company's May 10, 2013, Form 8-K/A filing with the U.S. Securities and Exchange Commission. On March 5, 2013, Cole Credit Property Trust III, Inc. ("CCPT III"), Cole Holdings Corporation ("CHC" or "Holdings"), Cole Capital Advisors, Inc. ("CCA"), CRE Investments, LLC, a Maryland limited liability company and a wholly owned subsidiary of CCPT III ("Merger Sub"), and Christopher H. Cole (the "Holdings Stockholder") entered into an Agreement and Plan of Merger (the "Merger Agreement"). The Merger Agreement provides for the merger of CHC with and into Merger Sub (the "Merger"), with Merger Sub surviving and continuing its existence under the laws of the state of Maryland as a wholly owned subsidiary of CCPT III. On April 5, 2013, the merger of Holdings, a real estate investment management firm that specializes in investing in and managing real estate and related assets and sponsoring private and public real estate investment programs, with and into a wholly owned subsidiary of the Company, was consummated. In connection with the Merger, on March 20, 2013, a putative class action and derivative lawsuit was filed in the Circuit Court for Baltimore City, Maryland against and purportedly on behalf of CCPT III captioned Strub, et al. v. Cole Holdings Corporation, et al. ("Strub"). The complaint names as defendants Holdings; Cole REIT Advisors III, LLC ("CR III Advisors"); Merger Sub; CCA, Equity Fund Advisors, Inc. ("EFA"), Cole Capital Corporation ("CCC") and Cole Realty Advisors, Inc. ("CRA") (together, "Cole Holding Entities"); each of the directors of CCPT III; and CCPT III. Among other allegations, Strub alleges that the defendants breached their fiduciary duties of loyalty, candor and due care by causing CCPT III to enter into the Merger Agreement, failing to implement appropriate measures to ensure that CCPT III's relationship with CR III Advisors did not become a vehicle for wrongful self-dealing, failing to consider and explore strategic alternatives to the Merger, failing to seek stockholder approval of the Merger, and by engaging in self-interested and otherwise conflicted actions. Strub seeks, among other relief, a declaration that the conduct of the defendants is a breach of fiduciary duty or aiding and abetting such breaches and that the Merger Agreement is null and void; awarding damages and restitution, and disgorgement by each director; and an award of the plaintiffs' reasonable attorneys' fees. On March 28, 2013, Strub sought a temporary restraining order against the Merger closing until stockholder approval was obtained. The court denied the motion for injunction on April 5, 2013, finding that stockholder approval was not required in order for the Merger to be consummated. On March 25, 2013, a putative class action lawsuit was filed in the Circuit Court for Baltimore City, Maryland captioned Rodgers v. Cole Credit Property Trust III, et al. ("Rodgers"). This complaint names as defendants CCPT III; Cole REIT III Operating Partnership, LP ("CCPT III OP"); CR III Advisors; Merger Sub; and each of CCPT III's directors. Among other allegations, Rodgers alleges that CCPT III's directors breached their fiduciary duties by entering into the Merger Agreement, failing to provide transparency and a stockholder vote, structuring the transaction to prevent other potential buyers from buying CCPT III, and failing to disclose to stockholders a third party's interest in acquiring CCPT III. Rodgers seeks, among other relief, a declaration that the defendants have committed a gross abuse of trust and have breached and/or aided and abetted breach of fiduciary duties; that the Merger is therefore unlawful and unenforceable, and that the Merger and any related agreements should be rescinded and invalidated; imposing a constructive trust in favor of the plaintiff and class on any benefits, property or value improperly received by defendants as a result of wrongful conduct; enjoining defendants from consummating the Merger until CCPT III has a process to obtain a merger agreement providing best possible terms to stockholders; rescinding the Merger to the extent implemented or granting rescissory damages; awarding compensatory damages and interest; awarding costs, including reasonable attorneys' fees; and granting further equitable relief that is deemed just and proper. On March 27, 2013, a putative derivative action was filed in the US District Court, Arizona District, captioned Carter v. Cole Holdings, et al. ("Carter"). This complaint names as defendants the Company; CR III Advisors; Merger Sub; each of the CCPT III's directors, and CCPT III as nominal defendant. Carter alleges, among other claims, breach of fiduciary duty; against CCPT III's directors, abuse of control, corporate waste, and unjust enrichment; against the Company and Merger Sub, aiding and abetting breach of fiduciary duty; and against CR III Advisors, breach of contract/implied covenant of good faith and fair dealing. Carter seeks, among other relief, a declaratory judgment that none of CCPT III's directors were independent and therefore lacked authority to approve the Merger, and that the defendants were required to seek stockholder approval of the Merger and the proposals from American Realty Capital Properties, Inc.; damages against all defendants; restitution, disgorgement of all illicit proceeds generated as a result of the alleged wrongful conduct, and punitive damages. On March 28, 2013, a putative class action and derivative action was filed in the circuit court for Baltimore City, Maryland captioned Fortner v. Andruskevich, et al. ("Fortner"). This complaint names as defendants the directors of CCPT III, Merger Sub, the Company, and CCPT III as nominal defendant. Fortner alleges, among other causes of action, breach of fiduciary duty and aiding and abetting of breach of fiduciary duty; and unjust enrichment. Fortner seeks, among other relief, class certification; an injunction against transactions contemplated by the Merger; an injunction against any agreements or acquisitions that inhibit maximization of shareholder value; any acquisition of a related entity without shareholder vote; damages, restitution; and certain costs and expenses. On April 8, 2013, a putative class action and derivative action was filed in the US District Court, Arizona District, captioned Schindler v. Cole Holdings Corporation, et al. ("Schindler"). Schindler names as defendants the Company; CR III Advisors: Merger Sub; the directors of CCPT III; and CCPT III as nominal defendant. The complaint alleges, among other causes of action, violations by the CCPT III's directors of Section 14(a) of the Securities Exchange Act of 1934 (relating to proxy solicitation); by CCPT III's directors, CR III Advisors and the Company of Section 20(a) of the Securities Exchange Act of 1934 (relating to controlling person liability and aiding and abetting); breaches of fiduciary duty; unjust enrichment; and corporate waste. Schindler seeks, among other relief, class certification; a declaration that CCPT III's proxy statements are false and misleading; disclosure changes in proxy materials and an injunction regarding the shareholder vote until such changes are made; changes in corporate governance; and restitution. On April 19, 2013, Schindler filed a motion for preliminary injunction seeking to enjoin CCPT III from proceeding with the shareholder votes scheduled to take place on June 19, 2013. On May 6, 2013, defendants responded by opposing the motion for a preliminary injunction and by partially moving to dismiss Plaintiff's complaint. On May 1, 2013, the plaintiff in the Carter action filed a motion to designate the Schindler action as a related action pursuant to Arizona local rules. On April 17, 2013, all parties in the Strub, Rodgers, and Fortner actions stipulated that, except for allegations pertaining to the plaintiffs, the actions are substantially similar, and jointly sought consolidation of the actions in the Circuit Court for Baltimore City. On April 30, 2013, the actions were consolidated by order of the Court and now are named In Re Cole Credit Property Trust, III, Inc. Derivative And Class Litigation. On May 8, 2013, plaintiffs filed a consolidated amended class action and derivative complaint. The consolidated complaint names as defendants the Company; CR III Advisors; Merger Sub; the Cole Holding Entities; each of the directors of CCPT III; and CCPT III as a nominal defendant. The consolidated amended complaint includes claims against the defendants including breaches of fiduciary duties; aiding and abetting breach of fiduciary duties; unjust enrichment; corporate waste; breaches of the charter and advisory agreement; and, breach of the duty of candor. The plaintiffs seek, among other relief, class certification; an injunction against defendants from taking any action to make additional Merger consideration payments that are contingent upon CCPT III's listing; an injunction against defendants from entering into any contractual agreements or acquisitions that would inhibit defendants' ability to maximize shareholder value, an injunction against the June 19, 2013 shareholder vote until the defendants have made full disclosure of the Merger and related matters pertinent to the charter amendment; compensatory damages, together with pre- and post-judgment interests; restitution from the directors; and plaintiffs' costs, expenses, and disbursements. The Company believes that these lawsuits are without merit and will present a vigorous defense, but the ultimate outcome of these matters cannot be predicted. While losses and legal expenses may be incurred, at this time no provisions for losses have been recorded in the accompanying consolidated financial statements. Cole Credit Property Trust III, Inc., is a Maryland corporation headquartered in Phoenix, Arizona, that was formed on January 22, 2008. The Company has elected to be taxed, and currently qualifies, as a real estate investment trust for federal income tax purposes. Substantially all of the Company's business is conducted through Cole REIT III Operating Partnership, LP, a Delaware limited partnership. Cole REIT Advisors III, LLC, the advisor to the Company, is an indirect wholly owned subsidiary of Cole Holdings Corporation, and is the sole limited partner and owner of an insignificant noncontrolling partnership interest of CCPT III OP. CONDE NAST: Interns File Class Action Over Labor Law Violation -------------------------------------------------------------- Dan McCue at Courthouse News Service reports that Conde Nast publications paid interns "a dollar an hour, if that," in violation of labor law, two former interns claim in a federal class action. Lauren Ballinger and Matthew Leib sued Advance Magazine Publishers dba Conde Nast Publications, for a class of interns who were paid poorly, if at all. Ballinger claims she worked at W Magazine, in its accessories and jewelry departments, packing and unpacking stuff, "running errands, filling out insurance forms, and doing other productive work." The complaint continues: "Leib worked for Conde Nast at The New Yorker, reviewing submissions and passing on those that he recommended to his supervisors, responding to readers' emails, proofreading, line editing, and relaying pieces between writers, cartoonists, and editors. Conde Nast paid Ballinger and Leib less than the minimum wage for the hours they worked, usually about a dollar an hour, if that. Both workers say that Conde Nast "relies on a steady stream of interns to perform entry-level work that contributes to its magazines' operations and reduce its labor costs." However, they say: "The Fair Labor Standards Act ('FLSA') does not contain an exception for interns. In 1947, in Walling v. Portland Terminal Co., the U.S. Supreme Court carved out a narrow exception from the FLSA's broad definition of 'employee' for participants in an employer's brief 7-to-8 day training program whose work provided no 'immediate advantage' to the employer. The Supreme Court cautioned against using the decision to allow employers to do what Conde Nast and many other employers have done in recent years" 'accept[] the services of beginners to pay less than the legal minimum[.]'" (Brackets as in complaint. Footnote omitted.) Citing a U.S. Labor Department fact sheet on internships, Ballinger and Leib say: "interns who work for private employers are presumed to be covered by the FLSA. Interns who 'are engaged in the operations of the employer or are performing productive work' must be paid the minimum wage even if they 'receiv[e] some benefits in the form of a new skill or improved work habits' because the employer 'benefits from the interns' work.'" Ballinger says she interned at W Magazine from June to October 2009. Leib claims he had two internships at The New Yorker, one from June to late August 2009, then again from June to early September 2010. They seek declaratory judgment and an injunction, unpaid minimum wages, liquidated damages and damages for violations of the Fair Labor Standards Act and New York Labor Law. They are represented by Adam Klein, Esq. -- atk@outtengolden.com -- at with Outten & Golden. CONSOL ENERGY: "Hale" v. CNX in Discovery; No Certification Yet --------------------------------------------------------------- Discovery is proceeding in a suit against CNX Gas Company, a wholly owned subsidiary of CONSOL Energy Inc., after a judge presiding over the case heard oral arguments on plaintiff's motion for class certification, CONSOL disclosed on its May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. A purported class action lawsuit was filed on September 23, 2010 in the U.S. District Court in Abingdon, Virginia styled Hale v. CNX Gas Company, et. al. The lawsuit alleges that the plaintiff class consists of forced-pooled unleased gas owners whose gas ownership is in conflict, the Virginia Supreme Court and General Assembly have decided that coalbed methane (CBM) belongs to the owner of the gas estate, the Virginia Gas and Oil Act of 1990 unconstitutionally provides only a 1/8 net proceeds royalty to CBM owners for gas produced under the forced-pooled orders, and CNX Gas Company relied upon control of only the coal estate in force pooling the CBM notwithstanding decisions by the Virginia Supreme Court. The lawsuit seeks a judicial declaration of ownership of the CBM and that the entire net proceeds of CBM production (that is, the 1/8 royalty and the 7/8 of net revenues since production began) be distributed to the class members. The lawsuit also alleges CNX Gas Company failed to either pay royalties due conflicting claimant, deemed lessors or paid them less than required because of the alleged practice of improper below market sales and/or taking alleged improper post-production deductions. The Magistrate Judge issued a Report and Recommendation in which she recommended that the District Judge decide that the deemed lease provision of the Gas and Oil Act is constitutional as is the 1/8 royalty. The Magistrate Judge recommended against the dismissal of certain other claims. The District Judge affirmed the Magistrate Judge's recommendations in their entirety. An amended complaint was filed, which added additional allegations that include gas hedging receipts should have been used as the basis for royalty payments, severance tax should not be allowed as a post-production deduction from royalties, and damages incurred because gas was produced prior to the entry of pooling orders. A motion to dismiss the Amended Complaint was filed and denied. The Magistrate Judge heard oral arguments on plaintiff's Motion for Class Certification on November 30, 2012 and has not yet issued a Report and Recommendation. Discovery is proceeding in this litigation. CONSOL ENERGY: Court Allows "Addison" v. CNX; Discovery Ongoing --------------------------------------------------------------- Discovery is proceeding in a suit over royalty payments filed by gas lessors against CNX Gas Company, a wholly owned subsidiary of Consol Energy Inc., after a motion by the defendant to dismiss the suit was denied, CONSOL Energy disclosed on its May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. A purported class action lawsuit was filed on April 28, 2010 in the United States District Court in Abingdon, Virginia styled Addison v. CNX Gas Company, et al. The lawsuit alleges that the plaintiff class consists of gas lessors whose gas ownership is in conflict. The lawsuit alleges that the Virginia Supreme Court and General Assembly have decided that the plaintiff owns the gas and is entitled to royalties held in escrow by the Commonwealth of Virginia or CNX. The lawsuit also alleges CNX Gas failed to either pay royalties due these conflicting claimant lessors or paid them less than required because of the alleged practice of improper below market sales and/or taking alleged improper post- production deductions. Plaintiff seeks a declaratory judgment regarding ownership, an accounting and compensatory and punitive damages for breach of contract; conversion; negligence (voluntary undertaking) for improperly asserting that conflicting ownership exists, negligence (breach of duties as an operator); breach of fiduciary duties; and unjust enrichment. The Magistrate Judge issued a Report and Recommendation recommending dismissing some claims and allowing others to proceed. The District Judge affirmed the Magistrate Judge's recommendations in their entirety. An Amended Complaint was filed which added an additional allegation that gas hedging receipts should have been used as the basis for royalty payments. A motion to dismiss those claims was filed and was denied. The Magistrate Judge heard oral arguments on plaintiff's Motion for Class Certification on November 30, 2012 and has not yet issued a Report and Recommendation. Discovery is proceeding in this litigation. CONSOL ENERGY: CNX Settles Shareholder Suit for $42.73 Million -------------------------------------------------------------- An agreement in principle was reached for the resolution of the class actions brought by shareholders of CNX Gas Company challenging the tender offer by CONSOL Energy Inc. to acquire all the shares of CNX Gas common stock that CONSOL Energy did not already own, according to CONSOL's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. CONSOL Energy was named as a defendant in four putative class actions brought by alleged shareholders of CNX Gas challenging the tender offer by CONSOL Energy to acquire all of the shares of CNX Gas common stock that CONSOL Energy did not already own for $38.25 per share. The two cases filed in Pennsylvania Common Pleas Court have been stayed and the two cases filed in the Delaware Chancery Court have been consolidated under the caption In Re CNX Gas Shareholders Litigation (C.A. No. 5377-VCL). (A third case filed in Delaware was voluntarily dismissed by the plaintiff in 2010.) All four actions generally allege that CONSOL Energy breached and/or aided and abetted in the breach of fiduciary duties purportedly owed to CNX Gas public shareholders, essentially alleging that the $38.25 per share price that CONSOL Energy paid to CNX Gas shareholders in the tender offer and subsequent short- form merger was unfair. Among other things, the actions sought a permanent injunction against or rescission of the tender offer, damages, and attorneys' fees and expenses. Following a mediation, the parties to the Delaware litigation have agreed in principle to a settlement and release of all of the claims of the plaintiff class (as defined in a January 20, 2011 order of certification) in exchange for defendants' agreement to establish a settlement fund in the amount of $42.73 million for distribution to class members, of which CONSOL Energy is responsible for $20.20 million. This settlement agreement is subject to the execution of definitive documentation and to judicial approval. CONSOL ENERGY: Still Faces "Hall" Gas Lessors' Lawsuit ------------------------------------------------------ CONSOL Gas Company continues to face a lawsuit over royalty payments filed by a purported class of all Pennsylvania oil and gas lessors to Dominion Exploration and Production Company, according to CONSOL Energy's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. A purported class action lawsuit was filed on December 23, 2010 styled Hall v. CONSOL Gas Company in Allegheny County Pennsylvania Common Pleas Court. The named plaintiff is Earl D. Hall. The purported class plaintiffs are all Pennsylvania oil and gas lessors to Dominion Exploration and Production Company, whose leases were acquired by CONSOL Energy. The complaint alleges more than 1,000 similarly situated lessors. The lawsuit alleges that CONSOL Energy incorrectly calculated royalties by (i) calculating line loss on the basis of allocated volumes rather than on a well-by-well basis, (ii) possibly calculating the royalty on the basis of an incorrect price, (iii) possibly taking unreasonable deductions for post-production costs and costs that were not arms-length, (iv) not paying royalties on gas lost or used before the point of sale, and (v) not paying royalties on oil production. The complaint also alleges that royalty statements were false and misleading. The complaint seeks damages, interest and an accounting on a well- by-well basis. CONSOL ENERGY: "Comer" Plaintiffs File New, Nearly Identical Suit ----------------------------------------------------------------- An appeal was lodged against the dismissal of a suit making nearly identical allegations to another dismissed suit Comer, et al. v. Murphy Oil, et al. filed against a number of companies in energy, fossil fuels and chemical industries, according to CONSOL Energy Inc.'s May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. In 2005, plaintiffs Ned Comer and others filed a purported class action lawsuit in the U.S. District Court for the Southern District of Mississippi against a number of companies in energy, fossil fuels and chemical industries, including CONSOL Energy styled, Comer, et al. v. Murphy Oil, et al. The plaintiffs, residents and owners of property along the Mississippi Gulf coast, alleged that the defendants caused the emission of greenhouse gases that contributed to global warming, which in turn caused a rise in sea levels and added to the ferocity of Hurricane Katrina, which combined to destroy the plaintiffs' property. The District Court dismissed the case and the plaintiffs appealed. The Circuit Court panel reversed and the defendants sought a rehearing before the entire court. A rehearing before the entire court was granted, which had the effect of vacating the panel's reversal, but before the case could be heard on the merits, a number of judges recused themselves and there was no longer a quorum. As a result, the District Court's dismissal was effectively reinstated. The plaintiffs asked the U.S. Supreme Court to require the Circuit Court to address the merits of their appeal. On January 11, 2011, the Supreme Court denied that request. Although that should have resulted in the dismissal being final, the plaintiffs filed a lawsuit on May 27, 2011, in the same jurisdiction against essentially the same defendants making nearly identical allegations as in the original lawsuit. The trial court has dismissed this case. The dismissal is being appealed. COOPER TIRE: Faces Suit Over Proposed Acquisition by Apollo Tyres ----------------------------------------------------------------- Booth Family Trust, On Behalf of Itself and All Others Similarly Situated v. Cooper Tire & Rubber Company, Roy V. Armes, Thomas P. Capo, Steven M. Chapman, John J. Holland, John F. Meier, Cynthia A. Niekamp, John H. Shuey, Richard L. Wambold, and Robert D. Welding, Case No. 8668- (Del. Ch. Ct., June 20, 2013), is a stockholder class action brought by The Booth Family Trust on behalf of the public stockholders of the Company against the Company and its Board of Directors in connection with the proposed acquisition of Cooper by Apollo Tyres Ltd. through its wholly owned subsidiaries. The Plaintiff seeks to enjoin the Defendants from pursuing the Proposed Transaction, or in the event that the Proposed Transaction is consummated, recover damages resulting from the Defendants' alleged wrongful conduct. In pursuing the Proposed Transaction, the Plaintiff contends, each Defendant has violated applicable laws by directly breaching fiduciary duties of loyalty, good faith, independence, fair dealing, and due care owed to the Plaintiff and the proposed class. The Plaintiff adds that the merger consideration agreed to by the Board is grossly unfair. As widely reported, Gurgaon, India-based Apollo has agreed to acquire Cooper Tire for about $2.5 billion. Apollo Tyres will pay $35 a share to Cooper Tire's shareholders. The amount is 43% higher than the June 11 closing price of $24.56 of Cooper Tire's shares, according to a Bloomberg News report. The Plaintiff owns Cooper common stock. Cooper is a Delaware corporation with its principal executive offices located in Findlay, Ohio. Cooper is the parent company of a global family of companies that specialize in the design, manufacture, marketing and sales of passenger car and light truck tires. Cooper has joint ventures, affiliates and subsidiaries that also specialize in medium truck, motorcycle and racing tires. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Ryan M. Ernst, Esq. O'KELLY ERNST & BIELLI, LLC 901 North Market Street, Suite 1000 Wilmington, DE 19801 Telephone: (302) 778-4000 Facsimile: (302) 295-2873 E-mail: rernst@oeblegal.com - and - Joseph H. Weiss, Esq. Richard A. Acocelli, Esq. Michael A. Rogovin, Esq. WEISSLAW LLP 1500 Broadway, 16th Floor New York, NY 10036 Telephone: (212) 682-3025 Facsimile: (212) 682-3010 E-mail: jweiss@weisslawllp.com racocelli@weisslawllp.com mrogovin@weisslawllp.com DEWAAY FINANCIAL: Judge Approves $3MM Class Action Settlement ------------------------------------------------------------- Kent Darr, writing for Business Record, reports that Decatur County Judge John Lloyd on June 4 filed the final order approving a $3 million class-action settlement of claims against broker- dealer Donald DeWaay and his affiliated investment companies. Judge Lloyd consolidated two cases that were filed in January 2012 by DeWaay clients who were sold private placement investments, primarily in entities related to a now-bankrupt Idaho-based real estate investment company and a Texas company that sold shares in oil and gas leases. The settlement could affect nearly 5,000 DeWaay clients who put their money into 199 separate investments, all but one of which that has lost value or is worthless. Those clients are prohibited under the settlement from taking additional action to collect their money. It has been estimated that DeWaay and his DeWaay Financial Network LLC brokerage faced at least $20 million in claims related to investments it sold in the Idaho company. Judge Lloyd approved a settlement that includes $925,000 in DeWaay's personal funds. That figure could be increased by net proceeds from the sale of the Clive businessman's Lake Okoboji vacation home, vacation lodges, a strip center and farmland. Plaintiffs' lawyers will receive $750,000 from the settlement. The settlement is the most the investors can expect to receive from DeWaay, Judge Lloyd said, whose broker-dealer business is shuttered. His lawyers have claimed that attempting to settle with each investor would bankrupt DeWaay, who also has seen the majority of his $20 million financial counseling campus return to lenders. Judge Lloyd said 26 individuals or entities such as trusts that are related to them are excluded from the case because they had previously settled their claims. Named plaintiffs will receive an additional $2,500 each. Settlement funds will be based on a prorated share of each client's initial investment. Judge Lloyd will continue to oversee the case and hear any disputes that arise from its administration. E*TRADE FINANCIAL: $79MM Accord in Securities Suit Deemed Final --------------------------------------------------------------- A $79.0 million settlement of a consolidated securities suit filed against E*Trade Financial Corporation is deemed final as all appeals and requests for attorneys' fees have been resolved as of January, 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 2, 2007, a class action complaint alleging violations of the federal securities laws was filed in the United States District Court for the Southern District of New York against the Company and its then Chief Executive Officer and Chief Financial Officer by Larry Freudenberg on his own behalf and on behalf of others similarly situated (the "Freudenberg Action"). On July 17, 2008, the trial court consolidated this action with four other purported class actions. Plaintiffs contended, among other things, that the value of the Company's stock between April 19, 2006 and November 9, 2007 was artificially inflated because the defendants issued materially false and misleading statements and failed to disclose that the Company was experiencing a rise in delinquency rates in its mortgage and home equity portfolios; failed to timely record an impairment on its mortgage and home equity portfolios; materially overvalued its securities portfolio, which included assets backed by mortgages; and based on the foregoing, lacked a reasonable basis for the positive statements made about the Company's earnings and prospects. The parties entered into a Stipulation of Settlement on May 17, 2012, which was submitted to the Court for approval. The settlement was approved by the Court and the class was certified by a final judgment and order of dismissal dated October 22, 2012. Under the terms of the settlement, the Company and its insurance carriers paid $79.0 million in return for full releases. Approximately $11.0 million of the total settlement figure was paid by the Company, which was expensed in the year ended December 31, 2011. As of January 14, 2013, all appeals and requests for attorneys' fees have been resolved and the settlement is final. EQT PRODUCTION: Court Recommends Class Status in Landowners' Suit ----------------------------------------------------------------- Steve Szkotak, writing for The Associated Press, reports that a federal magistrate judge recommended class-action status on June 5 for thousands of landowners in southwest Virginia who contend two energy companies cheated them out of tens of millions of dollars in royalty payments for natural gas they extracted from their properties. U.S. Magistrate Judge Pamela Meade Sargent's recommendation now goes to a district judge in Abingdon for the final judgment on the proposed class action. Judge Sargent certified the class action claims of four of five landowners. They are among 10,000 or more landowners in a potential class action against EQT Production Co. and CNX Gas Co., Pittsburgh-area energy companies that have thousands of natural gas wells in Appalachia. The companies have denied the allegations in the past. CNX did not respond to The Associated Press, but EQT said in a statement: "We have reviewed the magistrate's recommendation and while we are pleased with some parts of the recommendation" others we take exception to. They have two weeks to appeal. One of the attorneys for the landowners called the opinion a "blowout win." "It is a catastrophic defeat for these two major energy companies, which have been cheating these landowners and small royalty owners for decades, with impunity," Don Barrett said. He added that a district judge is all but assured of heeding Judge Sargent's opinion, as he has done in other stages of the action. Attorneys for the landowners allege EQT and CNX drilled thousands of wells in southwest Virginia's coal bed to remove methane gas without obtaining valid leases. They argued the mineral rights were held by the coal companies. The Virginia Gas and Oil Board ultimately granted conditional leases and placed royalties in an escrow account because of conflicting claims. The royalties placed in the account amounted to one-eighth of net proceeds of the drilling. Attorneys for the landowners said the state panel subjected the landowners to "an involuntary lease" and established a below- market royalty rate. The Virginia Supreme Court, in a 2004 ruling, found that the methane gas is a "distinct mineral estate" from coal, concluding the landowners owned the rights to natural gas removed from their properties. In her opinion, Judge Sargent wrote, "Quite frankly, I am of the opinion that the Virginia Supreme Court has decided this issue." Mr. Barrett estimated that the royalties held in escrow are approaching $30 million, but the wells are expected to remain in operation for years. Attorneys are also seeking punitive damages. "This has been misconduct -- flagrant misconduct -- and bullying of these little people for decades," he said. "Now they have to pay." The Bristol Herald Courier won a Pulitzer Prize for Daniel Gilbert's reporting on the mismanagement of natural gas royalties owed to landowners in Virginia. EXIDE TECHNOLOGIES: Federman & Sherwood Files Class Action ---------------------------------------------------------- On June 4, 2013, Federman & Sherwood filed a class action lawsuit in the United States District Court for the Central District of California against Exide Technologies, with a greatly expanded class period, seeking to pursue remedies under -- 10(b) and 20(a) of the Securities Exchange Act of 1934, and Rule 10b-5 promulgated thereunder. Plaintiffs in this action seek to recover damages on behalf of all Exide Technologies shareholders who purchased common stock during the Class Period as set forth below. If you purchased Exide Technologies shares between June 1, 2011 and April 24, 2013, have losses as a result of your trades during this time period, and wish to join this litigation as a member of the class, please contact Federman & Sherwood. Investors have until Friday, June 14, 2013 to move the court for consideration as a court-appointed lead plaintiff, but in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. Our firm seeks to recover damages and losses on behalf of the entire Class, and has extensive nationwide experience and expertise in prosecuting securities litigation involving financial fraud. If you wish to join this class action, please contact: K. Lynn Nunn at kln@federmanlaw.com or visit our website at http://www.federmanlaw.comto download a Plaintiff's Certification of Investment to join this class action lawsuit. Contact: Federman & Sherwood 10205 North Pennsylvania Avenue Oklahoma City, OK 73120 Telephone: (405) 235-1560 Fax: (405) 239-2112 FAT COW: Faces Overtime Class Action ------------------------------------ Courthouse News Service reports that Gordon Ramsay Los Angeles LP's restaurant The Fat Cow stiffs workers for overtime, according to a class action in Superior Court. FIRSTENERGY SOLUTIONS: Unit Still Faces Environmental Lawsuit ------------------------------------------------------------- FirstEnergy Generation, LLC (FG), a subsidiary of Firstenergy Solutions Corp., continues to face a lawsuit seeking damages based on air emissions from the coal-fired Bruce Mansfield Plant, 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 2008, three complaints representing multiple plaintiffs were filed against FG in the U.S. District Court for the Western District of Pennsylvania seeking damages based on air emissions from the coal-fired Bruce Mansfield Plant. Two of these complaints also seek to enjoin the Bruce Mansfield Plant from operating except in a "safe, responsible, prudent and proper manner." One complaint was filed on behalf of twenty-one individuals and the other is a class action complaint seeking certification as a class with the eight named plaintiffs as the class representatives. GREEN JACOBSON: Faces Class Action Over Breaching Duty ------------------------------------------------------ Joe Harris at Courthouse News Service reports that a class action plaintiff turned the tables on a law firm, claiming in another class action that the firm breached its duty to him in a $490 settlement from which the attorneys got $60 million in fees. David Oetting sued Green Jacobson PC and its attorneys Martin Green, Joe Jacobson and Jonathan Andres, in Federal Court. Oetting claims the defendants sought to maximize their cut and minimize their work while representing him in a securities class action against BankAmerica Corporation in 1998. The case was consolidated in a class action along with NationsBank, and settled in 2002. Oetting claims the defendants hired the nonparty CPA firm of Heffler, Radetich & Saitta without seeking competitive bids, without inquiring about the amount of professional and fidelity insurance coverage Heffler carried, and without considering Heffler's financial strength. "After giving the proper notice to the class and conducting a fairness hearing as to the proposed settlement, on September 30, 2002, the court issued an order approving the terms of the settlement and revised the plan of allocation for the plaintiff classes against BankAmerica Corporation," the complaint states. "The total settlement fund was $490 million ($333.2 million to the NationsBank class and $156.8 million to the BankAmerica class). These sums were deposited into separate accounts. Despite notice and inquiry by Plaintiff Oetting, Green Jacobson continues to cause excessive bank fees to be charged against the NationsBank settlement fund account." (Parentheses in complaint.) Oetting claims Heffler failed to process class settlement claim properly. "In 2008, it was discovered through a criminal investigation conducted by the U.S. Attorney's office in Philadelphia that one of Heffler's employees, Christian Penta ('Penta'), while serving as a senior accountant in 2002-04, working with others outside Heffler, fraudulently submitted some 15 claims totaling approximately $5.8 million," the complaint states. "Green Jacobson should have detected the fraudulent claims, including because (a) they were for large amounts, (b) the claimants were not their clients, (c) the claimants were foreign entities with unusual names and (d) the claimants had no federal identification numbers. For example, 'Companhia Interamerican' submitted a claim saying that it was the holder of 3,870,000 shares of NationsBank stock. Without any investigation as to what this entity was it was sent a check for $1,904,171.64. Another claim submitted was by 'FBO Asia Reserve', a 'foreign entity'. It claimed to own 2,919,160 shares. It received a check for $1,436,326.02. Neither of these entities existed; however, Green Jacobson did not detect any of these fraudulent claims -- or any other fraudulent claims -- and instead allowed the $5.8 million to be diverted from the NationsBank settlement fund. It appears that Green Jacobson performed no substantive review of the list submitted to the Court. "Although Green Jacobson (and Heffler) did little or nothing to detect or prevent the fraudulent scheme, the U.S. Attorney later notified Green Jacobson that these monies had been stolen from the NationsBank settlement fund. The U.S. Attorney's office has since been able to recover only a small amount of the $5.8 million. Green Jacobson has made no real effort on its own to recover and has recovered no portion of the $5.8 million stolen from its clients." (Parentheses in complaint.) Oetting claims the defendants breached their duty to him by failing to try to recover the $5.8 million from Heffler. "Green Jacobson ultimately filed a motion for leave to file a 'Supplemental Complaint' [Doc 749] against Heffler in the Action making the allegations that the class was due to be reimbursed by Heffler due to Penta's actions," the complaint states. "The court denied the motion on the grounds that the action against Heffler was a separate claim that had to be filed in a completely new lawsuit. Upon denial of Green Jacobson's motion, Green Jacobson seemed satisfied to take no further action against Heffler. Green Jacobson also attempted to frustrate Oetting's efforts to do something further to recover the $5.8 million taken from the NationsBank class, Green Jacobson's clients, including Green Jacobson refused to file a separate action with Oetting as the lead plaintiff and proceeded to negotiate a settlement with Heffler without the knowledge or consent of Oetting or the class. "Plaintiff Oetting, having been frustrated at every turn as to the inactions of Green Jacobson, filed his own complaint in St. Louis seeking damages against Heffler for improperly authorizing and paying on false claims in the Action. The case was transferred to Philadelphia on venue grounds. It is now pending in the Eastern District of Pennsylvania (Case No. 2:11-cv-04757-JD) ('Heffler Case')." Oetting claims Green Jacobson failed to monitor Heffler and breached their duty to class members by hiring Heffler in the first place. He claims the defendants also failed to keep Oetting informed, failed to take appropriate steps to try to recover the stolen money, negotiated a settlement without the informed consent of their clients and took action hostile to the interests of their clients. The class consists of all members of the NationsBank class who have or who are to receive a payout from the 2002 settlement. Oetting seeks damages for legal malpractice, negligent hiring, negligence and breach of fiduciary duty. He also seeks disgorgement of $60 million Green Jacobson was awarded in attorney's fees. He is represented by Frank H. Tomlinson in Birmingham, Ala. HAWAII: Disability Rights Center Launches 9th Cir. Appeal --------------------------------------------------------- Matt Reynolds at Courthouse News Service reports that the Hawaii Disability Rights Center went to the 9th Circuit two weeks ago to challenge a state law preventing disabled students from receiving special education services after turning 20. Two related cases challenged Hawaii's Act 163, which bars any student from attending public school if they are 20 or older on the first day of the school year. R.T.D. sued the Hawaii Department of Education in 2010, claiming that the law denied him the free appropriate public education he used to receive up to age 22. He later joined a class action filed the same year that made similar claims. Non-disabled students can continue their education in General Education Development and competency-based diploma programs. But no such option was available to disabled students who require special education services. R.T.D. asked the court to overturn rulings by administrative hearing officers who refused to extend special education services to plaintiffs at their public schools until they were 22. U.S. District Judge David Alan Erza rejected the class claims in March 2012, under the Individuals with Disabilities Education Act (IDEA). Erza found that the class failed to show that Hawaii has "a state law or practice whereby non-disabled students between the ages of 20 and 22 are being provided the functional equivalent of a secondary school education" in adult community schools. Erza also sided with Hawaii on the plaintiffs' claims under the Americans with Disabilities Act and the Rehabilitation Act. "Plaintiffs have not met their burden of producing evidence that there exists a reasonable accommodation that will allow plaintiffs to derive a meaningful benefit from adult education programs," Erza wrote. A month later, U.S. District Judge Leslie Kobayashi relied on Erza's order to dismiss R.T.D.'s complaint against the Hawaii Department of Education. Two weeks ago, attorney Jason Kim, Esq. -- jkim@schneiderwallace.com -- with the San Francisco law firm Schneider Wallace Cottrell Brayton Konecky, asked a three-judge panel of the 9th Circuit to overturn Erza's ruling. Kim said Hawaii was offering what amounted to secondary public education for non-disabled students in community schools for adults. Continuing education programs should be made available to disabled students until they turn 22, the attorney said. "The fact that they have chosen to offer secondary education through something that is innovative and different shouldn't affect their obligations under the IDEA because state law requires them to provide secondary education, elementary education, to adults," Kim said. Judge Joseph Farris wondered if discrimination was the issue, if disabled students were not "precluded from entering" community schools. "He is precluded not by anybody, but by whatever causes him to have whatever problems he's got from taking advantage of the program," Farris said of R.T.D. "But it's there, and otherwise he could do it, couldn't he? There's no barrier to his entering the second program, except his inability to take advantage of it." Kim called that argument incompatible with the IDEA's mandate to "affirmatively provide services to ensure meaningful opportunity." "It would be contrary to the IDEA if the result of this case is someone who is heavily disabled can go into one of those classrooms with no supportive services, and just sit there all day. That kind of conduct is exactly what the IDEA was enacted to prevent," Kim said. What the case boils down to, Kim said, is that Act 163 is "an outright exclusion and a segregation." "If you're a 21-year-old student in Hawaii who wishes to continue their public education but requires support services to do so, as a practical matter you can't," Kim said. Deputy Attorney General Carter Siu said the court should affirm. He said the IDEA applied to secondary public education for children, not to adult classes in community schools. Judges Dorothy Nelson and Jacqueline Nguyen questioned Siu's reasoning. Nguyen asked: "Why doesn't that violate the IDEA, in that Hawaii has chosen to make available to non-disabled students this option of pursuing alternative programs through the community schools for adults, but for disabled children there's no similar provision; no ability to put an IEP [individualized education program] in place, or extend IEP type services?" Siu said the state made clear that individualized education programs for community schools are not "appropriate," and that programs in those schools were for adults only. Judge Nelson asked: "Isn't it true that in 2010 and 2011, four 20- year-old students transitioned straight from high school to the adult education degree programs? Isn't this proof that for at least some, although a few students, the adult schools are really a form of continuing education?" Siu responded that there is "no transition" between high school and community school, and that it was an individual student's "choice." "It's up to you to decide what your course in life is," Siu said. He said only 4 percent of non-disabled high school students entered General Education Development programs at community schools. "The IDEA applies to school-age children, within traditional secondary schools," Siu said. "They're for adults; they're totally separate programs, funded separately." During rebuttal, Kim claimed that programs offered at community schools are public education under the IDEA. "There's no way that the term 'public education' as used in the IDEA is limited to a conventional high school education, because the IDEA wouldn't make any sense," Kim said. He urged the court to examine the IDEA on procedural, rather than substantive grounds. In another 9th Circuit hearing before the panel, Deputy Attorney General Gary Suganuma challenged an October 2012 order granting a disabled student's request to stay at the school where he is receiving special education services. John Dellera of Honolulu argued on behalf of his client, A.D. HIGHER ONE: Awaits Ruling on Motion to Dismiss Consumer MDL ----------------------------------------------------------- Higher One Holdings, Inc., is awaiting a court decision on its motion to dismiss a multidistrict litigation alleging violations of state consumer protection statutes, 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. The Company is a defendant in a series of putative class action lawsuits. The cases are as follows: Ashley Parker, et al. v. Higher One Holdings, Inc. et al., filed on July 3, 2012, in the United States District Court for the Northern District of Mississippi, Eastern Division; Jeanette Price et al. v. Higher One Holdings, Inc. et al., filed on July 27, 2012, in the United States District Court for the District of Connecticut; John Brandon Kent et al. v. Higher One Holdings, Inc. et al., filed on August 17, 2012, in the United States District Court for the Middle District of Alabama, Northern Division; Jonathan Lanham et al. v. Higher One Holdings, Inc. et al., filed on October 2, 2012, in the United States District Court for the Western District of Kentucky, Louisville Division; Aisha DeClue et al. v. Higher One, Inc., et al., filed on November 5, 2012, in the St. Louis County Circuit Court of Missouri; and Jill Massey et al. v. Higher One Holdings, Inc. et al., filed on November 6, 2012, in the United States District Court for the Southern District of Illinois, East Saint Louis Division. The Company filed a motion with the Judicial Panel on Multidistrict Litigation, or JPML, asking the Panel to transfer to a single court the first three cases (and any additional tag-along cases) for coordinated or consolidated pretrial proceedings. On December 11, 2012, and December 21, 2012, the JPML ruled in the Company's favor and the Parker, Kent, Price, Lanham, and Massey actions were transferred to the District of Connecticut. This consolidated case is captioned In re Higher One OneAccount Marketing and Sales Practices Litigation, or the MDL. The Plaintiffs have since filed a consolidated amended complaint in the MDL. It generally alleges, among other things, violations of state consumer protection statutes (predicated, in part, on alleged violations of Department of Education rules and violations of the federal Electronic Funds Transfer Act) and various common law claims. On April 22, 2013, the Company filed a motion to dismiss the case. Discovery has commenced in the MDL. On December 21, 2012, Higher One removed the DeClue case to the United States District Court for the Eastern District of Missouri. On December 27, 2012, the JPML issued a conditional transfer order with respect to the DeClue action, which the DeClue plaintiffs have opposed. The JPML overruled that opposition and the DeClue case has been transferred to the District of Connecticut to proceed as part of the MDL. In DeClue, the plaintiff has filed a motion to remand the case to state court, but the court has stayed any briefing on this motion until the MDL Court lifts the stay and enters a scheduling order. The Company believes the claims in each of these actions to be without merit. Although the Company plans to defend these matters vigorously, there can be no assurances of the Company's success in these matters. Higher One Holdings, Inc. -- http://ir.higherone.com/-- is a Delaware corporation headquartered in New Haven, Connecticut. The Company is a provider of technology-based refund disbursement, payment processing and data analytics services to higher education institutions and students. The Company also provides campus communities with convenient and student-oriented banking services, which include extensive user-friendly features, through the Company's bank partners. IMMERSION CORPORATION: Stockholders Appeal Dismissal of Suit ------------------------------------------------------------ Plaintiffs in the suit In Re Immersion Corporation Securities Litigation are appealing the dismissal of the case to the United States District Court for the Northern District of California, 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 September and October 2009, various putative shareholder class action and derivative complaints were filed in federal and state court against the Company and certain current and former Immersion directors and officers. On September 2, 2009, a securities class action complaint was filed in the United States District Court for the Northern District of California against the Company and certain of its current and former directors and officers. Over the following five weeks, four additional class action complaints were filed. (One of these four actions was later voluntarily dismissed.) The securities class action complaints name the Company and certain current and former Immersion directors and officers as defendants and allege violations of federal securities laws based on the Company's issuance of allegedly misleading financial statements. The various complaints assert claims covering the period from May 2007 through July 2009 and seek compensatory damages allegedly sustained by the purported class members. On December 21, 2009, these class actions were consolidated by the court as IN Re Immersion Corporation Securities Litigation. On the same day, the court appointed a lead plaintiff and lead plaintiff's counsel. Following the Company's restatement of its financial statements, lead plaintiff filed a consolidated complaint on April 9, 2010. Defendants moved to dismiss the action on June 15, 2010 and that motion was granted with leave to amend on March 11, 2011. Lead plaintiff filed an amended complaint on April 29, 2011. Defendants moved to dismiss the amended complaint on July 1, 2011. On December 16, 2011, the motion to dismiss was granted with prejudice and on December 19, 2011, judgment was entered in favor of defendants. On January 13, 2012, the plaintiffs filed a notice of appeal to the Ninth Circuit Court of Appeals. In May 2012, plaintiff filed his opening appeals brief. On July 13, 2012, the Company filed its response brief. On September 4, 2012, plaintiff filed his reply. INTRALINKS HOLDINGS: Bid to Dismiss Securities Suit Denied in May ----------------------------------------------------------------- Intralinks Holdings, Inc.'s motion to dismiss a consolidated securities class action lawsuit was denied in May 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 5, 2011, the Company became aware of a purported class action lawsuit filed in the U.S. District Court for the Southern District of New York (the "SDNY" or the "Court") against the Company and certain of its current and former executive officers. The complaint (the "Wallace Complaint") alleges that the defendants made false and misleading statements or omissions in violation of the Securities Exchange Act of 1934, as amended. The plaintiff seeks unspecified compensatory damages for the purported class of purchasers of the Company's common stock during the period from February 17, 2011, through November 10, 2011 (the "Allegation Period"). On December 27, 2011, a second purported class action complaint, which makes substantially the same claims as, and is related to, the Wallace Complaint, was filed in the SDNY against the Company and certain of its current and former executive officers seeking similar unspecified compensatory damages for the Allegation Period. On April 3, 2012, the Court consolidated the actions and appointed Plumbers and Pipefitters National Pension Fund as lead plaintiff, and also appointed lead counsel in the consolidated action ("Consolidated Exchange Act Class Action"). On June 15, 2012, the lead plaintiff filed an amended complaint, that in addition to the original allegations made in the Wallace Complaint, alleges that the Company, certain of its current and former officers and directors, and the underwriters in the Company's April 6, 2011 stock offering issued a registration statement and prospectus in connection with the offering that contained untrue statements of material fact or omitted material information required to be stated therein in violation of the Securities Act of 1933, as amended. The defendants filed their motion to dismiss the action on July 31, 2012, and, in response to the lead plaintiff opposition to the defendants' motions filed on September 17, 2012, the defendants filed their replies to plaintiff's opposition on October 10, 2012. On May 8, 2013, the Court issued an opinion dismissing claims based on certain allegations in the complaint, but otherwise denied defendants' motions to dismiss. The Company believes that these claims are without merit and intends to defend these lawsuits vigorously. Based in New York, IntraLinks Holdings, Inc. -- http://www.intralinks.com/-- together with its subsidiaries, provides software-as-a-service (SaaS) solutions for securely managing content, exchanging critical business information, and enabling inter-enterprise collaboration worldwide. INVENTURE FOODS: Certification Hearing in Suit v. Jamba in Oct. --------------------------------------------------------------- A hearing on the motion for class certification in a suit filed against Jamba Juice Company with which Inventure Foods, Inc. has a license agreement, is on October 17, 2013, according to Inventure's May 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 30, 2013. Inventure said, "In March 2012, we learned that the Jamba Juice Company was named as a defendant in a putative class action filed in the Federal Court for the North District of California and captioned Kevin Anderson v. Jamba Juice Company which claims that the use of the words "all natural" to describe the Smoothie Kits is misleading and deceptive to consumers and violates various California consumer protection statutes and unfair competition statutes." "The suit is one of several 'all natural' lawsuits recently brought against various food manufacturers and distributors in California. In an amended complaint the plaintiff also alleged violations of the federal Magnuson-Moss Warranty Act, but the court dismissed those claims in a ruling issued in August 2012. "In a second amended complaint filed in September 2012, we were added as a defendant. Under the company's license agreement with the Jamba Juice Company, we are obligated and have agreed to indemnify and defend Jamba Juice in the suit, and Jamba has tendered defense of the claim to us. While we currently believe the "all natural" claims on the Smoothie Kits are not misleading and in full compliance with FDA guidelines, we are investigating the claims asserted in the action, and intend to vigorously defend against them. "The plaintiff is seeking to certify a class of all persons in California who bought certain of the Jamba Juice Smoothie Kits, and the plaintiff's deadline for filing a motion for class certification is May 31, 2013. The company's opposition to the motion for class certification is due on July 30, 2013 and the court has schedule a hearing on the motion for class certification on October 17, 2013." JM SMUCKER: False Ad Plaintiff Can Recover Fees, Judge Rules ------------------------------------------------------------ Matthew Heller of BankruptcyLaw360 reported that a California federal judge ruled that the lead plaintiff in a false advertising class action against The J.M. Smucker Co. is entitled to an award of millions of dollars in attorneys' fees even though she was removed from the case after filing bankruptcy. According to the report, U.S. District Judge George H. King agreed with Mary Henderson that she had standing to claim attorneys' fees as the "successful" or "prevailing" party in the lawsuit, which alleged Smucker falsely marketed products full of hydrogenated oils as healthy. The case is Mary Henderson v. The J. M. Smucker Company, Case No. 2:10-cv-04524 (GHK)(C.D. Calif.). J. M. Smucker Co. is a multi-billion dollar North American food corporation based in Orrville, Ohio. The Defendant manufactures, markets, and sells cooking oils nationwide from its manufacturing plant in Orrville, Ohio, including Crisco Natural Blend Oil, Crisco Pure Corn Oil, Crisco Pure Canola Oil, and Crisco Pure Vegetable Oil. KMART CORP: Delbridge to Represent Class for Cashiers, Judge Rules ------------------------------------------------------------------ Jonny Bonner at Courthouse News Service reports that a Kmart cashier who worked at a store in Southern California can represent a class who were denied seats, but there will be no statewide class, a federal judge ruled. Collette Delbridge is now the class representative for cashiers at a Kmart in Redlands, Calif., according to the ruling. She had intervened after a federal judge found that Kmart did not violate the rights of a class, led by Lisa Garvey, by failing to provide seating at a location in Tulare, Calif. Garvey had noted that California's wage order, 7-2001(14), provides: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." U.S. District Judge William Alsup concluded in that December 2012 ruling, however, that modifying the store to give cashiers seats would be "too unsafe, too inefficient, and too inconvenient to customers and cashiers." Though Alsup certified Delbridge as a class representative for a new arm of the lawsuit last week, Sabrina Cline, who worked at a Kmart in Petaluma, Calif., was less successful. Cline lacks standing because she failed to list and disclose her claim against Kmart in a 2012 bankruptcy proceeding, according to the ruling. "As a result, her claim in this action belongs to the bankruptcy estate," the 14-page ruling states. As for Delbridge's representation of a Redlands class, Alsup said he would not "stretch the Tulare trial over the entirety of these proceedings." "The Tulare trial record is not representative of other stores," Alsup wrote. "It otherwise suffices to note that plaintiffs have submitted a declaration from plaintiff Delbridge stating that she believes that she could have performed her cashiering duties while seated. This creates genuine issues of material fact on the issues raised by Kmart as to cashiers who worked at the Redlands store." Delbridge meanwhile objected to 400 declarations Kmart provided from cashiers about the nature of their work. Most of the declarations are surveys pairs with disclosure forms, and another 15 are "Day in the Life" statements. Alsup seemed sympathetic to Delbridge's objections. "The disclosure forms used by Kmart were, at best, a half-hearted attempt to convert legal language into a format comprehensible to a layperson," he wrote. "The surveys appear to have been collected from the cashiers at their place of work, rather than in a neutral environment. Although the disclosure forms stated that filling them out was voluntary and no adverse action would be taken against the declarants, the context could have encouraged Kmart's employees to overstate their zeal for their work. Thus, given the manner in which the surveys were collected, the accuracy of the information is suspect. And, the 'Day in the Life' declarations are particularly problematic since they attempt to convey that Kmart cashiers work long and hard without ever wishing for a stool -- but were clearly drafted by attorneys." He refused to strike the declarations, however, after concluding that "Kmart's method of gathering and preparing the cashier declarations and surveys was not fundamentally coercive or misleading." Alsup nevertheless barred the company from further communicating with class members regarding the lawsuit and from engaging in evidence-gathering involving communications with them until after judgment. In certifying Delbridge as representative for other workers at the Kmart in Redlands, Alsup noted that Kmart had devoted "its class certification opposition to battling a potential statewide class. To the extent that its arguments can be translated to a class limited to a single store, they fall flat." Counsel had until June 20 to identify class members and submit a list of names, agreed-on form of class notice, and plan of dissemination and time table. KELLOGG CO: Faces Class Action Over Deceptive Advertising --------------------------------------------------------- Courthouse News Service reports that Kellogg Co. deceptively advertises its Super Mario Fruit Snacks and Pop Tarts as made with "real fruit," three class actions claim in Federal Court. LIQUOR CONTROL: Recalls Nalewka Babuni Cherry Wine Over Color ------------------------------------------------------------- Starting date: June 20, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Chemical Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Liquor Control Board Of Ontario Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 7933 Affected products: Brand name Common name Size Code(s) on product ---------- ----------- ---- ------------------ Nalewka Babuni Dessert Cherry 750 ml L2352, L3010, L3028 Wine UPC: 5901064000720 MAPCO EXPRESS: Faces Class Action Over Hacked Credit Card System ---------------------------------------------------------------- Courthouse News Service reports that MAPCO Express let hackers into its credit card system, exposing millions of people to fraud, theft and ID theft, a class action claims in Federal Court. NAT'L COLLEGIATE: Concussion Lawsuit Faces Fewer Obstacles ---------------------------------------------------------- Marc Edelman, writing for Forbes, reports that it has already been quite the spring for the NCAA. First, on May 21, the U.S. Court of Appeals for the Third Circuit held that the First Amendment does not definitively protect Electronic Arts's unlicensed use of college football players' likenesses in commercial video games -- potentially marking the end to one NCAA revenue stream. Then, on June 3 University of Miami defensive end Dyron Dye went to the police detailing how an NCAA investigator coerced information from him. Now, the NCAA may face a class-action lawsuit filed against it by concussed former college football players. By now, most sports fans are familiar with the class-action concussion lawsuit against the National Football League, which accuses the NFL, among things, of having negligently failed to warn players about the risks of concussions and concealed informational studies about the long-term effects of concussions. There is also a similar lawsuit making its way through the court system against the NCAA -- Arrington v. National Collegiate Athletic Association. However, many of the potentially mitigating factors that could reduce the NFL's legal exposure do not seem to avail themselves to the NCAA. First, there is the issue of "duty of care" -- the standard of legal obligation placed on a given entity to prevent negligent acts. Although the NFL may owe a duty of care to protect its athletes from head injuries, one would surmise this duty to be far greater in the context of the NCAA, which, according to its own website, was founded in 1905 "to protect young people from the dangerous and exploitive (sic) athletic practices of the time." These practices specifically included risks of head and neck injuries. In addition, the NFL defendants might be able to reduce their exposure because during at least part of the relevant period in question the NFL players union served in the direct capacity of protecting professional football players' interests. However, once again such a defense clearly does not extend itself to the NCAA. Quite to the contrary, the NCAA has not permitted its workforce to form an organized body to negotiate against it. Then, there is the temporal factor that may work against the NCAA. While the NFL may attempt to argue in its litigation that many of the players' head injuries occurred before they entered the NFL, the NCAA cannot so easily try to place blame on earlier injuries. Currently, most of the legal discussion surrounding concussions in football remains tied to the NFL litigation. However, perhaps the NCAA should be looking carefully over its shoulder. A similar lawsuit against the NCAA could provide much needed relief to the many college athletes that have been victims of head injuries -- some of whom are even denied workmen's compensation. In addition, a concussion lawsuit against the NCAA faces far fewer obstacles based on the unique structure and history of the NCAA. NEVADA PROPERTY: Awaits Order on Bid to Junk Unlawful Taping Suit ----------------------------------------------------------------- Nevada Property 1 LLC is awaiting a court decision on its motion to dismiss a class action lawsuit alleging unlawful taping or recording of calls, 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. A class action lawsuit was filed during the quarterly period ended September 30, 2012, in the Superior Court in the State of California against the Company, alleging violation of the California Penal Code regarding the unlawful taping or recording of calls. This matter is in the earliest stages of proceedings. Meaningful discovery has not commenced, no depositions have occurred, and no motions to certify a class or subclasses have been filed. Substantial questions of law and fact are unresolved. Specific additional factors applicable to this case that prevent the Company from providing an estimate of reasonably possible loss or range of loss include, but are not limited to: (1) whether class certification will be granted and the scope of any class or subclass; (2) the quantification of highly variable damages claimed by the purported class are unspecified or indeterminate; and, (3) the outcome of any future settlement negotiations, should they occur, as they may apply to limit the class or eliminate all class claims. As a result, the Company cannot at this time determine the potential impact of the lawsuit on the consolidated financial position, cash flows, or results of operations of the Company. The Company believes that it has meritorious defenses with respect to this matter and intends to defend its position vigorously. The Company filed a motion to dismiss this lawsuit in October 2012 and is awaiting a ruling from the Superior Court in the State of California. Given the uncertainty of the procedural and substantive legal and factual matters, no estimate of the reasonably possible loss or range of loss in excess of amounts accrued, if any, can be made at this time with respect to the wage and hour and alleged unlawful taping/recording purported class action lawsuits, nor can the Company determine when it will be able to make such an estimate. The Company's assessment of these matters may change based on future unexpected events. An unexpected adverse judgment could cause a material impact on the Company's business operations, results of operations or financial position. Unless otherwise expressly stated, the Company believes costs associated with litigation will not have a material impact on its financial position or liquidity, but may be material to the results of operations in any given period. Nevada Property 1 LLC -- http://www.cosmopolitanlasvegas.com/-- a limited liability company organized in Delaware, owns and operates The Cosmopolitan of Las Vegas. The Cosmopolitan comprises approximately 8.7 acres of land and is located on the Las Vegas Strip directly between MGM Resorts International's Bellagio and City Center properties. The Cosmopolitan is connected to City Center to the south via an elevated pedestrian bridge and to the east side of the Las Vegas Strip via a second pedestrian bridge, as well as ground floor public access from Bellagio to the north. NEVADA PROPERTY: Continues to Face Wage and Hour Suits in Nevada ---------------------------------------------------------------- Nevada Property 1 LLC continues to face class action lawsuits alleging violations of wage and hour laws, 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. During late 2012, the Company was put on notice and or served with two separate class action lawsuits related to alleged unpaid compensation for time incurred by CoStars (the Company identifies its staff as "CoStars") while on property for donning and doffing of the CoStars required uniform, alleged improper rounding of time for hours worked and various other claims related to alleged unpaid compensation. One of the purported wage and hour class action lawsuits is pending in state court, and one is pending in federal court. These matters are in the earliest stages of proceedings with meaningful discovery just commencing. No depositions have occurred. No motion to certify a class has been filed in the state court action. A motion to conditionally certify certain classes of employees was filed in the federal court action, but that motion has been denied in part and stayed in part. In addition, substantial questions of law and fact remain unresolved in both cases, and motion practice may ultimately result in dismissal of the federal court case. The Company is in the process of evaluating the lawsuits and cannot at this time determine the potential impact of the lawsuits on the condensed consolidated financial position, cash flows, or the results of operations of the Company. Specific additional factors applicable to each case that prevent the Company from providing an estimate of reasonably possible loss or range of loss include, but are not limited to: (1) whether class certification will be granted and the scope of any class or subclass; (2) the quantification of highly variable damages claimed by the purported classes and subclasses asserted in separate, but overlapping litigation are unspecified or indeterminate; and (3) the outcome of any future settlement negotiations, should they occur, as they may apply to limit the class or eliminate all class claims. A third purported wage and hour class action was filed in state court in January 2013. This matter is in the earliest stages of proceedings with substantial unresolved questions of law and fact. Specific additional factors applicable to this case that prevent the Company from providing an estimate of reasonably possible loss or range of loss include, but are not limited to: (1) whether class certification will be granted and the scope of any class or subclass; (2) the quantification of highly variable damages claimed by the purported classes and subclasses asserted in separate, but overlapping litigation are unspecified or indeterminate; and (3) the outcome of any future settlement negotiations, should they occur, as they may apply to limit the class or eliminate all class claims. On May 7, 2013, the Company was served with a fourth complaint, naming the Company, another Las Vegas Strip property and a vendor of the Company as defendants in a wage and hour class action, regarding alleged unpaid wages for time incurred by certain of the vendor's employees. The Company is evaluating the claims and assessing its defenses, including whether it has applicable insurance and/or indemnification rights and therefore is unable to currently provide an estimate of reasonably possible loss or range of loss. The Company believes that it has meritorious defenses with respect to these matters and intends to defend its positions vigorously. Nevada Property 1 LLC -- http://www.cosmopolitanlasvegas.com/-- a limited liability company organized in Delaware, owns and operates The Cosmopolitan of Las Vegas. The Cosmopolitan comprises approximately 8.7 acres of land and is located on the Las Vegas Strip directly between MGM Resorts International's Bellagio and City Center properties. The Cosmopolitan is connected to City Center to the south via an elevated pedestrian bridge and to the east side of the Las Vegas Strip via a second pedestrian bridge, as well as ground floor public access from Bellagio to the north. NEW CENTURY: Recalls Loaf Cakes Due to Undeclared Milk and Wheat ---------------------------------------------------------------- Starting date: June 21, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Milk, Allergen - Wheat Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: New Century Food Inc. Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 8118 The Canadian Food Inspection Agency (CFIA) and New Century Food Inc. are warning people with allergies to milk and wheat not to consume the New Century Food brand loaf cakes. The affected products contain milk and wheat which are not declared on the label. There have been no reported illnesses associated with the consumption of these products. Consumption of these products may cause a serious or life- threatening reaction in persons with allergies to milk and/or wheat. The manufacturer, New Century Food Inc., Scarborough, ON, is voluntarily recalling the affected products from the marketplace. The CFIA is monitoring the effectiveness of the recall. Affected products: Brand name Common name Size UPC Additional Info ---------- ----------- ---- ---------- --------------- New Century Butter Loaf 350 g 0 776544 9 Expiry dates: Food Cake 10/06-13 to 28/06-13 New Century Butter Loaf 400 g 0 776583 7 Expiry dates: Food Cake 10/06-13 to 28/06-13 New Century Mango Loaf 400 g 0 776581 4 Expiry dates: Food Cake 10/06-13 to 28/06-13 New Century Banana Loaf 400 g 0 776584 7 Expiry dates: Food Cake 10/06-13 to 28/06-13 New Century Lemon Loaf 400 g 0 776582 3 Expiry dates: Food Cake 10/06-13 to 28/06-13 Picture of the recalled products' labels is available at: http://is.gd/lDqzJt NEW JERSEY: Faces Suit Over Plan to Close Development Centers ------------------------------------------------------------- Andrew Kitchenman, writing for NJ Spotlight, reports that families of intellectually disabled residents are trying to stop the state from closing developmental centers in Woodbridge and Totowa, filing a lawsuit in U.S. District Court in Newark on June 5. The class-action lawsuit filed by 38 families alleges that the state violated the constitutional rights of center residents and also broke a series of federal laws by closing the facilities, forcing their families to either move them to smaller group homes or to more distant developmental centers. "We really feel the state's not listening to us and we needed to do it to really preserve and enforce the civil rights of the families," said Joanne St. Amand, whose sister, Rosemary Sciarillo, has lived at the Woodbridge center for 38 years. A state panel voted last July to close Woodbridge Developmental Center and the North Jersey Developmental Center in Totowa], the only two of the state's seven centers located in heavily populated northeastern New Jersey. Family members protested that residents would be harmed by moving to group homes -- which family members say are incapable of providing the level of service profoundly disabled residents require -- or to other centers that are far from the families. Governor Chris Christie has said he will not reverse the decision made by the panel, which was convened after state officials recommended closing a center in Vineland. Group-home supporters have said they can provide the appropriate level of services to developmental center residents. "We worked hard, we held hearings, and these are the recommendations that came out, and I have no interest in reinventing the wheel," Gov. Christie said of the closures during a March 7 press conference at a group home in Robbinsville. The lawsuit seeks to keep the developmental centers open, to restore staffing levels to what they were before the decision to close the facilities, and to require residents' consent to move from the centers. It alleges that the state has violated the Americans with Disabilities Act, the Rehabilitation Act and Medicaid law. The lawsuit asserts that medical staff recommended that residents stay in the centers until the state decided to close them, when they then began to "routinely and inappropriately" say that many residents would be best served in other locations including group homes that don't provide the constant level of medical care that the developmental centers provide. The suit also alleges that state officials are pressuring family members to choose group homes and have mischaracterized residents' ability to live in group homes. The developmental centers have had to reduce staff and services as residents have left the facilities, putting the remaining residents in danger, according to the lawsuit. The lawsuit notes the severe disabilities that most of the residents have, including Ms. Sciarillo, who is unable to communicate and depends on center staff "to initiate and complete all activities of daily living," and Jackie Friedman, who cannot speak and requires constant care. Sam Friedman, Jackie's brother, said it was easy for the families to decide to file the lawsuit, considering the pressures they face. "The whole process has been fraught with coercion from the beginning," he said, adding that state officials have consistently suggested that there is little room for new residents at the nearest developmental center to northern New Jersey, which is in Hunterdon County. Mr. Friedman said some families have agreed to allow residents to move only after months of pressure from the state. Ms. St. Amand said it would be tragic to move residents 100 miles from their families and from the places where some of them have lived for decades. "That's just unconscionable to force the family" to drive to centers in Vineland or New Lisbon. "Especially if their parents are alive, they're elderly, they'll never make that trip." Ms. St. Amand said the need to file the lawsuit grew as staffing levels at the centers fell. She said residents may not understand what is happening, "but they know that there is an environment of stress. We're just worried for them." Family members have praised the level of care that residents received at the centers before the closure decision, including the constant medical care and other services. Advocates for group homes have said that the same level of services can be provided in those facilities, a claim disputed by family members of developmental center residents. Both the developmental centers and group homes are funded through the state's limited allotment of Medicaid funding. Alison Lozano, executive director of the New Jersey Council on Developmental Disabilities, said advocates believe all people with disabilities "have a civil right to live among us and receive services in home setting." The council is a state-supported nonprofit that advocates for community placement in group homes. "The reality is that there will never be enough resources to meet the needs of a growing and aging population of residents with developmental disabilities within our state if our limited public funds continue to be used to maintain seven large developmental centers with dwindling populations," Ms. Lozano said. Both Ms. Lozano and Christie spokesman Michael Drewniak referred to the U.S. Supreme Court's 1999 Olmstead decision, which requires that disabled residents live in the least restrictive appropriate setting. Ms. Lozano quoted the decision: "Segregation perpetuates unwarranted assumptions that institutionalized people are incapable or unworthy of participating in community life . . . Confinement in an institution severely diminishes the everyday life activities of individuals." The families that filed the lawsuits noted that the Supreme Court decision doesn't require that developmental centers be closed or that residents be forced to move against their will. Instead, it allows less profoundly disabled residents to live in the community. "For my sister there is no benefit whatsoever that could accrue from community placement and she has lived in North Jersey Developmental Center for 47 years," Mr. Friedman said. NEW YORK: Justice Dep't to Intervene on Stop-And-Frisk Program -------------------------------------------------------------- Adam Klasfeld at Courthouse News Service reports that with a federal judge expected to order sweeping reforms to the New York Police Department's stop-and-frisk program, the Justice Department reportedly plans to intervene. Trial completed in late May in the case of Floyd v. The City of New York, a class action to determine whether the NYPD's stop, question and frisk tactic unconstitutionally targets blacks and Latinos. Under the Supreme Court's decision in Terry v. Ohio, police cannot stop and search a suspect without reasonable suspicion that he is about to commit, is committing or has committed a crime. But the court heard NYPD data, memorialized on so-called "UF-250" forms, suggesting that street stops correspond more closely with race than criminal suspicion. Columbia University Professor Jeffrey Fagan's study of those forms indicated that roughly 87 percent of the roughly 5 million people who have been stopped were black or Latino. Police seized guns in only 0.15 percent of all stops, and found "contraband" in general in 1.75 percent of all stops. Lawyers for the stop-and-frisk challengers noted that this "hit rate" was lower than in the case of a car random checkpoint protested in Indianapolis v. Edmonds, in which police seized drugs in 5 percent of all vehicles. U.S. District Judge Shira Scheindlin, who heard Floyd without a jury, has not indicated how she will rule, but observers expect the civil libertarian judge to appoint a monitor to oversee the NYPD. The Center for Constitutional Rights, representing the Floyd plaintiffs, welcomed the Justice Department's expected support of such a measure, first reported by the New York Daily News. "The DOJ has put in place similar agreements with other cases alleging widespread unconstitutional policing practices," the rights group said in a statement. "It is high time the city of New York and its police department stop their obstinate non- compliance with the law and accept that the kind of significant change necessary to fix the problems with the NYPD's stop-and- frisk practices will require outside monitoring." The parties filed post-trial submissions on June 12, 2013. NICK CASSAVETES: Faces Class Action Over Labor Violations --------------------------------------------------------- Courthouse News Service reports that in a federal class action, five crew members claim Nick Cassavetes, Medient Entertainment, Yellow Productions et al. stiffed them for minimum wages and overtime. NORTHWEST BANCSHARES: "Daly" Suit Plaintiff Has Renewed Cert. Bid ----------------------------------------------------------------- The Plaintiff in the class action lawsuit styled Daly v. Northwest Savings Bank has filed a renewed motion for class certification, according to Northwest Bancshares, Inc.'s May 10, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On July 11, 2011, the Company was named as a defendant in an alleged class action lawsuit filed in the United States District Court for the Western District of Pennsylvania, captioned as Daly v. Northwest Savings Bank, No. 2:11-cv-00911-DSC. The Complaint challenges the credit disclosures provided to residential mortgage loan applicants and the policies related to the residential mortgage loan application process and the prequalification request process. The Complaint asserts statutory claims under the Fair Credit Reporting Act, 15 U.S.C. 1681g(g), and seeks statutory damages and attorneys' fees. The Company filed a motion for summary judgment and the plaintiff filed a motion for class certification, which the Company opposed. By way of Opinion and Order dated March 20, 2013, the Court denied the Company's motion for summary judgment as to plaintiff's individual claims, but also denied the plaintiff's motion for class certification. The Plaintiff has filed a renewed motion for class certification and the Company says it will continue to vigorously defend against the plaintiff's claims and any effort to certify a class in this case. At this stage of the lawsuit, it is not yet possible to estimate potential losses, if any. Although it is not possible to predict the ultimate resolution or financial liability with respect to this litigation, management, after consultation with legal counsel, currently does not anticipate that the aggregate liability, if any, arising out of this proceeding will have a material adverse effect on the Company's financial position, or cash flows; although, at the present time, the Company is not in a position to determine whether such proceeding will have a material adverse effect on its results of operations in any future quarterly reporting period. Warren, Pennsylvania-based Northwest Bancshares, Inc. -- http://www.northwestsavingsbank.com/-- was incorporated in September 2009 to be the successor corporation to Northwest Bancorp, Inc., the former stock holding company for Northwest Savings Bank. The Bank is a Pennsylvania-chartered stock savings and is a community-oriented financial institution offering personal and business banking solutions, investment management and trust services and insurance products. NORTHWEST BANCSHARES: Awaits Opinion and Order in "Toth" Suit ------------------------------------------------------------- Northwest Bancshares, Inc., is awaiting an Opinion and Order in the class action lawsuit titled Toth v. Northwest Savings Bank, 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 7, 2012, the Company was named as a defendant in an alleged class action lawsuit filed in the Court of Common Pleas of Allegheny County, Pennsylvania, captioned as Toth v. Northwest Savings Bank, No. GD-12-8014. The Complaint challenges the manner in which debit card transaction overdraft fees were charged and the policies related to the posting order of debit card transactions. The Complaint asserts various claims under state law and seeks compensatory damages and attorneys' fees. The Company filed preliminary objections seeking dismissal of the case on June 29, 2012. In response, the plaintiff filed an Amended Complaint on September 6, 2012. On November 5, 2012, the Company filed preliminary objections to the Amended Complaint. The Plaintiff filed her opposition to the Company's preliminary objections on December 6, 2012, and the Company filed its reply in support of the preliminary objections on January 3, 2013. Subsequent briefing has been filed as directed by the Court and the Company awaits an Opinion and Order. The Company says it intends to vigorously defend against the plaintiff's claims and to oppose any effort to certify a class in this case. At this stage of the lawsuit, it is not yet possible to estimate potential losses, if any. Although it is not possible to predict the ultimate resolution or financial liability with respect to this litigation, management after consultation with legal counsel, currently does not anticipate that the aggregate liability, if any, arising out of this proceeding will have a material adverse effect on the Company's financial position, or cash flows; although, at the present time, the Company is not in a position to determine whether such proceeding will have a material adverse effect on its results of operations in any future quarterly reporting period. Warren, Pennsylvania-based Northwest Bancshares, Inc. -- http://www.northwestsavingsbank.com/-- was incorporated in September 2009 to be the successor corporation to Northwest Bancorp, Inc., the former stock holding company for Northwest Savings Bank. The Bank is a Pennsylvania-chartered stock savings and is a community-oriented financial institution offering personal and business banking solutions, investment management and trust services and insurance products. NRG ENERGY: GenOn Suit Plaintiffs Want Case Dismissal Reviewed -------------------------------------------------------------- The plaintiffs in the Natural Gas Litigation filed a petition for certiorari to the United States Supreme Court after the dismissal of all claims against GenOn Energy, Inc., 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. NRG's subsidiary, GenOn, is party to five lawsuits, several of which are class action lawsuits, in state and federal courts in Kansas, Missouri, Nevada and Wisconsin. These lawsuits were filed in the aftermath of the California energy crisis in 2000 and 2001 and the resulting FERC investigations and relate to alleged conduct to increase natural gas prices in violation of antitrust and similar laws. The lawsuits seek treble or punitive damages, restitution and/or expenses. The lawsuits also name as parties a number of energy companies unaffiliated with NRG. In July 2011, the United States District Court for the District of Nevada, which is handling four of the five cases, granted the defendants' motion for summary judgment and dismissed all claims against GenOn in those cases. The plaintiffs appealed to the United States Court of Appeals for the Ninth Circuit. The Ninth Circuit has reversed the decision of the United States District Court for the District of Nevada. In September 2012, the State of Nevada Supreme Court, which is handling the remaining case, affirmed dismissal by the Eighth Judicial District Court for Clark County, Nevada of all plaintiffs' claims against GenOn. In February 2013, the plaintiffs filed a petition for certiorari to the United States Supreme Court. GenOn has agreed to indemnify CenterPoint against certain losses relating to these lawsuits. NRG ENERGY: Cheswick Property Owners Appeal Dismissal of Suit ------------------------------------------------------------- Plaintiffs in a suit against NRG Energy, Inc. over alleged property damage are appealing the dismissal of the suit to the U.S. Court of Appeals for the Third 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. In April 2012, a putative class action lawsuit was filed in the Court of Common Pleas of Allegheny County, Pennsylvania alleging that emissions from the Cheswick generating facility have damaged the property of neighboring residents. The Company disputes these allegations. Plaintiffs have brought nuisance, negligence, trespass and strict liability claims seeking both damages and injunctive relief. Plaintiffs seek to certify a class that consists of people who own property or live within one mile of the Company's plant. In July 2012, the Company removed the lawsuit to the United States District Court for the Western District of Pennsylvania. In October 2012, the court granted the Company's motion to dismiss, which Plaintiffs have appealed to the U.S. Court of Appeals for the Third Circuit. NRG ENERGY: July 16 Final Approval Hearing on Energy Plus Accord ---------------------------------------------------------------- A final approval hearing is set July 16, 2013, for a settlement that Energy Plus Holdings, LLC entered into to settle a suit alleging improper sales, marketing and business practices, according to NRG Energy, Inc.'s May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Energy Plus Holdings, LLC, a subsidiary of NRG, is a defendant in six purported class action lawsuits, two in New York, two in New Jersey, and two in Pennsylvania. On February 28, 2013, Energy Plus entered into a settlement agreement with plaintiffs which resolves all of the claims in the six pending suits, subject to court approval. On March 26, 2013, the United States District Court, Southern District of New York entered an order preliminarily approving the settlement and scheduling a final approval hearing for July 16, 2013. Energy Plus continues to cooperate with the Connecticut Attorney General and Office of Consumer Counsel and the State of New York Office of Attorney General to resolve issues related to Energy Plus's sales, marketing and business practices raised by the class actions. Energy Plus and the Connecticut Attorney General and Office of Consumer Counsel have been involved in settlement discussions and their efforts to reach a resolution continue. NRG ENERGY: Settlement Hearing on Suit Over Merger in June ---------------------------------------------------------- The hearing on the class action settlement of an action filed against NRG Energy, Inc. over its merger with GenOn Energy, Inc. is scheduled for June 3, 2013, according to NRG's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. NRG has been named as a defendant in eight purported class actions pending in Texas and Delaware, related to its announcement of its agreement to acquire all outstanding shares of GenOn. These cases have been consolidated into one state court case in each of Delaware and Texas and a federal court case in Texas. The plaintiffs generally allege breach of fiduciary duties, as well as conspiracy, aiding and abetting breaches of fiduciary duties. Plaintiffs are generally seeking to: be certified as a class; enjoin the merger; direct the defendant to exercise their fiduciary duties; rescind the acquisition and be awarded attorneys' fees costs and other relief that the court deems appropriate. Plaintiffs also demanded that there be additional disclosures regarding the merger terms. On October 24, 2012, the parties to the Delaware state court case executed a Memorandum of Understanding to resolve the Delaware purported class action lawsuit. In March 2013, the parties finalized the settlement of the Delaware action. The hearing on the class action settlement of the Delaware action is scheduled for June 3, 2013. PILOT FLYING J: Gordon Ball Joins President's Defense Team ---------------------------------------------------------- MetroPulse reports that Gordon Ball is known these days for being a class-action attorney who wins multi-million dollar judgments, some of them against paper companies polluting the Pigeon River. But Mr. Ball has joined the defense team for Mark Hazelwood, president of Pilot Flying J. The company is under federal investigation for shorting trucking company customers of rebates. Mr. Ball is back in defense mode because Mr. Hazelwood is a longtime personal friend. Mr. Ball started out as a federal prosecutor, but became a defense attorney. During the Butcher banking scandals, Mr. Ball won a surprise not-guilty verdict for Jim Steiner, who had been president of the Butcher-owned Southern Industrial Banking Company, a non-FDIC insured institution. During the pardon and paroles scandal during the Blanton administration, people were convicted for selling "get out of jail free" cards, with one notable exception. Mr. Ball got a not- guilty verdict for his friend Charley Benson -- who was in charge of the paroles department. Meanwhile, locals are spending some time on the Cleveland Plain Dealer website. The paper has been all over the story because Pilot Flying J CEO Jimmy Haslam owns the Cleveland Browns. This week the paper reported that Pilot board member Brad Martin, who the company put in charge of an internal investigation, once got in trouble when he headed the Saks Fifth Avenue department store chain. The company paid a massive fine after being accused of shorting vendors. Gov. Bill Haslam, Jimmy's brother, once worked for Martin as head of the Saks online sales department. PLAINS EXPLORATION: Oral Arguments Heard in Suit Over Merger ------------------------------------------------------------ The Court of Chancery of the State of Delaware heard oral arguments on the injunctive relief requested by the plaintiffs in the consolidated a consolidated securities suit against Plains Exploration & Production Company, but no decision was entered by the court at such hearing, according to the company's May 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. Beginning on December 5, 2012, 27 purported shareholder class actions were filed challenging the merger of PXP with Freeport- McMoRan and the MMR Merger. The lawsuits were filed against PXP, Freeport-McMoRan and McMoRan and the boards of these companies as well as certain other named individuals. The shareholder class actions generally allege that the boards of these companies breached fiduciary duties and adversely affected shareholders by approving the merger and the MMR Merger. On December 5, 2012, PXP entered into the Freeport-McMoRan Merger Agreement with Freeport-McMoRan and the Merger Sub, pursuant to which Freeport-McMoRan will acquire PXP. On December 5, 2012, Freeport-McMoRan agreed to acquire McMoRan. Between December 11, 2012 and December 20, 2012, three putative class actions challenging the merger were filed on behalf of PXP stockholders in the Court of Chancery of the State of Delaware: Rice v. Plains Exploration & Production Co. et al., No. 8090-VCN, filed on December 11, 2012; MARTA/ATU Local 732 Employees Retirement Plan v. Plains Exploration & Production Co. et al., No. 8135-VCN, filed on December 20, 2012; and Louisiana Municipal Police Employees' Retirement System v. Arnold et al., No. 8141-VCN, also filed on December 20, 2012. The actions name as defendants PXP, the directors of PXP, Freeport-McMoRan, and a Freeport-McMoRan subsidiary. The actions allege that PXP's directors breached their fiduciary duties because they, among other things, pursued their own interests at the expense of stockholders, failed to maximize stockholder value with respect to the merger and failed to disclose material facts regarding the merger, and that Freeport- McMoRan and a Freeport-McMoRan subsidiary aided and abetted the breach of fiduciary duties by PXP's directors. The actions seek as relief an injunction barring or rescinding the merger, damages, and attorneys' fees and costs. On January 7, 2013, the MARTA/ATU Local 732 Employees Retirement Plan action was voluntarily dismissed by the plaintiff. On January 15, 2013, the Court of Chancery of the State of Delaware entered an order consolidating the two remaining actions under the caption In re Plains Exploration & Production Company Stockholder Litigation, No. 8090- VCN, and appointing co-lead counsel for the plaintiffs. In addition, fourteen derivative actions challenging both the merger and/or the MMR Merger have been filed on behalf of Freeport-McMoRan by purported Freeport-McMoRan stockholders. Eleven of these actions were filed in the Court of Chancery of the State of Delaware: Jacksonville Police & Fire Pension Fund v. Moffett et al., No. 8110-VCN, filed on December 14, 2012; Sklar v. Moffett et al., No. 8126-VCN, filed on December 19, 2012; Gaines v. Adkerson et al., No. 8139-VCN, filed on December 20, 2012; Rosenzweig v. Adkerson et al., No. 8140-VCN, filed on December 20, 2012; Lang v. Moffett et al., No. 8142-VCN, filed on December 21, 2012; Dauphin County Employee Retirement Fund v. Moffett et al., No. 8145-VCN, filed on December 21, 2012; Anthony Newman v. James R. Moffett, et al., No. 8156-VCN, filed on December 28, 2012; State-Boston Retirement System v. Moffett, et al., C.A. No. 8206- VCN, filed on January 11, 2013; Inter-Local Pension Fund of the Graphic Communications Conference of the International Brotherhood of Teamsters v. Moffett, et al., C.A. No. 8207-VCN, filed on January 11, 2013; and United Wire Metal and Machine Pension Fund v. Moffett, et al., C.A. No. 8208-VCN, filed on January 11, 2013; and Stephen Blau MD Money Purchase Pension Plan Trust v. Moffett et al., No. 8384-VCN, filed on March 5, 2013. Three were filed in the Superior Court of the State of Arizona, County of Maricopa: Liberatore v. Moffett et al., No. CV2012-018351, filed on December 14, 2012; Teich et al. v. Moffett et al., No. CV2012-018403, filed on December 17, 2012; and Jeffery Harris v. Richard C. Adkerson, et al., CV2013-004163, filed on January 16, 2013. The actions name some or all of the following as defendants: the directors and certain officers of Freeport-McMoran, two Freeport- McMoRan subsidiaries, PXP and certain of its directors and McMoRan and certain of its directors. The actions allege that the Freeport-McMoran directors breached their fiduciary duties because they, among other things, pursued their own interests at the expense of Freeport-McMoran stockholders in approving the merger and the MMR Merger, and further allege that some or all of the other defendants aided and abetted such breaches of fiduciary duties. On January 25, 2013, the Court of Chancery of the State of Delaware entered an order consolidating ten of the eleven actions pending in that court under the caption In re Freeport-McMoRan Copper & Gold Inc. Derivative Litigation, No. 8145-VCN, and appointing co-lead counsel for the plaintiffs. The Arizona Superior Court consolidated the Arizona actions into In re Freeport-McMoRan Copper & Gold Inc. Derivative Litigation, No. CV2012-018351. The parties to the consolidated Delaware action have stipulated to allow the Arizona plaintiffs to intervene in the consolidated Delaware action, and the court granted that stipulation on March 18, 2013. The Arizona plaintiffs have agreed to seek a permanent stay of the Arizona actions. The actions seek as relief, among other things, an injunction barring or rescinding both the merger and the MMR Merger and requiring submission of the proposed merger and MMR Merger to a vote of Freeport-McMoRan stockholders, damages and attorneys' fees and costs. The plaintiffs in the consolidated Delaware action informed the Court on March 21, 2013 that they will not seek a preliminary injunction barring either the merger or the MMR Merger. In addition, ten putative class actions challenging the MMR Merger have been filed on behalf of McMoRan stockholders. Nine of these actions were filed in the Court of Chancery of the State of Delaware: Krieger v. McMoRan Exploration Co. et al., No. 8091-VCN, filed December 11, 2012; Steven Kosoff IRA v. McMoRan Exploration Co. et al., No. 8100-VCN, filed December 12, 2012; Barasch v. McMoRan Exploration Co. et al., No. 8106-VCN, filed December 13, 2012; Berstein v. Moffett et al., No. 8107-VCN, filed December 13, 2012; Curalov v. McMoRan Exploration Co. et al., No. 8115-VCN, filed December 17, 2012; Purnell et al. v. Adkerson et al., No. 8117-VCN, filed December 17, 2012; Yagoobian v. McMoRan Exploration Co. et al., No. 8128-VCN, filed December 19, 2012; Davis v. McMoRan Exploration Co. et al., No. 8132-VCN, filed December 20, 2012; and Seidlitz v. Adkerson et al., No. 8151-VCN, filed December 26, 2012. One was filed in the Civil District Court for the Parish of Orleans of the State of Louisiana: Langley v. Moffett et al., No. 2012-11904, filed December 19, 2012. Each of the actions names the McMoRan directors as defendants, as well as some or all of the following: Freeport-McMoRan, subsidiaries of Freeport-McMoRan, and PXP. The actions allege that McMoRan's directors breached their fiduciary duties because they, among other things, pursued their own interests at the expense of the stockholders, failed to maximize stockholder value with respect to the MMR Merger and failed to disclose material facts with regard to the MMR Merger, and further allege that some or all of the other defendants aided and abetted such breaches of fiduciary duties. One of the lawsuits also asserts breach of contract claims against Freeport-McMoRan and PXP derivatively on behalf of McMoRan. The actions seek, among other things, injunctive relief barring or rescinding the MMR Merger, damages, and attorneys' fees and costs. On January 9, 2013, the Krieger action was voluntarily dismissed by the plaintiff. On January 25, 2013, the Court of Chancery of the State of Delaware entered an order consolidating the remaining eight actions pending in that court under the caption In re McMoRan Exploration Co. Stockholder Litigation, No. 8132-VCN, and appointing co-lead counsel for the plaintiffs. On March 28, 2013, Defendants moved to stay the Louisiana action. On May 1, 2013, the Court of Chancery of the State of Delaware heard oral arguments on the injunctive relief requested by the plaintiffs in the consolidated PXP action, but no decision was entered by the court at such hearing. The hearing in the MMR Merger consolidated action was postponed per agreement of the parties. PROSHARES TRUST: Oral Argument in Class Suit Appeal Held in May --------------------------------------------------------------- Oral argument on the plaintiffs' appeal from the dismissal of their class action lawsuit against ProShares Trust II was held in May 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. ProShares Trust II (the Trust) and certain principals of ProShare Capital Management LLC (the "Sponsor") have been named as defendants (along with several other parties) in a consolidated class action lawsuit filed in the United States District Court for the Southern District of New York, styled In re ProShares Trust Securities Litigation, Civ. No. 09-cv-6935. The complaint, as amended, alleged that the defendants violated Sections 11 and 15 of the Securities Act of 1933 by including untrue statements of material fact and omitting material facts in the Registration Statement for one or more ProShares ETFs and allegedly failing to adequately disclose the Funds' investment objectives and risks. The six Funds of the Trust named in the complaint were ProShares Ultra Silver, ProShares UltraShort Gold, ProShares Ultra Gold, ProShares UltraShort DJ-UBS Crude Oil, ProShares Ultra DJ-UBS Crude Oil and ProShares UltraShort Silver. On September 10, 2012, the District Court issued an Opinion and Order dismissing the class action lawsuit in its entirety. On December 17, 2012, the plaintiffs filed an appeal brief to the United States Court of Appeals for the Second Circuit. Oral argument on plaintiffs' appeal before the United States Court of Appeals for the Second Circuit was held on May 2, 2013. The Trust believes the complaint is without merit and that the anticipated outcome will not adversely impact the operation of the Trust or any of its Funds. Accordingly, no loss contingency has been recorded in the balance sheet and the amount of loss, if any, cannot be reasonably estimated at this time. ProShares Trust II, formerly known as the Commodities and Currencies Trust -- http://www.ProShares.com/-- is a Delaware statutory trust formed on October 9, 2007, and currently organized into separate series. As of March 31, 2013, 21 series of the Trust have commenced investment operations. PROSPER MARKETPLACE: Continues to Defend Securities Class Suit -------------------------------------------------------------- Prosper Marketplace, Inc., continues to defend itself against a securities 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. On November 26, 2008, the plaintiffs, Christian Hellum, William Barnwell and David Booth, individually and on behalf of all other plaintiffs similarly situated, filed a class action lawsuit against Prosper Marketplace, Inc. ("PMI") and certain of its executive officers and directors in the Superior Court of California, County of San Francisco, California. The lawsuit was brought on behalf of all promissory note purchasers on the platform from January 1, 2006, through October 14, 2008. The lawsuit alleges that PMI offered and sold unqualified and unregistered securities in violation of the California and federal securities laws. The lawsuit seeks class certification, damages and the right of rescission against PMI and the other named defendants, as well as treble damages against PMI and the award of attorneys' fees, experts' fees and costs, and pre-judgment and post-judgment interest. On February 25, 2011, the plaintiffs filed a Third Amended Complaint, which removed David Booth as a plaintiff and added Brian Russom and Michael Del Greco as plaintiffs. The new plaintiffs are representing the same class and prosecuting the same claims as the previously named plaintiffs. On February 29, 2012, the court issued a procedural order granting the plaintiffs' motion for class certification. On October 4, 2012, PMI and the other named defendants filed a motion for summary judgment seeking dismissal of the lawsuit. On January 17, 2013, the motion for summary judgment was denied. Greenwich Action PMI's insurance carrier with respect to the class action lawsuit, Greenwich Insurance Company ("Greenwich"), denied coverage. On August 21, 2009, PMI filed a lawsuit against Greenwich in the Superior Court of California, County of San Francisco, California. The lawsuit sought a declaration that PMI was entitled to coverage under its policy with Greenwich for losses arising out of the class action lawsuit as well as damages and the award of attorneys' fees and pre- and post-judgment interest. On January 26, 2011, the court issued a final statement of decision finding that Greenwich has a duty to defend the class action lawsuit, and requiring that Greenwich pay PMI's past and future defense costs in the class action lawsuit up to $2 million. Greenwich subsequently made payments to PMI in the amount of $2 million to reimburse PMI for the defense costs it had incurred in the class action lawsuit. As a result, Greenwich has now satisfied its obligations with respect to PMI's defense costs for the Hellum lawsuit. On October 22, 2012, Greenwich made an additional payment of $142,585 to PMI for pre-judgment interest. As a result, Greenwich has now satisfied its obligations with respect to PMI's defense costs for the Hellum lawsuit. On July 1, 2011, PMI and Greenwich entered into a Stipulated Order of Judgment pursuant to which PMI agreed to dismiss its remaining claims against Greenwich. On August 12, 2011, Greenwich filed a notice of appeal of the court's decision regarding Greenwich's duty to defend up to $2 million. PMI says it intends to vigorously defend the class action lawsuit. PMI cannot, however, presently determine or estimate the final outcome of the lawsuit, and there can be no assurance that it will be finally resolved in PMI's favor. If the class action lawsuit is not resolved in PMI's favor, PMI might be obliged to pay damages, and might be subject to such equitable relief as a court may determine. Accordingly, the PMI Group has not recorded an accrued loss contingency in connection with PMI's sale of notes through the platform prior to November 2008. Accounting for loss contingencies involves the existence of a condition, situation or set of circumstances involving uncertainty as to possible loss that will ultimately be resolved when one or more future event(s) occur or fail to occur. An estimated loss in connection with a loss contingency shall be recorded by a charge to current operations if both of the following conditions are met: first, the amount can be reasonably estimated; and second, the information available prior to issuance of the financial statements indicates that it is probable that a liability has been incurred at the date of the financial statements. As of March 31, 2013, the probable outcome of the class action lawsuit cannot be determined, nor can the amount of damages or other costs that might be borne by the PMI Group be estimated. San Francisco, California-based Prosper Marketplace, Inc. -- http://www.prosper.com/-- operates as a peer-to-peer lending marketplace in the United States. The Company connects prospective borrowers with people, who have money and a willingness to lend through an online community. The Company handles funding and servicing of the loan on behalf of the matched borrowers and investors. REMINGTON ARMS: Faces Class Action Over Model 700 Rifle Defect -------------------------------------------------------------- Eve Byron, writing for Independent Record, reports that a class- action lawsuit was filed on June 4 in federal court in Montana against gun manufacturer Remington Arms Company, claiming that it knew since the 1940s that its Model 700 rifle had a faulty mechanism that allowed the gun to discharge without a trigger pull, but failed to notify the public of the defect. This lawsuit, filed by Richard Ramler on behalf of Eric Huleatt and Allen Bowker, is different than previous lawsuits filed in the state because it's not focusing on allegations that the plaintiffs were seriously injured or killed by their gun's misfiring. Instead, Mr. Ramler writes that Remington knew the Model 700 rifles were defective, yet the company failed to warn people who purchased the weapon, failed to remedy the situation and required gun owners to pay a fee for both shipping and a replacement trigger once they notified Remington of the defect. The gun maker "put profit over the health and safety of the public," Mr. Ramler wrote in the lawsuit. Mr. Ramler said this is the fourth class-action lawsuit filed against Remington in recent years. Others were filed in Florida, Washington and Missouri. "Our goal is to try to have those rifles recalled and the firing control or trigger mechanism replaced with a safe mechanism, so it won't fire without the trigger being pulled," Mr. Ramler said. "We're trying to provide notice to the public because these guns are dangerous. "This isn't about an individual injury . . . this is about a defective rifle." Along with the Remington Arms Co., Mr. Ramler named E.I. DuPont DeNemours and Co., and Sporting Goods Properties as defendants. DuPont owned all of Remington's stock before 1993 and Sporting Goods Properties is the name by which Remington is now known. The plaintiffs want Remington to acknowledge the defect in the Model 700 bolt-action rifles that carry the Walker Fire Control and that they knew about it; recall the guns and fix them; and enter an award to Messrs. Huleatt and Bowker, as well as any other Montanan who joins the class-action lawsuit, for compensatory, punitive and statutory damages. It also seeks any of the "ill- gotten profits" from the sales of the gun to be disbursed among the plaintiffs. Remington's attorney, Dale Wills, couldn't be reached for comment on June 5. However, in previous lawsuits the company claims that misuse or abuse of the rifle by its handler has caused any alleged malfunctions. In a written statement for a CNBC documentary about possible defects with the Model 700, Remington stated that "the gun's use by millions of Americans has proven it to be a safe, trusted and reliable rifle." According to the most recent lawsuit, Remington developed the patented Walker Fire Control mechanism and introduced it in 1948. The firing mechanism is found in more than 5 million Remington firearms. But Mr. Ramler writes that even before their use, an internal inspection in 1947 found dangerous design flaws with the Walker Fire Control trigger assembly. "The rifles will fire without a trigger pull under a variety of circumstances due to the faulty design," Mr. Ramler wrote. "All of the Model 700 rifles are defective and unreasonably dangerous. "Despite decades of knowledge related to the dangerous conditions of the Model 700 rifles, defendants never issued an adequate warning or recall of the Model 700 rifles. Remington continues to falsely represent to the public that the rifles are safe and reliable." He notes that the Model 600 series also incorporated the basic Walker Fire Control design, and it was only after one of the largest settlements ever awarded at the time to an accident victim by a firearm manufacturer's insurance carrier in 1978 that Remington recalled those firearms. In that case, Remington agreed to pay $6.8 million to an Illinois man who was paralyzed from the waist down in a hunting accident. The Walker Fire Control is still used in the Model 700 rifles. Mr. Huleatt, who lives in Missoula County, purchased his Remington in 2000. Mr. Bowker, a Roosevelt County resident, bought his in 2006. Both said they did so believing it was a reliable, high- quality firearm. Mr. Ramler wrote that Mr. Bowker contacted Remington in 2010 after watching the CNBC documentary that outlined alleged defects with the Model 700. "Bowker was told by a Remington representative that there was nothing wrong or defective with this rifle or any of the Model 700 rifles," Mr. Ramler wrote. Yet Mr. Bowker was closing the bolt on his firearm one day and the rifle allegedly "suddenly and unexpectedly fired" without a trigger pull. Mr. Ramler said that the defendants acknowledged receiving 3,273 customer complaints about the Model 700 firing without a trigger pull between 1992 and 2004. "This is an average of almost five unintended firings per week for this 12-year period," Mr. Ramler wrote. He said that Remington engineers first started developing alternate designs for a trigger block in 1948, but that it cost too much -- $21,380 -- to make the conversion, which would have added about five cents then to the cost of the rifle. Mr. Ramler wrote that according to internal Remington documents, they considered a recall of the Model 700 in 1978, but with 2 million already sold, it was deemed too expensive. He said that in 1994, after a jury rendered a $17 million verdict against Remington because of Model 700 defects, the company again questioned its safety, according to internal documents. "At that time, Remington accountants determined that if only 30 percent of its customers actually returned the rifles as part of a nationwide recall of the Model 700 rifles, it would cost Remington $22 million to conduct the recall," Mr. Ramler wrote. "Remington decided against the proposed recall." According to Mr. Ramler, more than 140 lawsuits have been filed against Remington involving serious injuries or death, including at least three lawsuits in Montana. In one of the Montana cases, Richard Barber's family settled with Remington for an undisclosed amount after his 9-year-old son Gus was killed when his mother moved the safety on her Model 700 to the off position in order to unload her rifle and the gun went off. The company also agreed to the family's request for a safety modification program, but Mr. Ramler alleges that only addresses one of the issues with the Model 700's unexpected firings. The newest lawsuit asserts Remington is guilty of strict liability for its failure to warn about the design defect; negligence; violation of the Magnuson-Moss Act, which says retailers must comply with warranties; breach of both expressed and implied warranties; fraudulent concealment; and unjust enrichment. RIGEL PHARMACEUTICALS: No Appeal Filed in Cal. Securities Lawsuit ----------------------------------------------------------------- The plaintiff in a securities suit filed against Rigel Pharmaceuticals, Inc. did not file a writ of certiorari as of a January deadline, 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 February 6, 2009, a purported securities class action lawsuit was commenced in the United States District Court for the Northern District of California, naming the company as defendants and certain officers, directors and underwriters for a February 2008 public offering of common stock. The lawsuit alleged violations of the Securities Act of 1933, as amended (Securities Act) and the Securities Exchange Act of 1934, as amended (Exchange Act) in connection with allegedly false and misleading statements made by the company related to the results of the Phase 2a clinical trial of the company's product candidate, fostamatinib. On November 5, 2012, the Ninth Circuit Court of Appeals entered judgment in the company's favor. The plaintiff had until January 23, 2013 to seek a writ of certiorari from the United States Supreme Court, but did not do so. RJ REYNOLDS: NELA Asks 4th Cir. to Revive Class Action ------------------------------------------------------ Ben James, writing for Law360, reports that the National Employment Lawyers Association urged the Fourth Circuit on June 4 to revive a class action against R.J. Reynolds Tobacco Co. over $50 million allegedly lost to retirement plan mismanagement, claiming the trial court erred in letting the company off the hook. The NELA, along with the AARP, lodged a brief arguing that the trial court dropped the ball in February when it ruled against retiree Richard Tatum and in favor of R.J. Reynolds. SASKATCHEWAN: McCarthy Discusses Class Action Ruling ---------------------------------------------------- Kirsten Thompson, Esq. -- kithompson@mccarthy.ca -- at McCarthy Tetrault LLP report that In Precision Contractors Ltd v Government of Saskatchewan, 2013 SKCA 57, the Court of Appeal found that a common issue of constitutional validity did not, in and of itself, make a class action not the "preferable proceeding". The Court of Appeal held that there was no absolute rule that a class action was perforce ill-suited to a claim for a declaration that a provincial taxing enactment was unconstitutional. In addition, the Court of Appeal noted the certification judge's next step, bifurcating the proceedings by conditionally adjourning the certification application pending the determination of the constitutional issue in a separate declaratory proceeding outside the framework of The Class Actions Act, SS 2001, c C-12.01, would create procedural and substantive inequities. Background Precision Contractors Ltd. applied to have a proposed action certified as a class action pursuant to the Act. At issue was the constitutional validity of provincial legislation and/or regulations imposing provincial sales tax on construction vehicles and equipment brought into Saskatchewan from Alberta for temporary use in PC's business. The certification judge identified three common issues, the first of which was whether sections of the Provincial Sales Tax Regulations, RRS c E-3 Reg 1 ultra vires the legislative or regulatory powers of the Province of Saskatchewan. The Act sets out five requirements that must be met in order for a class action to be certified. The certification judge ruled that the first three requirements for class certification were met, but then found that a class action was not the preferable procedure -- the fourth requirement for certification -- for addressing the constitutional validity of the legislation. In coming to this conclusion, the certification judge relied upon the decisions from the Supreme Court of Canada in Guimond v. Qu�bec (Attorney General), 1996 CanLII 175 (SCC), and Marcotte v. Longueuil (City), 2009 SCC 43 in holding that it was "generally undesirable" to pursue a class action to obtain a declaration of constitutional validity. As a result, the certification judge reasoned that PC should commence a judicial review application to determine the constitutional issue with leave to bring the certification application back after the constitutional question had been determined so the remaining common issues could potentially be certified. Analysis The Court of Appeal found that the certification judge had erred in his reading of Guimond. While acknowledging that the Supreme Court had said that ". . . it is not necessary to pursue a class action to obtain a declaration of constitutional invalidity and therefore, that it is generally undesirable to do so . . .", the Court of Appeal noted that this was said in obiter dictum. The Court of Appeal held that Guimond could not be viewed as unequivocally standing for the general proposition that class actions as such are perforce ill-suited to the resolution of litigation seeking a declaration that an enactment is unconstitutional. The Court of Appeal also reviewed the certification judge's analysis of the Supreme Court's decision in Marcotte, a case dealing with an allegation that a municipal property tax by-law was ultra vires the enabling legislation. In Quebec, a class action procedure is not available to challenge the validity of a municipal by-law. The reason for this is that a declaration of nullity obtained by an individual ratepayer in an individual proceeding is binding on all ratepayers. The plaintiffs in Marcotte appealed to the Supreme Court of Canada. Five members of the Court were of the opinion the appeal should be dismissed, whereas four were of the view it should be allowed. The Court of Appeal, noting that the case was of "considerable complexity", held that much of the decision was tied into the Qu�bec Code of Civil Procedure and held that it was of limited application in Saskatchewan. However, the Court of Appeal felt that Marcotte had some instructive value and found, contrary to the view of the certification judge, that it did not support the notion that a class action in and of itself was unsuited to a claim for a declaration declaring a provincial taxing enactment to be unconstitutional. After determining that a class action was not the preferable procedure, the certification judge did not dismiss the certification application but rather adjourned the certification motion until the constitutional question had been addressed with leave to bring it back to address the remaining issues. The Court of Appeal found that this was not appropriate for a number of reasons. The bifurcation of the proceedings would likely increase costs and require more by the way of judicial resources than by having all three common issues determined and dealt with at the same time and in the same process. A common proceeding would also ensure that all class members are treated fairly and have adequate notice of all aspects of the litigation. It would also treat PC fairly and not require it to launch a separate proceeding outside the framework of the Act that would expose it to costs. As a result, the appeal was allowed although the Court of Appeal declined the appellant's request to certify the class action in that court. The case was remitted to the certification judge to conclude the certification hearing. SEQUEL NATURALS: Recalls Vega(R) Brand Bars Over Undeclared Milk ---------------------------------------------------------------- Starting date: June 21, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Sequel Naturals Ltd. Distribution: National Extent of the product distribution: Retail The public warning issued on June 6, 2013, has been amended to correctly identify the affected lot codes and associated Best By dates for the Vega(R) Sport Endurance Bar Mocha product. There has been one reported allergic reaction. Consumption of these products may cause a serious or life- threatening reaction in persons with allergies to milk. The distributor, Sequel Naturals Ltd., Burnaby, BC, is voluntarily recalling the affected products from the marketplace. The CFIA is monitoring the effectiveness of the recall. Affected products: Brand name Common name Size Lot Code Best By Date ---- ----------- ---- -------- ------------ Vega(R) Sport Endurance 50 g 12185C 01-AUG-13 Bar Mocha 12217C 01-SEP-13 22273C* 01-OCT-13 UPC: 8 38766 10730 1 12328C* 01-DEC-13 13064C* 01-APR-14* The corrections for this product are marked by an asterisk (*) Picture of the recalled products' label is available at: http://is.gd/L7KAx8 SOUTH CAROLINA: High Court Remands Ruling in DPPA Violation Suit ---------------------------------------------------------------- In EDWARD F. MARACICH, ET AL., PETITIONERS, v. MICHAEL EUGENE SPEARS, ET AL, NO. 12-25, the petitioners are South Carolina residents whose personal information was obtained by respondents from the South Carolina state motor vehicle department (DMV) and used without their consent to send solicitation letters asking them to join the lawsuits against car dealerships. Petitioner Edward Maracich received one of the letters in March 2007. While his personal information had been disclosed to respondents because he was one of many buyers from a particular dealership, Maracich also happened to be the dealership's director of sales and marketing. Petitioners Martha Weeks and John Tanner received letters from respondents in May 2007. In response to the letter, Tanner called Richard Harpootlian, one of the respondent attorneys listed on the letter. According to Tanner, Harpootlian made an aggressive sales pitch to sign Tanner as a client for the lawsuit without asking about the circumstances of his purchase. In 2009, petitioners filed a putative class action lawsuit in the United States District Court for the District of South Carolina. The complaint alleged that respondents had violated the DPPA by obtaining, disclosing, and using personal information from motor vehicle records for bulk solicitation without the express consent of petitioners and the other class members. Respondents moved to dismiss. The information, they contended, was subject to disclosure because it falls within two statutory exceptions in the DPPA: (b)(1), pertaining to governmental functions, and (b)(4), pertaining to litigation. On cross-motions for summary judgment, the District Court held as a matter of law that respondents' letters were not solicitations and that the use of information fell within the (b)(4) litigation exception. The District Court also found that respondents' use of personal information was permitted under the (b)(1) governmental-function exception. The Court of Appeals for the Fourth Circuit affirmed. Unlike the District Court, it found that the letters were "solicitation[s]" within the meaning of the DPPA; but it held further that when "solicitation is an accepted and expected element of, and is inextricably intertwined with, conduct satisfying the litigation exception under the DPPA, such solicitation is not actionable." The Supreme Court of the United States granted certiorari to address whether the solicitation of clients is a permissible purpose for obtaining personal information from a state DMV under the DPPA's (b)(4) exception. On June 17, 2013, U.S. Supreme Court Justice Kennedy ruled that the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings. Justice Kennedy held that solicitation of prospective clients is not a permissible use "in connection with" litigation or "investigation in anticipation of litigation" under (b)(4) of the DPPA. As a result, the Court of Appeals erred in granting respondents summary judgment without first determining whether the communications had the predominant purpose of solicitation. And since the solicited persons did not give express consent to the disclosure or use of their personal information for this purpose, the (b)(12) exception does not apply. Justice Ginsburg, with whom Justice Scalia, Justice Sotomayor, and Justice Kagan join, dissented. "The Court today exposes lawyers whose conduct meets state ethical requirements to huge civil liability and potential criminal liability. It does so by adding to the DPPA's litigation exception a solicitation bar Congress did not place in that exception. Because the respondent lawyers' use of DMV information fits within the exception delineated in Section 2721(b)(4), I would affirm the Fourth Circuit's judgment," Justice Ginsburg said. A copy of the Supreme Court's June 17, 2013 Opinion is available at http://is.gd/VXn0I4 from Leagle.com. SOUTH CAROLINA: Lawyers Banned From Using Data in DMV ----------------------------------------------------- Annie Youderian at Courthouse News Service reports that lawyers cannot use confidential information from state motor vehicle records to solicit clients, the Supreme Court ruled June 17, 2013, in a 5-4 opinion. The high court reversed the 4th Circuit's ruling for a group of South Carolina lawyers who used data gleaned from Department of Motor Vehicle records to target potential plaintiffs for lawsuits against car dealerships. Citing the "litigation exception" to the Driver's Privacy Protection Act of 1994, trial lawyers retrieved the names, addresses and phone numbers of thousands of car buyers. The buyers filed a federal class action, claiming the mailings they received from lawyers violated their privacy rights. The high court narrowly agreed. "[A]n attorney's solicitation of clients is not a permissible purpose covered by the (b)(4) litigation exception," Justice Anthony Kennedy wrote for the 5-4 majority. The lawyers claimed that the law allowed them to use the protected information "in connection with any civil, criminal, administrative, or arbitral proceeding," including "investigation in anticipation of litigation." But the justices said solicitation "is distinct from other aspects of the legal profession," a view that's backed up "by the words of the statute itself; by formal rules issued by bar organizations and governing boards; and by state statutes and regulations that govern and direct attorneys with reference to their duties in litigation, to their clients, and to the public." "An additional reason to hold that (b)(4) does not permit solicitation of clients is because the exception allows use of the most sensitive kind of information, including medical and disability history and Social Security numbers," Kennedy wrote. "To permit this highly personal information to be used in solicitation is so substantial an intrusion on privacy it must not be assumed, without language more clear and explicit, that Congress intended to exempt attorneys from DPPA liability in this regard." The majority also rejected the attorneys' claim that the litigation exception could be used to solicit new clients for existing litigation. This would have allowed lawyers to file "placeholder" lawsuits to retrieve personal DMV information solely to solicit clients for those actions. "Drawing the line between solicitations related to an existing proceeding and those that are not is not a tenable distinction," Kennedy wrote. "The proper solution is to draw the line at solicitation itself." Justices Clarence Thomas, Stephen Breyer and Samuel Alito, and Chief Justice John Roberts joined the majority opinion. In a dissenting opinion, Justice Ruth Bader Ginsburg said the lawyers' use of the information "fell squarely within the litigation exception." "This court's holding, exposing respondents not only to astronomical liquidated damages, but to criminal fines as well, is scarcely what Congress ordered in enacting the DPPA," she wrote. The dissenting opinion was joined by Justices Antonin Scalia, Sonia Sotomayor and Elena Kagan. STELLARONE CORP: Being Sold to Union for Too Little, Suit Claims ---------------------------------------------------------------- Courthouse News Service reports that directors are selling StellarOne Corp. too cheaply through an unfair process to Union First Market Bankshares Corp. in a 1-for-0.9739 share stock swap valued at $445 million, shareholders claim in Federal Court. TAYLOR FARMS: Recalls Black Forest Ham and Cheese on Pretzel Roll ----------------------------------------------------------------- Taylor Farms New Jersey, Inc., of Swedesboro, New Jersey, is voluntarily recalling a limited quantity of Black Forest Ham and Cheese on a Pretzel Roll with Swiss Cheese and Country Dijon Honey Mustard because they have the potential of containing an undeclared tree nut allergen. People who have severe sensitivity or allergies to tree nuts may run the risk of a serious or life threatening allergic reaction if they consume these products. They do not pose any risk to the general population without tree nut allergies. The sandwiches are sold to a limited number of Wawa stores in New Jersey, Pennsylvania, Delaware, Virginia, and Maryland. The recalled products include 529 units of the Black Forest Ham and Cheese on a Pretzel Roll with Swiss Cheese and Country Dijon Honey Mustard which have the code date of "sell by" 06/23/13 TFNJ 170 5:00 a.m. packaged in an 8.7 oz. plastic container. The affected product was distributed to stores on 6/19/13 and was discovered by a store associate. No illnesses have been reported to date. The Black Forest Ham and Cheese on a Pretzel Roll sandwich includes a country Dijon honey mustard packet that was inadvertently replaced with a green pesto aioli packet containing pine nuts in a limited number of units. This voluntary recall does not apply to any other Wawa products distributed anywhere in the United States. Consumers who have purchased Wawa Black Forest Ham and Cheese on a Pretzel Roll with Swiss Cheese and Country Dijon Honey Mustard are urged to discard the product and contact the Wawa Call Center at 1-800-444-9292 24 hours a day 7 days a week for a full refund. Consumers with questions may contact Taylor Farms New Jersey at 856-294-4181 Monday through Friday between 8:00 a.m. and 4:00 p.m. Eastern Standard Time. TECUMSEH PRODUCTS: Still Faces Canadian Suit Over Lawnmower ----------------------------------------------------------- Tecumseh Products Company continues to face lawsuits alleging, among others, that defendants conspired to fix prices of lawn mowers and lawn mower engines in Canada, according to the company's May 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. On March 19, 2010, Robert Foster and Murray Davenport filed a lawsuit under the Class Proceedings Act in the Ontario Superior Court of Justice against the company and several other defendants (including Sears Canada Inc., Sears Holdings Corporation, John Deere Limited, Platinum Equity, LLC, Briggs & Stratton Corporation, Kawasaki Motors Corp., USA, MTD Products Inc., The Toro Company, American Honda Motor Co., Electrolux Home Products, Inc., Husqvarna Consumer Outdoor Products N.A., Inc. and Kohler Co.), alleging that defendants conspired to fix prices of lawn mowers and lawn mower engines in Canada, to lessen competition in lawn mowers and lawn mower engines in Canada, and to mislabel the horsepower of lawn mower engines and lawn mowers in violation of the Canadian Competition Act, civil conspiracy prohibitions and the Consumer Packaging and Labeling Act. Plaintiffs seek to represent a class of all persons in Canada who purchased, for their own use and not for resale, a lawn mower containing a gas combustible engine of 30 horsepower or less provided that either the lawn mower or the engine contained within the lawn mower was manufactured and/or sold by a defendant or their predecessors between January 1, 1994 and the date of judgment. Plaintiffs seek undetermined money damages, punitive damages, interest, costs and equitable relief. In addition, Snowstorm Acquisition Corporation and Platinum Equity, LLC, the purchasers of Tecumseh Power Company and its subsidiaries and Motoco a.s. in November 2007, have notified the company that they claim indemnification with respect to this lawsuit under the company's Stock Purchase Agreement with them. At this time, we do not have a reasonable estimate of the amount of the company's ultimate liability, if any, or the amount of any potential future settlement, but the amount could be material to the company's financial position, consolidated results of operations and cash flows. On May 3, 2010, a class action was commenced in the Superior Court of the Province of Quebec by Eric Liverman and Sidney Vadish against the company and several other defendants (including those listed in the other action) advancing allegations similar to those outlined in the previous action. Plaintiffs seek undetermined monetary damages, punitive damages, interest, costs, and equitable relief. As stated, Snowstorm Acquisition Corporation and Platinum Equity, LLC, the purchasers of Tecumseh Power Company and its subsidiaries and Motoco a.s. in November 2007, have notified the company that they claim indemnification with respect to this lawsuit under the company's Stock Purchase Agreement with them. TECUMSEH PRODUCTS: Antitrust Claims Remain in Compressor Lawsuit ---------------------------------------------------------------- The U.S. District Court for the Eastern District of Michigan court dismissed majority of the indirect purchaser plaintiffs' remaining claims in a suit against Tecumseh Products Inc. over the sale of compressors, leaving only claims under the antitrust laws and the consumer protection laws, according to the company's May 6, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 31, 2013. "On February 17, 2009, we received a subpoena from the United States Department of Justice Antitrust Division ("DOJ") and a formal request for information from the Secretariat of Economic Law of the Ministry of Justice of Brazil ("SDE") related to investigations by these authorities into possible anti-competitive pricing arrangements among certain manufacturers in the compressor industry. The European Commission began an investigation of the industry on the same day. "We have entered into a conditional amnesty agreement with the DOJ under the Antitrust Division's Corporate Leniency Policy. Pursuant to the agreement, the DOJ has agreed to not bring any criminal prosecution or impose any monetary fines with respect to the investigation against us as long as we, among other things, continue our full cooperation in the investigation. We have received similar conditional immunity from the European Commission and the SDE, and have received or requested immunity or leniency from competition authorities in other jurisdictions. "On December 7, 2011, the European Commission announced it had reached a cartel settlement under which certain of our competitors received fines for the conduct investigated. As a result of our conditional immunity, we were not assessed any fine. "While we have taken steps to avoid fines, penalties and other sanctions as the result of proceedings brought by regulatory authorities, the amnesty grants do not extend to civil actions brought by private plaintiffs. The public disclosure of these investigations has resulted in class action lawsuits filed in Canada and numerous class action lawsuits filed in the United States, including by both direct and indirect purchaser groups. "All of the U.S. actions have been transferred to the U.S. District Court for the Eastern District of Michigan for coordinated or consolidated pretrial proceedings under Multidistrict Litigation ("MDL") procedures. "Tecumseh Products Company, Tecumseh Compressor Company, Tecumseh do Brasil, Ltda, and Tecumseh do Brasil U.S.A. LLC entered into a settlement agreement with the direct-purchaser plaintiffs on June 24, 2010 to resolve claims in the action in order to avoid the costs and distraction of this ongoing class action litigation. "On June 13, 2011, the Court issued an order denying without prejudice a motion for preliminary approval of our proposed settlement with the direct purchaser plaintiffs because the time frame and products covered by the proposed settlement class were inconsistent with the Court's rulings of the same date granting, in part, a motion by the other defendants to dismiss claims by the direct purchaser plaintiffs. "The direct purchaser plaintiffs subsequently filed a Second Amended Master Complaint to reflect the court's rulings on the motion to dismiss which allowed them to cover fractional compressors, or compressors of less than one horsepower, used for refrigeration purposes (but excluding those used for air conditioning) purchased from February 25, 2005 to December 31, 2008 (the "Covered Products"). "On October 15, 2012 we entered into a new settlement agreement with the direct-purchaser plaintiffs (the "Settlement Agreement"), which must be approved by the court. The Settlement Agreement was made by and between us and our subsidiaries and affiliates, and plaintiffs, both individually and on behalf of a class of persons who purchased the Covered Products in the United States, its territories and possessions, directly from a defendant. "Under the terms of the Settlement Agreement, in exchange for plaintiffs' full release of all U.S. direct-purchaser claims against us relating to refrigeration compressors, we agreed to pay a settlement amount of $7.0 million and, in addition, agreed to pay up to $150,000 for notice and administrative costs associated with administering the settlement. These costs were recorded as an expense in the second quarter ended June 30, 2010 (and paid in the third quarter of 2010) in the line item captioned "Impairments, restructuring charges, and other items". Under the original agreement, administrative costs were $250,000; however upon signing the new settlement, the difference was refunded to Tecumseh Products Company. "For the remaining indirect purchaser class actions in the U.S., a consolidated amended complaint was filed on June 30, 2010, and we filed a motion to dismiss the indirect purchaser class action on August 30, 2010. On June 7, 2012, the court partially granted a motion to dismiss the consolidated amended complaint with regard to claims for purchasers in several states in which the complaint identified no named plaintiff. On April 9, 2013, the court dismissed the majority of the indirect purchaser plaintiffs' remaining claims leaving only claims under the antitrust laws of North Carolina and Minnesota and the consumer protection laws of California, Massachusetts, New Mexico and Rhode Island. In Canada, the class actions are still in a preliminary stage. "Persons who engage in price-fixing in violation of U.S. antitrust law generally are jointly and severally liable to private claimants for three times the actual damages caused by the joint conduct. As a conditional amnesty recipient, however, our civil liability will be limited pursuant to the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, as amended (ACPERA). As long as we continue to cooperate with the civil claimants and comply with the requirements of ACPERA, we will be liable only for actual, as opposed to treble, damages and will not be jointly and severally liable for claims against other participants in the alleged anticompetitive conduct being investigated." TOWNSEND FARMS: Hepa A Victims in San Diego Increase ---------------------------------------------------- Michael Chen, writing for 10News.com, reports that the number of San Diegans sickened by a frozen berries product bought at Costco is growing, along with the legal fallout. San Diego County health officials say eight people have contracted Hepatitis A after eating the berries. In all, more than 50 people in seven states have been sickened in the outbreak. In mid-May, Jake Petersen made a trip to Costco and bought a $10 package of organic frozen berries. He made smoothies almost daily for the next two weeks. When he heard about the Hepatitis A outbreak, he went right for his freezer. "To my horror, it was the Townsend Farms bag," he said. Mr. Petersen, who lives in Irvine, got a sinking feeling. "It's kind of like watching a car crash happen," he said. "You can't really help it. You've already eaten it." Because Hepatitis A has an incubation period -- as short as two weeks -- Mr. Petersen got a quick-acting, immune-boosting, immunoglobulin shot and plans to get the vaccine later. He said the total bill was probably $350 to $400. Mr. Petersen is part of a new class-action suit filed by San Diego attorney Frederic Gordon against Townsend Farms. The suit is filed on behalf of anyone who ate those berries and had to get medical care to prevent sickness. Mr. Gordon has filed a separate lawsuit for a local woman who got sick. In San Diego alone, 36,000 bags of berries have been sold since January. "When suppliers are sued on a class-action basis, they take note," said Mr. Gordon. "They take note by changing their policies and procedures." Pomegranate seeds from Turkey are being looked at as a possible source of the outbreak. Mr. Gordon said legal pressures are sometimes required to make sure foreign exporters abide by testing and oversight programs. "Anytime we're importing food products from around the world, they really need to take testing more seriously and looking into these types of things," said Mr. Petersen. Mr. Petersen has insurance. For those who do not, county health officials say free vaccinations and treatments are available. The health department says they are receiving almost 100 calls a day on the topic of the frozen berries. TOYOTA MOTOR: Recalls 242,000 Prius & Lexus Hybrid Vehicles ----------------------------------------------------------- Toyota Motor Corp. on June 5 announced a recall of 242,000 Prius and Lexus hybrid vehicles due to braking system defects. Merchant Law Group LLP has been pursuing Canada-wide class action lawsuits against Toyota since early 2010 seeking financial compensation and safety repairs for Prius/Lexus hybrid vehicles owners due to problems with their braking systems. "[The] recall appears to be a good initial step in terms of Toyota recognizing the safety concerns of certain Prius and Lexus braking systems but there are many issues that will still need to be addressed through our class action lawsuits, including compensation for Prius and Lexus vehicle owners." stated Tony Merchant, Q.C. earlier on June 5. For more information on the Toyota Prius and Lexus Class Action, please visit: https://www.merchantlaw.com/classactions/toyotabrakes.php Merchant Law Group LLP is a Canadian class action firm, with 12 offices across Canada from Montreal to Victoria. UBIQUITI NETWORKS: July 9 Oral Arguments in Securities Suit ----------------------------------------------------------- Oral arguments on Ubiquiti Networks, Inc.'s motion to dismiss a consolidated securities class action lawsuit have been scheduled for July 9, 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. Beginning on September 7, 2012, two shareholder class action complaints were filed against the Company, certain of its officers and directors and the underwriters of the Company's initial public offering in the United States District Court for the Northern District of California. On January 30, 2013, the plaintiffs filed an Amended Consolidated Complaint, which alleges claims under the Securities Act of 1933, the Securities Exchange Act of 1934 and SEC Rule 10b-5 on behalf of a purported class of those who purchased the Company's common stock between October 14, 2011, and August 9, 2012, and/or acquired the Company's stock pursuant to or traceable to the registration statement for the initial public offering. The Amended Consolidated Complaint alleges that the defendants violated the federal securities laws by issuing false or misleading statements regarding the sale of counterfeit Company products. The consolidated complaint seeks, among other things, damages and interest, rescission, and attorneys' fees and costs. On March 26, 2013, the Company filed a motion to dismiss the complaint. On April 30, 2013, the plaintiffs filed an opposition to the Company's motion to dismiss. A date for oral arguments for the motion to dismiss has been scheduled for July 9, 2013. The Company believes that the allegations in the consolidated complaint are without merit and intend to vigorously contest the litigation. However, there can be no assurance that the Company will be successful in its defense. Because the case is at a very early stage, the Company cannot currently estimate the loss or the range of possible losses the Company may experience in connection with this litigation. Ubiquiti Networks, Inc., was incorporated in California in 2003 as Pera Networks, Inc. In 2005 the Company changed its name to Ubiquiti Networks, Inc. and commenced its current operations. In June 2010, the Company was re-incorporated in Delaware. Ubiquiti is a product driven company that leverages innovative proprietary technologies to deliver networking solutions to both startup and established network operators and service providers. The Company is headquartered in San Jose, California. UNCLE T: Recalls Taisun Pineapple Cakes --------------------------------------- Starting date: June 20, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Sulphites Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Uncle T Food Ltd. Distribution: Alberta, British Columbia Extent of the product distribution: Retail CFIA reference number: 8051 Affected products: Brand name Common name Size Code(s) on product ---- ----------- ---- ------------------ Taisun Taiwan pineapple cake 250 g Up to and including EXP2014.02.19 UPC: 4 710095 805164 UNITED STATES: Plaintiffs Slam Gov't Stay Motion in Suit v. NSA --------------------------------------------------------------- Jack Bouboushian at Courthouse News Service reports that citizens trying to dismantle the National Security Administration's wiretapping program denounced the government's motion for a stay as the "latest attempt to delay public scrutiny, judicial oversight, and justice." The NSA had asked a San Francisco federal judge on June 7, 2013, to defer ruling on cross-motions for summary judgment in the 7-year-old case challenging an NSA wiretapping program. The government said that it needed time to consider its position in light of a recent revelation by The Guardian that the NSA had forced Verizon to hand over "all call detail records or 'telephony metadata'" of U.S. customers placing international domestic and local calls. "In light of these developments, the government defendants request that the court defer further consideration of the pending motions and grant the government time to consider the effect on the pending motions of the government's decision to declassify certain information, and to consult with plaintiffs concerning the matter," the motion stated. The plaintiffs, a class of phone service customers led by Carolyn Jewel, claim that the NSA's implementation of the Terrorist Surveillance Program, signed into law after the Sept. 11, 2011 terrorist attacks, violates the Constitution and the Foreign Intelligence Surveillance Act. In their opposition to the government's request for a stay on June 14, 2013, the plaintiffs slammed the maneuver as one that seeks to avoid judicial review. "For over seven years during the pendency of this case, the government has engaged in a massive, indiscriminate domestic spying dragnet, sucking in billions of telephone and internet communications of ordinary Americans," the motion states. "Not just metadata, but Americans' actual 'communications on fiber cables and infrastructure as data flows past' -- their phone calls and email. The government used every possible tactic to delay this case, filing state secrets motions to dismiss not once, not twice, but now three times. Even as it violated the law for seven years, the government successfully prevented any court review of this breathtaking scheme." The median time in the Northern District of California from filing to close of a case is 6.4 months, but this case has not even approached resolution after 84.9 months of litigation, the plaintiffs said. "President Obama stated he 'welcome[s] this debate' about NSA surveillance of millions of Americans," they added. "The place to debate the legality and constitutionality of government action is here, in a court of law. If the president truly welcomes the debate, the president's Justice Department should no longer obstruct this case. It should no longer obstruct legal review of the NSA's conduct. It should not assert alleged 'state secrets' featured on the covers of hundreds of newspapers around the world. The government's latest attempt to delay public scrutiny, judicial oversight, and justice should be soundly rejected." Ilann Maazel, Esq., and Matthew D. Brinckerhoff, Esq. -- imaazel@ecbalaw.com and mbrinckerhoff@ecbalaw.com -- at Emery Celli Brinckerhoff & Abady LLP in Manhattan signed the motion. URS CORPORATION: WGI Ohio Wins Favorable Ruling in "Levee" Suit --------------------------------------------------------------- The United States District Court for the Eastern District of Louisiana ruled in favor of Washington Group International, Inc., an Ohio company (WGI Ohio), a wholly owned subsidiary of URS Corporation, in a suit in relation to its work building hurricane protection levees and floodwalls in the wake of Hurricane Katrina. Plaintiffs failed to prove that WGI Ohio's or the Army Corps of Engineers' actions caused the failure of the Industrial Canal floodwall during Hurricane Katrina, according to URS's May 7, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended March 29, 2013. From July 1999 through May 2005, Washington Group International, Inc., a wholly owned subsidiary acquired by the company on November 15, 2007, performed demolition, site preparation, and environmental remediation services for the U.S. Army Corps of Engineers on the east bank of the Inner Harbor Navigation Canal (the "Industrial Canal") in New Orleans, Louisiana. On August 29, 2005, Hurricane Katrina devastated New Orleans. The storm surge created by the hurricane overtopped the Industrial Canal levee and floodwall, flooding the Lower Ninth Ward and other parts of the city. Fifty-nine personal injury and property damage class action lawsuits were filed in Louisiana State and federal court against several defendants, including WGI Ohio, seeking $200.0 billion in damages plus attorneys' fees and costs. Plaintiffs are residents and property owners who claim to have incurred damages from the breach and failure of the hurricane protection levees and floodwalls in the wake of Hurricane Katrina. All 59 lawsuits were pleaded as class actions but none have yet been certified as class actions. Along with WGI Ohio, the U.S. Army Corps of Engineers, the Board for the Orleans Levee District, and its insurer, St. Paul Fire and Marine Insurance Company were also named as defendants. At this time WGI Ohio and the Army Corps of Engineers are the remaining defendants. These 59 lawsuits, along with other hurricane-related cases not involving WGI Ohio, were consolidated in the United States District Court for the Eastern District of Louisiana ("District Court"). Plaintiffs allege that defendants were negligent in their design, construction and/or maintenance of the New Orleans levees. Specifically, as to WGI Ohio, plaintiffs allege that work WGI Ohio performed adjacent to the Industrial Canal damaged the levee and floodwall, causing or contributing to breaches and flooding. WGI Ohio did not design, construct, repair or maintain any of the levees or the floodwalls that failed during or after Hurricane Katrina. Rather, WGI Ohio performed work adjacent to the Industrial Canal as a contractor for the federal government. WGI Ohio filed a motion for summary judgment, seeking dismissal on grounds that government contractors are immune from liability. On December 15, 2008, the District Court granted WGI Ohio's motion for summary judgment, but several plaintiffs appealed that decision to the United States Fifth Circuit Court of Appeals on April 27, 2009. On September 14, 2010, the Court of Appeals reversed the District Court's summary judgment decision and WGI Ohio's dismissal, and remanded the case back to the District Court for further litigation. On August 1, 2011, the District Court decided that the government contractor immunity defense would not be available to WGI Ohio at trial, but would be an issue for appeal. Five of the cases were tried in District Court from September 12, 2012 through October 3, 2012. On April 12, 2013, the District Court ruled in favor of WGI Ohio and the Army Corps of Engineers finding that the five plaintiffs failed to prove that WGI Ohio's or the Army Corps of Engineers' actions caused the failure of the Industrial Canal floodwall during Hurricane Katrina. The plaintiffs will have the right to appeal the decision to the Fifth Circuit Court of Appeals. USEC INC: Former Plant Employees Appeal Dismissal of Suit --------------------------------------------------------- Plaintiffs in a labor lawsuit filed against USEC Inc. in the United States District Court for the Southern District of Ohio, Eastern Division are appealing the dismissal of the suit, 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 June 27, 2011, a complaint was filed in the United States District Court for the Southern District of Ohio, Eastern Division, against USEC by a former Portsmouth gas diffusion plant employee claiming that USEC owes severance benefits to him and other similarly situated employees that have transitioned or will transition to the DOE D&D contractor. The plaintiff amended its complaint on August 31, 2011 and February 10, 2012, among other things, to limit the purported class of similarly situated employees to salaried employees at the Portsmouth site who transitioned to the D&D contractor and are allegedly eligible for or owed benefits. On October 11, 2012, the United States District Court granted USEC's motion to dismiss the complaint and dismissed Plaintiffs' motion for class certification as moot. The plaintiffs filed an appeal on January 18, 2013. VENTRUS BIOSCIENCES: Faces "Davison" Class Suit in New York ----------------------------------------------------------- Ventrus BioSciences Inc. is facing a class action lawsuit brought by Ted Davison, et al., 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 purported class action lawsuit was filed in the U.S. District Court for the Southern District of New York against the Company, two of its executive officers and the lead underwriter of its initial public offering: Ted Davison, William Gould and Ray Lenci, Individually and on Behalf of All Others Similarly Situated, Plaintiffs v. Ventrus Biosciences, Inc., et al., 13CIV 1319. The complaint generally alleges that, during the class period between December 17, 2010, and June 25, 2012, the Company and its two executive officers violated Sections 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 and the executive officers and the lead underwriter violated Section 20(a) of the Exchange Act in making various statements related to the Company's product, iferanserin (VEN 309), a topical treatment for symptomatic hemorrhoids, including but not limited to the market for the product, the potential competitors, and the results of clinical trials. The complaint seeks unspecified damages, interest, attorneys' fees, and other costs. The Company and its officers believe that all of the claims in this lawsuit are without merit and the Company intends to vigorously defend against these claims, but is unable to predict the outcome or reasonably estimate a range of possible loss. Ventrus BioSciences Inc. is a specialty pharmaceutical company currently focused on the development and commercialization of late-stage prescription drugs addressing gastrointestinal problems, specifically anal disorders. Ventrus was incorporated in Delaware in October 2005 and is headquartered in New York. WAL-MART STORES: Seeks Dismissal of Gas Discounts Class Action -------------------------------------------------------------- Carolina Bolado, writing for Law360, reports that Wal-Mart Stores Inc. and gas station operator Murphy Oil USA Inc. on May 31 asked a Florida state court to toss a putative class action claiming that they failed to provide advertised discounts to customers on gasoline purchases, saying that a review of the sale records shows that every eligible customer received the discount. WARD MANUFACTURING: Faces Class Action Over Defective CSST ---------------------------------------------------------- John D. Oravecz, writing for Pittsburgh Tribune-Review, reports that during a June 2007 thunderstorm, a lightning strike energized a natural gas line beneath the first floor of Terence and Judith Tincher's home in Chester, Pa. A resulting electrical arc created a hole in the piping and ignited natural gas, the Tinchers allege in court papers. Their home was a total loss. After an eight-day trial in October 2010, a jury found corrugated stainless steel tubing (CSST) used in the gas line to be defective. Jurors awarded a $1 million judgment against the manufacturer. Similar incidents nationwide prompted the filing of two class- action lawsuits on June 4 against manufacturers of corrugated stainless steel tubing on behalf of thousands of Pennsylvania home and business owners. "Thousands of homes in Pennsylvania are at risk of fire because of CSST that has not been properly grounded," said Rob Peirce, a Downtown attorney representing the plaintiffs. "Even with proper grounding, experts do not agree that the risk of arcing is completely eliminated." Before corrugated stainless steel tubing became popular about a decade ago, rigid iron pipe was used to supply natural gas and propane in homes and businesses. Mr. Pierce said it was used without incident and estimated the cost to replace CSST with iron pipe at more than $3,000 per home. The ultrathin flexible tubing is routed through homes and buildings in lengths that avoid joints required by rigid pipe. Its ease of use and lower total cost of installation has changed the business, the lawsuits said. The tubing is manufactured by about 10 companies in the United States, and has been installed in more than 5 million homes, according to industry reports. Regis McQuaide, owner of Master Remodelers Inc. in Castle Shannon, said CSST is being used more by remodelers and builders because of its low cost and fast installation. But he wasn't aware of problems with the product. One lawsuit was filed in Lawrence County Common Pleas Court by Pipsqueaks Child Care Center of Ellwood City against Ward Manufacturing Inc. of Blossburg, Pa., a manufacturer of corrugated stainless steel tubing sold under the brand name Wardflex. A second lawsuit was filed in federal court in Pittsburgh by Michael Hower of Clinton, Armstrong County, who has corrugated stainless steel tubing installed in his home, against Titeflex Corp. of Springfield, Mass., a manufacturer that is part of Flex- Tek Group in Greenwood, S.C. Shan Hood, vice president at Flex-Tek said in recent years Titeflex has received a number of claims for damage allegedly caused by lightning strikes. "Titeflex believes that its products are a safe and effective means of delivering natural and propane gas when installed in accordance with the manufacturer's instructions and all local and national codes." The lawsuit is without merit, he said. Bill Williams, a spokesman for Ward Manufacturing, did not immediately return calls for comment. The lawsuits allege that both companies failed to properly test their product's resistance to lightning strikes, and that both defendants developed new and improved versions of their products with advanced lightning protection after problems surfaced. From 1996 to August 2011, 141 fires involving lightning and corrugated stainless steel tubing were reported in the United States, according to a report by the Fire Protection Foundation of Quincy, Mass., cited in the lawsuits. There have been other class-action lawsuits nationwide. One in Arkansas in 2004 against Titeflex and other manufacturers was settled with Titeflex agreeing to pay for installation of a lightning protection system or grounding of its product, according to the lawsuit. Corrugated stainless steel tubing was introduced in the United States in 1989. In 2003, the International Association of Plumbing and Mechanical Officials in Ontario, Calif., approved it for its Uniform Plumbing Code. The product was developed in Japan in the early 1980s to withstand damage from earthquakes, the lawsuits say. WARNER CHAPPELL: Faces Class Action Over Unlawful Licensing Fees ---------------------------------------------------------------- Robert Kahn at Courthouse News Service reports that Warner/Chappell Music has "extracted millions of dollars in unlawful licensing fees" for the 120-year-old "Happy Birthday" song, which is in the public domain, Good Morning to You Productions claims in a federal class action. There is no question that the song is in the public domain; the only question is how Warner/Chappell has bullied people into paying for it, Good Morning to You says in the complaint. Good Morning is making a documentary about the Happy Birthday song, which, not surprisingly, will include the tune. It claims it succumbed to Warner/Chappell's demand for a $1,500 licensing fee, but balked upon receiving a second letter from Warner/Chappell, warning that it could face a $150,000 statutory penalty for copyright infringement. The complaint states: "More than 120 years after the melody to which the simple lyrics of 'Happy Birthday to You' is set was first published, defendant Warner/Chappell boldly, but wrongfully and unlawfully, insists that it owns the copyright to 'Happy Birthday to You,' and with that copyright the exclusive right to authorize the song's reproduction, distribution, and public performances pursuant to federal copyright law. Defendant Warner/Chappell either has silenced those wishing to record or perform 'Happy Birthday to You' or has extracted millions of dollars in unlawful licensing fees from those unwilling or unable to challenge its ownership claims. "Irrefutable documentary evidence, some dating back to 1893, shows that the copyright to 'Happy Birthday to You,' if there ever was a valid copyright to any part of the song, expired no later than 1921 and that if defendant Warner/Chappell owns any rights to 'Happy Birthday to You,' those rights are limited to the extremely narrow right to reproduce and distribute specific piano arrangements for the song published in 1935. Significantly, no court has ever adjudicated the validity or scope of the defendant's claimed interest in 'Happy Birthday to You,' nor in the song's melody or lyrics, which are themselves independent works. "Plaintiff GMTY, on behalf of itself and all others similarly situated, seeks a declaration that 'Happy Birthday to You' is dedicated to public use and is in the public domain as well as monetary damages and restitution of all the unlawful licensing fees that defendant Warner/Chappell improperly collected from GMTY and all other class members." Good Morning, based in New York City, claims that it paid Warner/Chappell $1,500 in April for a "synchronization license agreement" for "Happy Birthday." On its website, checked this morning, Warner/Chappell claims to have copyrights to more than 1 million tunes. "The Warner/Chappell Music catalog includes standards such as 'Happy Birthday To You' . . ." the company says in its "About Us" web page. There is no mention of Good Morning's lawsuit on the Warner/Chappell "News" web page. Good Morning's 28-page lawsuit includes a detailed history of the origins of the Happy Birthday song, from which the following summary is taken. Sometime before 1893, sisters Mildred and Patty Hill wrote words and music for 73 songs, composed or arranged by Mildred, with words by Patty. They sold or assigned their rights to it to Clayton F. Summy on Feb. 1, 1893, for 10 percent of retail sales. The songs included "Good Morning to All." Summy published the songbook that year under the title "Song Stories for the Kindergarten," and filed a copyright application on Oct. 16, 1893, in which he claimed to own the copyright, but not to be the author. The lyrics to "Good Morning to All" were set to the melody now known as "Happy Birthday." The lyrics were: Good morning to you Good morning to you Good morning dear children Good morning to all. The "Happy Birthday" lyrics were not published in the songbook. Summy republished the songbook twice before 1900, never with the Happy Birthday lyrics. The complaint states: "Even though the lyrics to 'Happy Birthday to You' and the song 'Happy Birthday to You' had not been fixed in a tangible medium of expression, the public began singing 'Happy Birthday to You' no later than the early 1900s. "For example, in the January 1901 edition of 'Inland Educator' and 'Indiana School Journal,' the article entitled 'First Grade Opening Exercises' described children singing the words 'happy birthday to you,' but did not print the song's lyrics or melody." Then in 1907, according to the complaint: "Fleming H. Revell Co. ('Revell') published the book 'Tell Me a True Story,' arranged by Mary Stewart, which instructed readers to: "Sing: 'Good-bye to you, good-bye to you, good-bye dear children, good?bye to you.' Also: 'Good-bye dear teacher.' (From 'Song Stories for the Sunday-School,' published by Summy & Co.) "Sing: 'Happy Birthday to You.' (Music same as 'Good-bye to You.')" Finally, the complaint states: "Upon information and belief, the lyrics to 'Happy Birthday to You' (without the sheet music for the melody) were first published in 1911 by the Board of Sunday Schools of the Methodist Episcopal Church ('Board of Sunday Schools') in 'The Elementary Worker and His Work,' by Alice Jacobs and Ermina Chester Lincoln, as follows: "Happy birthday to you, Happy birthday to you, Happy birthday, dear John, Happy birthday to you. (Sung to the same tune as the 'Good Morning') "[NOTE: The songs and exercises referred to in this program may be found in these books: . . . 'Song Stories for the Sunday School,' by Patty Hill.] "On or about January 6, 1912, the Board of Sunday Schools filed a copyright application (Reg. No. A303752) with the Copyright Office for 'The Elementary Worker and His Work.'" The copyrights to Summy's song books expired by the mid 1920s and he did not renew them. "In or around March 1924, the sheet music (with accompanying lyrics) to 'Happy Birthday to You' was in a songbook titled Harvest Hymns, published, compiled, and edited by Robert H. Coleman ('Coleman'). Upon information and belief, 'Harvest Hymns' was the first time the melody and lyrics of 'Happy Birthday to You' were published together. "Coleman did not claim authorship of the song entitled 'Good Morning to You' or the lyrics to 'Happy Birthday to You.' Although 'Harvest Hymns' attributed authorship or identified the copyrights to many of the works included in the book, it did not attribute authorship or identify any copyright for 'Good Morning to You' or 'Happy Birthday to You.' . . . "The sheet music (with accompanying lyrics) to 'Happy Birthday to You' was again published in 1928 in the compilation 'Children's Praise and Worship,' compiled and edited by A.L. Byers, Bessie L. Byrum, and Anna E. Koglin ('Byers, Byrum & Koglin'). Upon information and belief, 'Children's Praise and Worship' was the first time the song was published under the title 'Happy Birthday to You.' "On or about April 7, 1928, Gospel Trumpet Co. ('Gospel') filed a copyright application (Reg. No. A1068883) with the Copyright Office for 'Children's Praise and Worship.' "'Children's Praise and Worship' attributed authorship or identified the copyrights to many of the works included in the book. Significantly, it did not attribute authorship or identify any copyright for the song 'Happy Birthday to You.'" There was no litigation involving the Happy Birthday song until 1934, when Jessica Hill, Mildred and Patty's sister, sued Broadway show producer Sam Harris. Harris in 1933 produced the Broadway show "As Thousands Cheer," with music and lyrics by Irving Berlin. The show included the tune "Happy Birthday." Hill also sued the Federal Broadcasting Corp. in 1935. Both claims alleged infringement of the 1893 and 1896 copyrights of "Good Morning to All." Summy, with a reconstituted corporation, applied for a copyright for a republished musical composition with new copyright matter on Dec. 29, 1934, for the song "Happy Birthday." We are not yet halfway through the 28-page complaint. Suffice it to say that more litigation ensued, from more parities, including Hill Foundation v Summy Co. III, in 1942, seeking an accounting and royalties; Hill Foundation v Postal Telegraph-Cable Co., in 1943, for copyright on "Good Morning to All." There has never been a judicial determination on the copyright of "Good Morning to All," according to the complaint. But Summy Co. III, renamed as Summy-Birchard Co., filed more copyright applications and renewals for "Happy Birthday," and "Good Morning to All," though none of them claimed authorship of the tunes. Summy-Birchard Co. was renamed Birch Tree Ltd. in the 1970s, and Warner/Chappell bought it in 1998. This brings us to today, and Good Morning's lawsuit. It states: "According to a 1999 press release by ASCAP, Happy Birthday to You was the most popular song of the 20th Century. "The 1998 edition of the 'Guinness Book of World Records' identified 'Happy Birthday to You' as the most recognized song in the English language. "Defendant Warner/Chappell currently claims it owns the exclusive copyright to 'Happy Birthday to You' based on the piano arrangements that Summy Co. III published in 1935. "Plaintiff GMTY is producing a documentary movie, tentatively titled 'Happy Birthday,' about the song 'Happy Birthday to You.' "In one of the proposed scenes to be included in 'Happy Birthday,' the song 'Happy Birthday to You' is to be sung. "During the production process, plaintiff GMTY learned that defendant Warner/Chappell claimed exclusive copyright ownership to 'Happy Birthday to You.' Accordingly, in September 2012, plaintiff requested a quote from Warner/Chappell for a synchronization license to use 'Happy Birthday to You' from Warner/Chappell's website. "On or about September 18, 2012, defendant Warner/Chappell responded to plaintiff GMTY's inquiry by demanding that GMTY pay it the sum of $1,500 and enter into a synchronization license agreement to use 'Happy Birthday to You.' "On or about March 12, 2013, defendant Warner/Chappell again contacted plaintiff GMTY and insisted that GMTY was not authorized to use 'Happy Birthday to You' unless it paid the licensing fee of $1,500 and entered into the synchronization license that Warner/Chappell demanded. "Because defendant Warner/Chappell notified plaintiff GMTY that it claimed exclusive copyright ownership of 'Happy Birthday to You,' GMTY faced a statutory penalty of $150,000 under the Copyright Act if it used the song without Warner/Chappell's permission and Warner/Chappell, in fact, owned the copyright that it claimed. "Faced with a threat of substantial penalties for copyright infringement, on or about March 26, 2013, plaintiff GMTY was forced to and did pay defendant Warner/Chappell the sum of $1,500 for a synchronization license and, on or about April 24, 2013, GMTY was forced to and did enter into the synchronization license agreement to use 'Happy Birthday to You.'" Warner/Chappell's demand, however, is bogus, Good Morning claims. It seeks declaratory judgment that "Happy Birthday" is in the public domain, class certification, it wants its money back, an accounting, restitution of money for the class, damages for unfair competition, and costs. It is represented by Randall Newman, Esq. -- RSN@RANDALLNEWMAN.NET -- with Wolf Haldenstein Adler Freeman & Herz. WARNER MUSIC: Faces Class Action Over Giving Minimum Wages ---------------------------------------------------------- Courthouse News Service reports that Warner Music Group and Atlantic Recording Corp. stiffed interns for minimum wages and overtime, a class action claims in New York County Supreme Court. WASHINGTON POST: Colorado Court Junks Pension Fund's Lawsuit ------------------------------------------------------------ The U.S. District Court for the District of Columbia dismissed a securities case filed against The Washington Post Company by the Plumbers Local #200 Pension Fund, 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. A purported class-action complaint was filed against the Company, Donald E. Graham and Hal S. Jones on October 28, 2010, in the U.S. District Court for the District of Columbia, by the Plumbers Local #200 Pension Fund. The complaint alleged that the Company and certain of its officers made materially false and misleading statements, or failed to disclose material facts relating to KHE, in violation of the U.S. Federal securities laws. The complaint sought damages, attorneys' fees, costs and equitable/injunctive relief. The Company moved to dismiss the complaint, and on December 23, 2011, the court granted the Company's motion and dismissed the case with prejudice. On January 25, 2012, the Plaintiff filed a motion seeking leave to amend or alter that final judgment, which the court granted in part on March 13, 2012 by allowing the Plaintiff to file an amended complaint. On May 11, 2012, the Company moved to dismiss the amended complaint. On March 19, 2013, the court granted the Company's motion and dismissed the case. * Counsel Trims N.J. Class Action Claims v. Flood Insurers ---------------------------------------------------------- HarrisMartin reports that conceding it may be difficult to proceed with his case as a class action, the attorney who sued several insurers for wrongfully denying flood claims following Hurricane Irene and Superstorm Sandy has agreed to dismiss certain claims that were the subject of a pending motion to dismiss filed recently by defendants. In a May 21 letter to the judge presiding over the case in U.S. District Court for the District of New Jersey, attorney Jeffrey Bronster indicated the decision was based on conversations with potential class members. Associated Law Firms Jeffrey A. Bronster PC McMahon, Martine & Gallagher Mintz, Levin, Cohn, Ferris, Glovsky and Popeo Stradley, Ronon, Stevens & Young Sutherland, Asbill & Brennan ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. 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