/raid1/www/Hosts/bankrupt/CAR_Public/130717.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, July 17, 2013, Vol. 15, No. 139
Headlines
ADVENTIST HEALTH: Judge Tosses Medical Record Breach Class Action
ALASKA: Union Files Class Action Over Office Space Standards
AMERICAN EXPRESS: McGuireWoods Discusses Supreme Court Ruling
APPLE INC: Faces Trial to Set E-Book Antitrust Suit Damages
APPLE INC: E-Books Ruling Strengthens Consumer Class-Action Case
ARMS LTD: Maltese Nationals File Discrimination Class Action
AU OPTRONICS: Dechert LLP Discusses Supreme Court's CAFA Ruling
AURCANA CORP: Says Class Action Over Stock Plunge "Baseless"
BANK OF AMERICA: Hagens Berman Files Class Action Over HAMP
BEEBE MEDICAL: Bond Ratings Improve After Class Action Settlement
BEST BUY: Awaits Ruling on Bid to Dismiss Minn. Securities Suit
BEST BUY: In Talks to Settle LCD Action as July 22 Trial Looms
BP PLC: Medical Benefits Under Settlement Face Objections
CENTURYLINK: Faces Investor Class Actions Over Share Repurchase
CHINA CENTURY: Oct. 7 Class Action Settlement Fairness Hearing Set
CHRYSLER GROUP: Recalls 500,000 Cars Over Head Restraint Defect
CHRYSLER GROUP: Recalls 2013 Model Minivans Over Air Bag Defect
COOPER COMPANIES: Court Dismissed Securities Class Suit in May
E-SPORTS ENTERTAINMENT: Fires Employee Over Bitcoin Malware
FORD MOTOR: Regulators Close Probe on Defective Engine Cables
FORD MOTOR: Statute of Limitations Important to Class Actions
FOX SEARCHLIGHT: Intern's Attorney Seeks Dismissal of Stay Request
FRESENIUS KABI: Recalls Benztropine Mesylate Injection Vials
GRUMA CORP: Judge Stays Food Label Class Action for Six Months
GRUPO AVAL: Still Defends Suits Over Pension and Severance Funds
HALLIBURTON CO: Asks High Court to Review ERISA Class Action
HOVNANIAN ENTERPRISES: Expects Ruling on Appeal in Coming Months
HYUNDAI MOTOR: Recalls 5,200 Azera Sedans Over Airbag Flaw
HUNTINGTON BANK: Sued for Closing Arab American Accounts
INDIANA: July 25 Hearing Set for License Fee Suit v. BMV
INTUIT INC: Has Yet to Submit TurboTax-Related Suits' Settlement
LEGALZOOM.COM INC: Court Rejects Application Fee Class Action
LG ELECTRONICS: Judge Rejects Expert's Testimony in Washer Suit
LINNCO LLC: Milberg Files Securities Class Action Over IPO
LINNCO LLC: Wohl & Fruchter Files Class Action in New York
LOCKHEED MARTIN: Securities Class Action Witnesses Feel Squeeze
MERCK & CO: Recalls Hepatitis B Vaccine Recombivax HB
MONSANTO CO: Vows to Defend Suits Over Genetically Modified Wheat
MPG OFFICE: Preferred Shareholders File Class Action in Maryland
MPG OFFICE: Enters Into Class Action Settlement MoU
NAT'L FOOTBALL: Super Bowl Class Action Denial Not End of Dispute
NOVA SCOTIA HOME: Province's Lawyer Says Class Action Unsuitable
NOVA SCOTIA HOME: Province's Letters Admitted as Evidence
PACIFIC SUNWEAR: "Pfeiffer" Class Suit in Discovery Phase
PACIFIC SUNWEAR: "Beeney" Class Suit in Discovery Phase
PEPSICO INC: Tropicana Loses Bid to Dismiss Labeling Class Action
PETSMART INC: "Adkins" Class Suit Remains Pending in Illinois
PETSMART INC: Continues to Defend "Moore" Suit in California
PETSMART INC: Defends "McKee" Collective Action in Delaware
PETSMART INC: Defends "Miller" Suit in Eastern District of Calif.
PETSMART INC: Defends "Negrete" Suit Brought in California
PETSMART INC: Bid to Amend "Pace" Complaint Remains Pending
PILOT FLYING J: Wright Transportation Files Class Action
PILOT FLYING J: New Hampshire Truck Driver Files Class Action
PLEASANT VALLEY, CA: Prison Faces Class Action Over Valley Fever
RADIOSHACK CORP: $1MM From Settlement Goes to Lawyers' Fees
SAFEWARE INC: Faces Product Liability Suit Over Safety Mask Defect
SAG-AFTRA: Judge Grants Summary Judgment to Settle Class Action
SAMSUNG TELECOMMUNICATIONS: Judge Halts Galaxy Defect Class Action
SANDERSON FARMS: Plaintiffs-Appellants Filed Reply Brief in May
SCHNEIDER NATIONAL: Settle Mechanics' Class Action for $3.5MM
SCHNUCK MARKETS: Seeks Transfer of Security Breach Suit to Mo.
SEMILEDS CORP: Robbins Geller Files Class Action in New York
STATE FARM: Voiding Avery May Undercut Class Action Precedent
STATE STREET: September 25 Class Action Opt-Out Deadline Set
STORM FINANCIAL: Class Action Lawyers Balk at Compensation Deal
SYNGENTA AG: Wants Confidential Documents Destructed
TRULY NOLEN: Employees' OT Suit Can Proceed as Class Action
UNITED STATES: Judge Awards $90.8MM in Fees in Black Farmers Suit
UNITED STATES: Descendants of Sand Creek Victims File Class Suit
UNITED STATES: Faces Class Action Over Fannie, Freddie Bailout
UNITED STATES: Meat Groups Sue USDA Over New Labeling Rules
UNITED STATES: NSA Can't Halt Suit Over State Secrets Defense
URBAN OUTFITTERS: Faces Class Action Over Customer ZIP Codes
WELLS FARGO: Overtime Class Action Voluntarily Dismissed
WHOLE FOODS: Recalls Crave Brothers Cheese After Listeria Outbreak
YAMIT A. BITAHON: Faces NIS100MM Suit Over Airport Parking
* Banks Urge Lawmakers to Ban Retailers' Credit Card Surcharges
* Collapsible Laundry Hampers May Cause Serious Eye Injuries
* FDA Plans to Revise Prescription Drug Labeling Rules by Sept.
*********
ADVENTIST HEALTH: Judge Tosses Medical Record Breach Class Action
-----------------------------------------------------------------
Juan Carlos Rodriguez and Vin Gurrieri, writing for Law360, report
that a Florida federal judge on July 3 tossed a proposed class
action accusing Adventist Health System/Sunbelt Inc. of failing to
prevent emergency room workers from selling access to its medical
records database, saying he has no jurisdiction over the case.
Former Adventist patient Richard Faircloth alleges the company,
which operates as Florida Hospital in 22 locations throughout the
state, violated its implied agreement with patients to protect
their sensitive information and hasn't implemented procedures
mandated by the Health Insurance Portability and Accountability
Act to ensure the safety of that information.
Mr. Faircloth contends the federal court had subject matter
jurisdiction over the case because his state law claims turned on
questions of federal law, specifically whether Adventist violated
HIPAA.
But U.S. District Judge Roy B. Dalton Jr. agreed with the hospital
on July 3 and found he doesn't have jurisdiction because the "mere
implication" of HIPAA in Faircloth's state law claims do not mean
that the claims arise under federal law.
"Plaintiff brings state law claims for breach of contract, breach
of implied contract, restitution/unjust enrichment and breach of
fiduciary duty based on the allegation that defendant represented
to patients that it complies with HIPAA," Judge Dalton said.
"Plaintiff's argument that these claims 'arise under' federal law
is premised on the idea that the requisite standard of care that
defendant was required to meet is the privacy standard set forth
in HIPAA," he said. "Plaintiff thus invokes HIPAA merely as an
element of his state law claims."
The judge also said HIPAA does not provide a private right of
action, which means the "welcome mat into federal court is
missing."
"These are simply state law claims for which the standard of care
involves patient privacy, which happens to be regulated by HIPAA,"
the opinion said.
Judge Dalton said the privacy standards imposed by HIPAA are not
uniquely federal and do not raise any issue of great federal
interest, so the federal issue in the case is not substantial and
giving the court jurisdiction to decide the matter would "disrupt
the federal-state balance approved by Congress."
Many other courts that have also concluded that a state law claim
in which HIPAA is implicated as part of an element does not arise
under federal law, according to the judge.
"Finally, the state law claims do not necessarily raise a federal
issue. Plaintiff alleges that defendant violated its own privacy
policies in addition to HIPAA's requirements. Thus, the standard
of care could be defendant's own promulgated privacy policies, not
HIPAA's legal requirements," the opinion said. "The state law
claims thus would not necessarily raise a federal issue."
Mr. Faircloth alleges Adventist breached its statutory obligations
by maintaining its patients' sensitive information in an
electronic database that lacked crucial and statutorily required
security measures. Beginning in 2009, outside vendors, including
lawyer referral services and chiropractors, paid emergency room
personnel to comb through the hospital's records of patients in
order to later solicit services, he says.
The class is represented by Edmund A. Normand of Wooten Kimbrough
& Normand PA and Ryan D. Andrews -- randrews@edelson.com --
Benjamin S. Thomassen and David J. Dale of Edelson LLC.
Adventist is represented by Mayanne Downs --
mayanne.downs@gray-robinson.com -- and Daniel E. Traver --
daniel.traver@gray-robinson.com -- of GrayRobinson PA.
The case is Faircloth et al. v. Adventist Health System/SunBelt
Inc., case number 6:13-cv-00572, in the U.S. District Court for
the Middle District of Florida.
ALASKA: Union Files Class Action Over Office Space Standards
------------------------------------------------------------
Lisa Phu, writing for KTOO, reports that the Alaska State
Employees Association has filed a class action grievance over the
state's new Universal Space Standards policy.
ASEA executive director Jim Duncan says the space standards are
creating major changes in working conditions for its members.
"I'm getting many calls and emails from members who are being
impacted by this, and each and every one of them indicate that
it's causing disruption in the work site making it very
uncomfortable for them," Mr. Duncan said.
Changes caused by the new space standards include putting workers
into 6-by-8-foot cubicles and restricting what items are allowed
within a work space. Mr. Duncan says the state failed to
negotiate with the union prior to implementing the space
standards, which violates the collective bargaining agreement.
In a July 1 letter sent to Administration commissioner
Becky Hultberg, Mr. Duncan outlined the concerns and asked the
state to stop the implementation of the space standards. When the
state did not, ASEA filed the grievance on July 10.
"You go to work, you expect to have some good type of good work
area to perform your job, and this really is a step backwards for
the state. I think it shows a real lack of respect for the
employees and for what they do for the people of the state of
Alaska, so we're clearly going to pursue this aggressively," says
Mr. Duncan.
The state has 20 days to respond to the grievance. If the state
denies the union's request to bargain over the space standards
before implementation, ASEA will ask for arbitration.
Meanwhile, the Department of Administration is planning to unveil
the new space standards on the 7th floor of the Juneau State
Office Building today, July 17.
AMERICAN EXPRESS: McGuireWoods Discusses Supreme Court Ruling
-------------------------------------------------------------
John A. Van Hook, Esq., Bethany A. Pelliconi, Esq. and Sabrina A.
Beldner, Esq. at McGuireWoods LLP report that on June 20, 2013,
the United States Supreme Court upheld the enforceability of class
action waivers under the Federal Arbitration Act.
Background and Decision
In American Express Co. v. Italian Colors Rest., 2013 U.S. LEXIS
4700 (U.S. June 20, 2013), a group of merchants filed a lawsuit
against American Express claiming that it forced them to accept a
credit card rate much higher than those of competing cards. They
sought to pursue the case as a class action on behalf of all other
merchants. However, American Express moved to compel the lawsuit
to individual arbitration pursuant to its written agreement with
the merchants that (1) required all disputes be resolved by
arbitration; and (2) prohibited disputes from being arbitrated "on
a class action basis."
The U.S. Court of Appeals for the 2nd Circuit ruled that the class
action waiver was unenforceable, noting that the high cost of
pursuing individual arbitrations would far outweigh any potential
recovery. Thus, according to the 2nd Circuit, such expenses would
prevent the "effective vindication" of statutory rights and
essentially insulate American Express from liability. In a 5-3
ruling, the United States Supreme Court reversed the 2nd Circuit
and held that a class action waiver in an arbitration agreement
cannot be invalidated based on such considerations.
The Supreme Court specifically rejected the application of the
"effective vindication" doctrine on which lower courts have relied
to invalidate arbitration agreements with class action waivers
when the costs of individual arbitration eliminated any economic
incentive to pursue claims. The Court reasoned that the
"effective vindication" doctrine was meant to protect a party's
right to pursue statutory remedies, not necessarily prove them.
Thus, even if the cost to prove a case may be prohibitive,
plaintiffs can still pursue their statutory rights in individual
arbitration.
Employer Take-Aways
American Express is an example of recent decisions showing the
Supreme Court's willingness to enforce the terms of parties'
agreements to arbitrate. While the American Express case was in
the context of an antitrust action, the decision appears to be a
win for employers seeking to enforce arbitration agreements with
class waivers, as it eliminates an argument that has formed the
basis for numerous courts to invalidate employment arbitration
agreements. However, it remains unclear how lower courts (and, in
particular, courts in California, which have demonstrated a strong
aversion to eliminating the ability of employees to sue their
employers in class actions) will interpret and apply this
decision. Employers should consult their legal counsel to
determine the appropriateness and effectiveness of using
arbitration agreements and class action waivers with their
employees.
APPLE INC: Faces Trial to Set E-Book Antitrust Suit Damages
-----------------------------------------------------------
Matthew Braga, writing for Financial Post, reports that Apple Inc.
"played a central role" in a conspiracy with five American
publishers to fix the prices of electronic books and will face a
trial to set damages, a U.S. federal judge has ruled.
Under what has been referred to as the "agency model," publishers
-- and not retailers such as Amazon -- were allowed to sell book
prices for a higher price through Apple's e-book store, in
exchange for a guarantee that no other store could undercut
Apple's price. In Apple's case, books were sold between $12.99
and $14.99 with Apple receiving a 30% cut of sales.
The intent of Apple's arrangement, according to the U.S. ruling,
was to force Amazon to change its pricing model. At the time,
Amazon was selling electronic versions of best-selling books for
$9.99, which was often below cost.
For consumers, the ruling means little. While Apple has been
ordered to stop its price-fixing conspiracy and may have to pay
triple damages for overcharging customers, settlements with all
five publishers last year have long-since brought the agency model
to an end.
It's very good news. It's very helpful
But the decision, made by U.S. District Judge Denise Cote, could
have implications for a similar class-action suit in Canada.
Lawyers from British Columbia, Ontario and Quebec are putting
their combined weight behind a statement of claim filed in Ontario
last March, accusing Canadian publishers of similar anti-
competitive dealings. The claim, which won't be heard before the
Ontario Superior Court of Justice until late January, 2014, names
Apple, Hachette Book Group Canada Ltd., HarperCollins Canada Ltd.,
Macmillan Publishers, Inc., Penguin Group (Canada), and Simon &
Schuster Canada, Inc., as defendants.
"It's very good news. It's very helpful," said Ward Branch, a
lawyer with Branch MacMaster LLP, author of the textbook Class
Actions in Canada, and leading counsel for the action.
"It helps more in relation to the merits of the case itself,
rather than the actual procedural issue of whether it should be a
class action."
Related
The U.S. government and 33 state attorneys general sued Apple and
five of the biggest publishers in April 2012, claiming the maker
of the iPad pushed publishers to sign agreements letting it sell
digital copies of their books under a model that raised prices and
harmed consumers.
"We've made the same allegation," Mr. Branch said. "Our
expectation is that, given Canada is sort of the tail on the dog,
decisions made in the U.S. would have had a similar effect in
Canada."
Nancy Jean Adams, according to the Canadian claim, is a resident
of Windsor, Ont. who purchased e-books from the publishers named
in the suit through through Amazon.com, the number one e-book
seller.
"Senior executives and employees of the Defendants . . .
wrongfully and unlawfully conspired, agreed or arranged among
themselves to fix, maintain, increase or control the price of
Defendant Publishers' e-books" -- pricing which increased
"immediately" after the iPad's release, according to the claim.
The filing also alleges that the Canadian corporate subsidiaries
received instructions or directives from their respective American
corporate parents "and are liable for their own acts."
Given Canada is sort of the tail on the dog, decisions made in the
U.S. would have had a similar effect in Canada
The American corporate parents of Canadian publishing subsidiaries
all settled in the U.S. before trial began.
"If any of the defendants decided now, based on the U.S. decision
that they would like to settle, we would obviously take their
call," said Mr. Branch.
Penguin Canada, HarperCollins Canada and Simon & Schuster Canada
had yet to respond to a request for comment by the time of
publication.
In a statement, Apple said it intends to appeal the Justice
Department's decision.
"Apple did not conspire to fix e-book pricing and we will continue
to fight against these false accusations," said a company
spokesperson in a statement on July 10.
"When we introduced the iBookstore in 2010, we gave customers more
choice, injecting much needed innovation and competition into the
market, breaking Amazon's monopolistic grip on the publishing
industry. We've done nothing wrong and we will appeal the judge's
decision."
APPLE INC: E-Books Ruling Strengthens Consumer Class-Action Case
----------------------------------------------------------------
Hagens Berman Sobol Shapiro LLP disclosed that the July 10 ruling
in U.S. district court finding Apple guilty of conspiring to fix
prices for e-books will have implications for a separate consumer
class-action lawsuit seeking damages for consumers, according to
the attorneys leading that case.
Steve Berman, managing partner of consumer protection law firm
Hagens Berman and lead counsel in the case representing a proposed
class of millions of e-book purchasers filed on August 9, 2011,
said the findings in the Department of Justice (DOJ) case will
hasten the progress of the consumer case. That case, filed on
Aug. 9, 2011, seeks damages for millions of e-book purchasers to
compensate them for higher e-book prices resulting from Apple and
the publishers' alleged price-fixing scheme.
"Judge Cote ruled definitively that Apple was guilty of conspiring
to fix prices for e-books, and we believe this ruling is binding
on the consumer case, meaning we do not need to again prove
Apple's culpability in the price-fixing scheme," Mr. Berman noted.
"Once we receive class certification, the only issue that will
remain is for a jury to assess damages, which under federal law
are trebled, or tripled."
Hagens Berman filed the first case on this issue, accusing Apple
and five other publishers of conspiring to fix e-book prices by
orchestrating a simultaneous switch from the wholesale pricing
model, where prices were set by the retailer, to the agency
pricing model, where the publishers set the price.
DOJ and several State Attorneys General later filed their own
cases under the federal antitrust laws. The July 10 ruling ends
the first of two trials in the case. A second trial will be held
to determine damages.
"When we filed the original consumer case, we were certain that e-
book purchasers across the country were victims of a well-
organized price-fixing scheme organized largely by Apple," said
Mr. Berman. "We were heartened when the Department of Justice and
the States filed their own anti-trust cases. Those cases were
masterfully prosecuted, culminating in today's ruling."
All five publishers have agreed to settlements in the DOJ, States,
and consumer class cases, leaving Apple as the only remaining
defendant.
For more information on this case, visit
http://www.hbsslaw.com/ebooks
Seattle-based Hagens Berman Sobol Shapiro LLP --
http://www.hbsslaw.com-- represents consumers, whistleblowers,
investors, workers and others in complex and class-action
litigation.
* * *
LawFuel.com reports that the July 10 ruling in U.S. district court
finding Apple guilty of conspiring to fix prices for e-books will
have implications for a separate consumer class-action lawsuit
seeking damages for consumers, according to the attorneys leading
that case.
Steve Berman, managing partner of consumer protection law firm
Hagens Berman and lead counsel in the case representing a proposed
class of millions of e-book purchasers filed on August 9, 2011,
said the findings in the Department of Justice (DOJ) case will
hasten the progress of the consumer case. That case, filed on
Aug. 9, 2011, seeks damages for millions of e-book purchasers to
compensate them for higher e-book prices resulting from Apple and
the publishers' alleged price-fixing scheme.
"Judge Cote ruled definitively that Apple was guilty of conspiring
to fix prices for e-books, and we believe this ruling is binding
on the consumer case, meaning we do not need to again prove
Apple's culpability in the price-fixing scheme," Mr. Berman noted.
"Once we receive class certification, the only issue that will
remain is for a jury to assess damages, which under federal law
are trebled, or tripled."
Hagens Berman filed the first case on this issue, accusing Apple
and five other publishers of conspiring to fix e-book prices by
orchestrating a simultaneous switch from the wholesale pricing
model, where prices were set by the retailer, to the agency
pricing model, where the publishers set the price.
DOJ and several State Attorneys General later filed their own
cases under the federal antitrust laws. The July 10 ruling ends
the first of two trials in the case. A second trial will be held
to determine damages.
"When we filed the original consumer case, we were certain that
e-book purchasers across the country were victims of a well-
organized price-fixing scheme organized largely by Apple," said
Mr. Berman. "We were heartened when the Department of Justice and
the States filed their own anti-trust cases. Those cases were
masterfully prosecuted, culminating in [Wednes]day's ruling."
All five publishers have agreed to settlements in the DOJ, States,
and consumer class cases, leaving Apple as the only remaining
defendant.
ARMS LTD: Maltese Nationals File Discrimination Class Action
------------------------------------------------------------
Miriam Dalli, writing for MaltaToday, reports that EU nationals
residing in Malta are still at a standstill with the government as
they continue to face discrimination over "significantly higher"
utility bills and bus fares than those charged to the Maltese.
EU residents in Malta are charged higher rates because their
Maltese residency is not accepted by Arms Ltd. on the basis of
their identity cards.
The ARMS class action group has also filed a judicial protest
against Arms Ltd. and the Malta Resources Authority, complaining
to the courts that the two entities were in breach of the European
Commission Directive on the free movement of EU citizens.
The European expats have also petitioned the government, and
presented it to Energy Minister Konrad Mizzi.
"Since the meeting with the minister we have heard nothing from
the government, despite the repeated emails we sent," group
spokesperson Patricia Graham told MaltaToday. She pointed out
that while in the run up to the general election political parties
were "open" to their concerns, after the election things change
completely. Pointing out that the Labour Party had indeed kept
communication open during the electoral campaign, while "no
replies" were sent by the Nationalist Party, Ms. Graham said the
Labour government is now keeping mum.
The EU nationals are also disappointed with the European
Commission, as repeated questions filed to the Commission keep
receiving the standard reply that that a letter of formal notice
was sent to the government of Malta and that the Commission was
now considering the reply.
"How long does it take and why are the Commission not on top of
this already? It has gone on far too long. As everyone knows,
the charges are illegal and yet they keep dragging their feet?
What are we not being told?" Ms. Graham said.
The class action group is currently running a campaign to
encourage every EU National residing in Malta to make sure they
have their EU voting rights. Graham said that before, voting
rights used to be offered with the issuance of the old ID card.
"That isn't happening anymore in many instances," Ms. Graham said.
Taking the opportunity to make their voice heard ahead of European
Council President Herman Van Rompuy's visit to Malta, the group
organised a protest outside Auberge de Castille.
"Every day we have people queuing for the new e-card that Malta
insisted we have. What's the point of that card? The Freedom of
movement and the right to reside for EU Nationals is there in
black and white.
"I can understand the government wanting to keep a check on non-EU
Nationals. But since the card is not a requirement for residency
why put everyone through this? I feel more sorry for the people
from Gozo who in this heat travel for hours just to get this
insignificant card," Ms. Graham said.
She went on to add that once the card is issued, this is still not
accepted everywhere. "Moreover, once apply, receipts are no
longer being given leaving those who applied in limbo for
identification purposes until they eventually receive the new
card," Ms. Graham said.
EU nationals are still being referred to as "A" (aliens) on the
new e-card.
The group who on July 10 braved the sun and scorching
temperatures, donned alien masks, to the amusement of onlookers.
The group were protesting the continued discriminatory pricing
inflicted on EU Nationals: 35% more for electricity and 60% more
for water.
AU OPTRONICS: Dechert LLP Discusses Supreme Court's CAFA Ruling
---------------------------------------------------------------
Michelle Hart Yeary, Esq., at Dechert LLP, reports that a few
months ago, the Supreme Court granted certiorari in a case to
decide whether a state's parens patriae action is removable as a
"mass action" under the Class Action Fairness Act ("CAFA") when
the state is the sole plaintiff and the claims arise under state
law. The decision on appeal is the Fifth Circuit's Mississippi v.
AU Optronics Corp., 701 F.3d 796, 800 (5th Cir. 2012). The Fifth
Circuit answered the question in the affirmative and as that
remains the controlling law for the circuit, the Northern District
of Mississippi recently followed suit in Hood v. Bristol-Myers
Squibb Co., 2013 U.S. Dist. LEXIS 90540 (N.D. Miss. Jun. 27,
2013). Since Hood is a pharmaceutical case, we thought we'd use
it as an opportunity to explore the issue a little more, and there
is a also a good diversity ruling.
This AG action was brought in state court solely under the
Mississippi Consumer Protection Act ("MCPA") seeking civil
penalties, disgorgement and injunctive relief. Id. at *3.
Defendants removed the case to federal court. In opposing
plaintiff's motion to remand, defendants asserted diversity
jurisdiction, federal question jurisdiction and jurisdiction under
CAFA. The court agreed with defendants on both diversity and
CAFA.
As a quick but important side note, plaintiffs filed an amended
complaint on the same day they filed their motion to remand --
presumably attempting to address the jurisdictional issues. The
court, however, found that the question of removal should be
determined based on the original complaint that was in effect at
the time of the removal. Id. at *6-7. Good practical reminder if
you are faced with amended pleadings in the midst of a motion to
remand.
On to diversity. Here the question is who are the real parties in
interest? If the State of Mississippi is the sole party in
interest, there cannot be complete diversity because a State is
not considered a "citizen" for purposes of diversity. Id.at *9-
10. That is precisely what the Mississippi AG argued -- that he
was bringing a "parens patriae suit on behalf of the State of
Mississippi under the MCPA, not a suit on behalf of the individual
users of [defendant's product]." Id. at *9. In opposition,
defendants argued that the real parties in interest were the
citizens of Mississippi who are completely diverse from the
defendants. Id.
In analyzing whether this case was solely a parens patriae suit,
the court noted that when the state is pursuing proprietary or
private interests, the state is only acting as a nominal party.
When the state is pursuing the interests of a private party, the
private party is the real party in interest and simply because the
state is the one pursuing the claims does not turn the private
interests into sovereign interests. Id.at *10-11 (relying on
Alfred L.Snapp &Son v.Puerto Rico, ex reI. Barez, 458 U.S. 592,
601-02 (1982)). So, the court had to look at the specific claims
brought by the Mississippi AG in the original complaint. It
determined that plaintiff's claims for injunctive relief and civil
penalties were properly brought in a parens patriae suit.
However, "Plaintiffs request for disgorgement in equity, coupled
with the series of different statements about the nature of the
injury involved in the original complaint" demonstrated to the
court that the AG was also bringing claims on behalf of individual
Mississippi consumers. Id. at *16. The court pointed to numerous
allegations in the complaint that individual consumers suffered
injury (e.g., information was "communicated to consumers,"
"Defendants purported to warn . . . users," "Defendants
disseminated false and misleading information to the public").
Id. at *16-18. Because the suit was brought on behalf of
individual consumers, all of whom are Mississippi residents, the
case was removable based on diversity. Id. at *20.
While the court could have stopped there, it went on to examine
CAFA jurisdiction. CAFA affords federal jurisdiction to "class
actions" and "mass actions." To be a class action, the suit has
to have been brought either under Federal Rule of Civil Procedure
23 -- which this was not -- or a similar State statute. This suit
was brought under the MCPA which expressly forbids class actions,
so it is not similar to Rule 23 -- and this isn't a class action.
Id. at *28-29.
But what about a "mass action"? CAFA defines a "mass action" as
any civil action . . . in which [1] monetary relief claims of [2]
100 or more persons [3] are proposed to be tried jointly on the
ground that the plaintiffs' claims involve common questions of law
or fact" and [4] include an amount in controversy exceeding
$75,000. 28 U.S.C. Sec. 1332(d)(1l)(B)(i).
Id. at *29. Based on its findings that the citizens of
Mississippi are the real parties in interest, the case meets the
requirements for a "mass action" under CAFA. But, there is an
exception, which is where AU Optronics comes in.
[T]he term "mass action" shall not include any civil action in
which ... all of the claims in the action are asserted on behalf
of the general public (and not on behalf of individual claimants
or members of a purported class) pursuant to a State statute
specifically authorizing such action. See 28 U.S.C. Sec.
1332(d)(11)(B)(ii)(III).
Id. at *30. This is known as the "general public" exception.
And, if you follow the logic from the diversity discussion, it
would seem that the general public exception shouldn't apply. The
suit was brought to enforce private, individual interests as well
as public interests. That's what AU Optronics says:
[t ]he requirement that "all of the claims" be asserted on behalf
of the public is not met [where] individual consumers, in addition
to the State, are real parties in interest, so there is no way
that "all of the claims' are 'asserted on behalf of the general
public."
Id. (quoting AU Optronics, 701 F.3d at 802). While that seems
like a straight-forward and non-controversial interpretation of
the general public exception, the real issue seems to be does the
rule swallow the exception. To be considered a "mass action," the
case must involve the claims of at least 100 people. To satisfy
that requirement, a court must conclude that private interests are
being pursued. That finding both qualifies the case as a "mass
action" and disqualifies it from the "general public" exception.
As the concurring opinion in AU Optronics points out it is
difficult to imagine a case that could be a mass action that also
falls within the general public exception. . . In essence, our
precedent has created a situation in which a case cannot satisfy
the criteria of both the mass action provision and the general
public exception.
Id. (quoting AU Optronics, 701 F.3d. at 807, 808).
Hence our interest in AU Optronics. We'd like it to be affirmed
which would likely lead to the great bulk of state AG actions
against pharmaceutical and medical device manufacturers becoming
potentially removable to federal courts. But, we're not blind to
the fact that CAFA as written and currently applied has its
issues. For now, we'll celebrate the victory in Mississippi and
keep our fingers crossed for more good news.
AURCANA CORP: Says Class Action Over Stock Plunge "Baseless"
------------------------------------------------------------
Mourad Haroutunian, writing for Proactiveinvestors, reports that
Aurcana Corp., a junior Canadian miner whose shares have plunged
by eight times since September, dismissed as baseless a class-
action lawsuit filed by a group of shareholders on the falling
stock price.
"While Aurcana's management is not pleased with the recent trend
in Aurcana's stock price, it does not believe that the current
stock price reflects the underlying value of the company," the
Vancouver, British Colombia-based company said in a statement on
July 10.
Sutts, Strosberg LLP, a Canadian law firm, has started the class-
action claim over Aurcana's announcement in April that its Shafter
Mine failed to reach its initial output target of 600 tons a day
on a continuous basis, nudging down the price of the shares, the
Windsor, Ontario-based law firm said in a separate statement
earlier on July 10. The stock has tumbled by more than half since
then.
Aurcana, which operates in Mexico and Texas, said there have been
"significant declines in the stock prices of almost all silver
producers" over this period. "There is no basis for a class-
action claim in relation to Aurcana's stock price," Aurcana said.
Over the past three months, Silver Bull Resources Inc. slid 8
percent, and Impact Silver Corp. dropped 22 percent and Silver
Standard Resources Inc. lost 32 percent.
Sutt, Strossberg asks Aurcana's shareholders to contact it in
relation to declines in Aurcana's stock price in recent months,
according to its statement.
Aurcana shares have been declining since they reached $10.08, the
highest intraday price in the past six years, on Sept. 25. The
stock advanced 2.4 percent to C$1.30 at 2:22 p.m. in Toronto on
July 10.
Silver currently trades around $19 an ounce, almost half the 52-
week high of $35 an ounce.
BANK OF AMERICA: Hagens Berman Files Class Action Over HAMP
-----------------------------------------------------------
Hagens Berman Sobol Shapiro LLP, a national consumer-protection
law firm, on July 12 disclosed that it has filed a class action
lawsuit alleging that Bank of America created and headed an
illegal enterprise designed to defraud homeowners seeking loan
modifications as part of the government's Home Affordable
Modification Program, or "HAMP."
The complaint, filed in U.S. District Court in Colorado on
July 10, alleges that Bank of America masterminded a scheme which
allowed it to deny help it had promised to give thousands of its
customers in exchange for $45 billion it took in bailout funds.
"We believe that Bank of America gamed the system, perpetrating a
fraud on both its customers and American taxpayers," said Steve
Berman, managing partner of Hagens Berman and one of the attorneys
who filed the lawsuit. "BofA promised that it would work with
homeowners to modify their mortgages under the HAMP program.
Instead it took $45 billion in taxpayer money and fought as hard
as it could to avoid granting modifications, squeezing every last
dollar from its customers and wrongfully foreclosing thousands of
people's homes in the process."
For the past three years, Hagens Berman has been pursuing claims
on behalf of homeowners who were not given loan modifications that
the firm believes Bank of America contractually promised them. As
the firm litigated these issues, it uncovered evidence resulting
in the July 11 lawsuit. According to the complaint, Bank of
America's failure to grant loan modifications was not merely the
result of honest mistakes or even widespread incompetence, but a
deliberate and coordinated plan orchestrated by the bank.
The lawsuit alleges that Bank of America employed contractors,
including co-defendant Urban Lending Solutions, who repeatedly
lied to Bank of America's customers. For instance, the suit
claims that Urban employees answered the phone, "Bank of America -
Office of the President," when they did not work directly for Bank
of America.
Former employees, according to the complaint, have confirmed that
Bank of America instructed its employees to delay modifications,
claim that it had not received paperwork and payments when it had
received them, and declined modifications en masse in periods
known internally as "blitzes."
The complaint also alleges that Bank of America went to great
lengths to keep its employees silent about these issues. According
to the suit, employees who questioned the ethics of declining
modifications for fraudulent reasons, or of lying to customers,
were subject to discipline including termination.
"BofA's efforts to keep its employees from exposing the scheme
were successful for far too long," said Mr. Berman. "Now -- some
very courageous former employees have come forward and shed light
on this massive injustice that has impacted hundreds of thousands
of people across the United States."
The lawsuit claims that Bank of America is guilty of violating the
Racketeering Influenced Corrupt Organizations Act, or RICO. It
asks for damages to be awarded to a proposed class defined as:
"All individuals whose home mortgage loans have been serviced by
BOA and who, since April 13, 2009, (1) applied to BOA for a HAMP
loan modification, (2) fulfilled an FHA Trial Period Plan
Agreement or any other trial-payment agreement that was not issued
pursuant to SD-09 (form 3156), (3) sent documents to, or received
documents or other communications from, Urban employees in
connection with their attempts to modify their home mortgage, and
(4) did not receive, within 30 days after making all required
trial payments, a permanent loan modification that complied with
HAMP rules."
Additional information about this case is available at
http://is.gd/nMHXjn
About Hagens Berman
Seattle-based Hagens Berman Sobol Shapiro LLP --
http://www.hbsslaw.com-- represents consumers, whistleblowers,
investors, workers and others in complex and class-action
litigation.
BEEBE MEDICAL: Bond Ratings Improve After Class Action Settlement
-----------------------------------------------------------------
James Fisher, writing for The News Journal, reports that Beebe
Medical Center's bond ratings are rebounding after class-action
legislation tied to the Earl Bradley scandal was settled without
the hospital having to seek bankruptcy protection or default on
bonds.
On July 9, Fitch Ratings improved the rating for Beebe's $37.1
million in debt from negative to stable, because the Lewes medical
center was no longer threatened by a lawsuit from parents of the
children Bradley sexually assaulted in his doctor's office.
Bradley was a member of Beebe's network of physicians, and Beebe
was a defendant in the lawsuit.
A judge approved a $123 million settlement agreement last
November, allowing Bradley's victims to apply for compensation.
The money in the victims' fund came mostly from Beebe's insurance
carriers, with the hospital itself committing $7.2 million in cash
over five years and $1 million in free medical services.
Bradley is serving multiple life sentences after a 2011 conviction
for sexually abusing or raping 86 children under his care.
When lawsuits saying the hospital failed to heed warnings about
Bradley were first filed in April 2010, the credit agencies
dropped Beebe's ratings several notches. At the time, Fitch cited
"considerable uncertainty of the resolution of the litigation
involving Beebe," and it cut Beebe's rating, which was A- before
the Bradley litigation, to BBB- by 2011.
The ratings are used to set terms when an entity issues bonds. A
higher bond rating means lower costs when borrowing money for
bonds.
In a new report on July 9, Fitch held the rating at BBB- but said
it did not expect more downgrading. "The settlement eliminated
the significant unknown of the ultimate resolution of the case,
which had been the main reason for the maintenance of the negative
outlook," the agency said in a report.
The ratings agency Moody's upgraded Beebe's credit rating in
December 2012 from Ba3 to Baa3 with a stable outlook, noting the
Bradley settlement "explicitly prohibits additional legal action
related to the abuse case."
Standard & Poor's, the third major credit rating agency, had
improved its opinion of Beebe's credit in July 2012, citing
apparent progress at the time in reaching a settlement.
Beebe's chief financial officer, Paul Pernice, said the revised
outlook could help Beebe raise money at lower interest rates if it
decides to make major improvements like electronic health record
updates in coming months. "Part of that could mean issuing new
debt," Mr. Pernice said on July 11.
The ratings agencies, Mr. Pernice said, consider Beebe financially
healthy, enjoying a strong market in retiree-friendly Sussex
County. "They see this as all positives," Mr. Pernice said.
BEST BUY: Awaits Ruling on Bid to Dismiss Minn. Securities Suit
---------------------------------------------------------------
A Minnesota federal court has yet to rule on Best Buy Co.'s motion
to dismiss an amended complaint in a consolidated securities class
action, the Company disclosed in its June 7 Form 10-Q report for
the quarterly period ended May 4, 2013.
A purported class action, IBEW Local 98 Pension Fund, individually
and on behalf of all others similarly situated v. Best Buy Co.,
Inc., et al., was filed in February 2011, against the Company and
certain of its executive officers in the U.S. District Court for
the District of Minnesota. This federal court action alleges,
among other things, that the Company and the officers named in the
complaint violated Sections 10(b) and 20A of the Exchange Act and
Rule 10b-5 under the Exchange Act in connection with press
releases and other statements relating to the Company's fiscal
2011 earnings guidance that had been made available to the public.
In March 2011, a similar purported class action was filed by a
single shareholder, Rene LeBlanc, against the Company and certain
of its executive officers in the same court. In July 2011, after
consolidation of the IBEW Local 98 Pension Fund and Rene LeBlanc
actions, a consolidated complaint captioned, IBEW Local 98 Pension
Fund v. Best Buy Co., Inc., et al., was filed and served.
The Company filed a motion to dismiss the consolidated complaint
in September 2011, and in March 2012, subsequent to the end of
fiscal 2012, the court issued a decision dismissing the action
with prejudice. In April 2012, the plaintiffs filed a motion to
alter or amend the court's decision on the Company's motion to
dismiss. In October 2012, the court granted plaintiff's motion to
alter or amend the court's decision on the Company's motion to
dismiss in part by vacating such decision and giving plaintiff
leave to file an amended complaint, which plaintiff did in October
2012.
The Company filed a motion to dismiss the amended complaint in
November 2012 and all responsive pleadings were filed in December
2012. A hearing was held on April 26, 2013. The court's decision
remains pending.
The Company also disclosed that in June 2011, a purported
shareholder derivative action captioned, Salvatore M. Talluto,
Derivatively and on Behalf of Best Buy Co., Inc. v. Richard M.
Schulze, et al., as Defendants and Best Buy Co., Inc., as Nominal
Defendant, was filed against both present and former members of
the Company's Board of Directors serving during the relevant
periods in fiscal 2011 and the Company as a nominal defendant in
the U.S. District Court for the State of Minnesota. The lawsuit
alleges that the director defendants breached their fiduciary
duty, among other claims, including violation of Section 10(b) of
the Exchange Act and Rule 10b-5 thereunder, in failing to correct
public misrepresentations and material misstatements and/or
omissions regarding the Company's fiscal 2011 earnings projections
and, for certain directors, selling stock while in possession of
material adverse non-public information.
Additionally, in July 2011, a similar purported class action was
filed by a single shareholder, Daniel Himmel, against the Company
and certain of its executive officers in the same court. In
November 2011, the respective lawsuits of Salvatore M. Talluto and
Daniel Himmel were consolidated into a new action captioned, In
Re: Best Buy Co., Inc. Shareholder Derivative Litigation, and a
stay ordered until after a final resolution of the motion to
dismiss in the consolidated IBEW Local 98 Pension Fund v. Best Buy
Co., Inc., et al. case.
The plaintiffs in the securities actions seek damages, including
interest, equitable relief and reimbursement of the costs and
expenses they incurred in the lawsuits. The Company believes the
allegations in the securities actions are without merit, and the
Company intends to defend these actions vigorously. Based on its
assessment of the facts underlying the claims in the securities
actions, their respective procedural litigation history, and the
degree to which the Company intends to defend itself in these
matters, the amount or range of reasonably possible losses, if
any, cannot be estimated.
BEST BUY: In Talks to Settle LCD Action as July 22 Trial Looms
--------------------------------------------------------------
Best Buy Co. disclosed in its June 7 Form 10-Q report for the
quarterly period ended May 4, 2013, that it is in active
settlement discussions with certain defendants scheduled for trial
in the lawsuit captioned Best Buy Co., Inc., et al. v. AU
Optronics Corp., et al. pending in the United States District
Court for the Northern District of California.
The trial is scheduled to begin on July 22, 2013.
Best Buy commenced the lawsuit on October 8, 2010, alleging the
defendants engaged in price fixing in violation of antitrust
regulations and conspired to control the supply of TFT-LCD panels.
BP PLC: Medical Benefits Under Settlement Face Objections
---------------------------------------------------------
Margaret Cronin Fisk and Laurel Brubaker Calkins, writing for
Insurance Journal, report that the medical benefits portion of BP
Plc's settlement over the 2010 Gulf of Mexico oil spill is
"substantively unfair" and approval of the accord should be
reversed, lawyers opposing the agreement told an appeals court.
The settlement, reached last year as part of a resolution of most
private-party claims, provides compensation for possible physical
injuries related to the spill or the cleanup. It also requires
medical monitoring of possible effects from the exposure.
After U.S. District Judge Carl Barbier in New Orleans gave final
approval to the accord in January, multiple plaintiffs appealed,
contending it severely limits payments to victims with substantial
injuries and such claims can't be resolved as a class, or group,
action.
Legal requirements for class actions "preclude certification of
this diffuse and disparate class that includes members who have
manifested injury, will later manifest injury and will never
manifest injury," lawyers for the objectors said in a filing with
the U.S. Court of Appeals in New Orleans on July 12. The
settlement is "substantively unfair and troubling."
Judge Barbier found no merit in the objections when he granted
final approval Jan. 11.
'No Assurance'
Without this settlement, "plaintiffs face significant further
expenses in time, money, and resources -- with no assurance of
recovery," the judge wrote in his 91-page decision. Judge Barbier
certified a class for the purposes of the settlement.
Scott Dean, a spokesman for London-based BP, declined to comment
on the filing. David Falkenstein, a spokesman for the committee
of spill-victims' lawyers who negotiated the accord, didn't
immediately respond to phone and e-mail messages seeking comment
on the filing.
Judge Barbier in December approved the economic loss and property
damage portion of the settlement, which resolved most private
plaintiffs' claims related to the explosion of the Deepwater
Horizon oil rig and subsequent spill. That approval has also been
appealed.
The blowout and explosion aboard the Deepwater Horizon drilling
rig in April 2010 killed 11 workers and sent millions of barrels
of crude leaking into the gulf. The accident prompted hundreds of
lawsuits against BP; Transocean Ltd., the Vernier, Switzerland-
based owner and operator of the rig; and Halliburton Co., which
provided cementing services.
Private Claims
BP's proposed partial settlement of private claims from the
largest offshore oil spill in U.S. history was reached in March
2012, days before a trial on liability for the spill was set to
begin. The settlement didn't cover suits brought by the U.S.
government and the states of Alabama and Louisiana, or plaintiffs'
claims against co-defendants.
BP initially estimated the accord to be worth at least $7.8
billion and announced this year that the cost could be
substantially higher because of what the company considers a
flawed interpretation of claims by the settlement's administrator.
The settlement doesn't have a cap on potential damages. BP is
appealing Judge Barbier's ruling upholding the claims
administrator's interpretation of the settlement.
The medical benefits settlement resolves the claims of clean-up
workers and residents of certain Gulf Coast beachfront and
wetlands areas who contend they sustained personal injuries
related to exposure to oil spilled or to chemical dispersants used
during the clean-up efforts, according to court papers.
Medical Monitoring
The agreement provides for medical monitoring of possible effects
from the exposure, as well as "preservation of class members'
rights to sue BP for compensatory damages for physical conditions
that manifest at a later date," the company said in an August
filing seeking approval of the pact.
The settlement underpays certain claims and treats all injuries as
substantially the same, lawyers objecting to the agreement said in
their filing on July 12. The requirements for class actions don't
allow for such treatment of personal injury claims, they said.
"Here, predominance is simply impossible to meet," the lawyers
said. "Someone injured from the drilling platform accident has a
completely different cause of action from someone suffering injury
from the chemicals used in the cleanup: not just the completely
different damages calculation and potential individualized issues
of specific causation, but a completely different theory of
negligence or punitive damages, and a completely different theory
of general causation."
The appeal is In Re: Deepwater Horizon -- Appeals of the Medical
Benefits Class Action, 13-30221, U.S. Circuit Court of Appeals for
the Fifth Circuit (New Orleans). The lower court case is In re
Oil Spill by the Oil Rig Deepwater Horizon in the Gulf of Mexico
on April 20, 2010, MDL-2179, U.S. District Court, Eastern District
of Louisiana (New Orleans).
CENTURYLINK: Faces Investor Class Actions Over Share Repurchase
---------------------------------------------------------------
Channel Partners reports that CenturyLink is facing a flurry of
class-action lawsuits filed on behalf of investors who purchased
stock in the company between Aug. 8, 2012, and Feb. 14, 2013.
The lawsuits stem from CenturyLink's announcement on Feb. 13 that
due to weaker than expected financial results, it would cut its
dividend by more than one-quarter, from 72.5 cents to 54 cents per
share.
CenturyLink also announced a new capital allocation initiative,
under which it authorized the repurchase of up to $2 billion of
its outstanding common stock. Upon this news, shares of
CenturyLink fell from a close of $41.69 on the day of the
announcement to a close of $32.27 the following day.
On June 27, New York law firm Pomerantz Grossman Hufford Dahlstrom
& Gross announced that it had filed a securities class action
claim against CenturyLink and its officers. The lawsuit alleges
violations of the federal securities laws, specifically Rule 10b-5
and Sections 10(b) and 20(a) of the Securities Exchange Act of
1934, and seeks to recover damages from the company, as well as
its officers and directors.
The securities class-action claim also alleges that Glen Post, who
was serving as CEO of CenturyLink at the time and is named as a
defendant in the lawsuit, sold more than $4.3 million in stock
when the company's shares were being artificially inflated by the
statements of the defendants. The lawsuit claims that both the
volume of the stock that Post traded and the times when he made
his transactions were abnormal in nature.
On June 21, another New York law firm, Levi & Korsinsky, announced
that they had commenced a lawsuit on behalf of the affected
investors in the U.S. District Court for the Southern District of
New York. The suit alleges that CenturyLink made "false and
misleading" statements about its dividend cut and both misled
investors on the strength of its free cash flow and that "as a
result of the Company's misleading statements, CenturyLink stock
traded at an artificially inflated price."
A lawsuit filed by Connecticut-based Scott+Scott, Attorneys at Law
on June 5 alleges violations of the Securities Exchange Act of
1934.
Also on June 5, a securities class action lawsuit was filed by
Zeldes Haeggquist & Eck, which is based in San Diego, Calif.
CHINA CENTURY: Oct. 7 Class Action Settlement Fairness Hearing Set
------------------------------------------------------------------
The Rosen Law Firm, P.A. on July 12 disclosed that the United
States District Court Central District of California has approved
the following announcement of a proposed class action settlement
that would benefit purchasers of common stock of China Century
Dragon Media, Inc.:
SUMMARY NOTICE OF CLASS ACTION SETTLEMENT
TO: ALL PERSONS WHO PURCHASED THE PUBLICLY TRADED COMMON STOCK OF
CHINA CENTURY DRAGON MEDIA, INC. DURING THE PERIOD FROM FEBRUARY
7, 2011 THROUGH MARCH 21, 2011, INCLUSIVE.
YOU ARE HEREBY NOTIFIED, pursuant to an Order of the United States
District Court for the Central District of California, that a
hearing will be held on October 7, 2013 at 8:30 a.m. before the
Honorable John A. Kronstadt, United States District Judge of the
Central District of California, 255 East Temple Street, Los
Angeles, CA 90012 for the purpose of determining: (1) whether the
proposed Settlement consisting of the sum of $778,333.33 (of which
approximately $518,333.33 is to be paid on behalf of MaloneBailey
LLP; $83,334.00 by the parent company of WestPark Capital, Inc.;
$45,833.00 by I-Bankers Securities, Inc.; $45,833.000 by Joseph
Gunnar & Co., LLC; $25,000.00 by Aegis Capital Corporation; and
$60,000.00 by David De Campo) should be approved by the Court as
fair, reasonable, and adequate; (2) whether the proposed plan to
distribute the settlement proceeds is fair, reasonable, and
adequate; (3) whether the application for an award of attorneys'
fees of 25.7% of the Settlement amount ($200,000) and
reimbursement of expenses of not more than $70,000, and an
incentive payment of no more than $3,000 each to lead plaintiff
and class representatives, should be approved; and (4) whether the
Litigation should be dismissed with prejudice with respect to the
Released Parties.
If you purchased common stock of China Century Dragon Media, Inc.,
during the class period from February 7, 2011 through March 21,
2011, inclusive, your rights may be affected by the Settlement of
this action. If you have not received a detailed Notice of
Pendency and Settlement of Class Action and a copy of the Proof of
Claim and Release, you may obtain copies by writing to China
Century Dragon Media, Inc. Litigation, c/o Strategic Claims
Services, P.O. Box 230, 600 N. Jackson St., Ste. 3 Media, PA 19063
(Tel: 866-274-4004); (Fax: 610-565-7985); (email:
info@strategicclaims.net), or going to the website,
www.strategicclaims.net. If you are a member of the Class, in
order to share in the distribution of the Net Settlement Fund, you
must submit a Proof of Claim and Release postmarked no later than
September 16, 2013, establishing that you are entitled to
recovery. Unless you submit a written exclusion request, you will
be bound by any judgment rendered in the Litigation whether or not
you make a claim. If you desire to be excluded from the Class,
you must submit a request for exclusion to the Claims
Administrator, so that it is received no later than September 6,
2013, in the manner and form explained in the detailed Notice of
Pendency and Settlement of Class Action.
Any objection to the Settlement, Plan of Allocation, or the Lead
Plaintiff's Counsel's request for an award of attorneys' fees and
reimbursement of expenses must be in the manner and form explained
in the detailed Notice of Pendency and Settlement of Class Action
and received no later than September 17, 2013, to each of the
following:
Clerk of the Court
United States District Court Central District of California -
Western Division
255 East Temple Street
Suite 2450
Los Angeles, CA 90012
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071
Plaintiffs' Counsel
Patrick M. Kelly, Esq.
David S. Eisen, Esq.
Patricia Ann Golson, Esq.
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
555 South Flower Street, Suite 2900
Los Angeles, CA 90071
E-mail: patrick.kelly@wilsonelser.com
david.eisen@wilsonelser.com
patricia.golson@wilsonelser.com
Attorney for MaloneBailey LLP
Nathan Dooley, Esq.
COZEN O'CONNOR LLP
601 South Figueroa Street, Suite 3700
Los Angeles, CA 90017
Attorney for Aegis Capital Corporation and I-Bankers Securities,
Inc.
Legal and Compliance Department
WestPark Capital Financial Services, LLC
1900 Avenue of the Stars, Suite 310
Los Angeles, CA 90067
Counsel for WestPark Capital, Inc. and Richard Rappaport
John E. Lawlor, Esq.
129 Third Street
Mineola, NY 11501
Attorney for Joseph Gunnar & Co., LLC
Bruce H. Jackson, Esq.
BAKER & McKENZIE LLP
Two Embarcadero Center,
11th Floor
San Francisco, CA 94111
Attorney for David De Campo
If you have any questions about the Settlement, you may call or
write to Lead Plaintiff's Counsel:
Laurence M. Rosen, Esq.
Phillip Kim, Esq.
THE ROSEN LAW FIRM, P.A.
355 South Grand Avenue, Suite 2450
Los Angeles, CA
90071
Tel.: (213) 785-2610
Fax: (213) 226-4684
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE.
DATED: JULY 2, 2013
BY ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
CHRYSLER GROUP: Recalls 500,000 Cars Over Head Restraint Defect
---------------------------------------------------------------
Greg Botelho, writing for CNN, reports that Chrysler took the
preemptive step of recalling nearly half a million vehicles
because of issues with the active head-restraint function found in
several makes and models.
The problem is related to a "potentially faulty microcontroller
(that) entered the supply chain after the 2011 earthquake and
tsunami in Japan caused a worldwide microcontroller shortage,"
Chrysler Group said in a news release issued July 3.
Because of such defective microcontrollers in some vehicles, the
active head restraints -- which are supposed to automatically move
forward during some rear-impact crashes, thereby helping prevent
neck injuries -- aren't working properly.
The Chrysler Group said it doesn't know of any injuries or
accidents tied to the issue.
Some 442,000 vehicles sold in the United States are affected by
the recall, as well as 25,000 in Canada, 10,000 in Mexico and
12,000 elsewhere.
Chrysler agrees to recall Jeeps
Makes and models affected by the recall are:
-- 2011 to 2013 Chrysler Sebrings, Chrysler 200s and Dodge Avenger
midsize cars.
-- 2011 to 2012 Dodge Nitro SUVs.
-- 2011 to 2013 Jeep Liberty SUVs.
The Chrysler Group's recall comes weeks after the company resisted
the federal government's attempt to make it recall vehicles over a
potential fire hazard.
Chrysler stated earlier this month that it would not comply with
the demand to recall vehicles that, the government said, had a
high risk of catching fire when struck from behind.
But it reversed course on June 18, hours before a government
deadline. Even then, the company still claimed the 2.7 million
recalled vehicles -- 1993 to 2004 Jeep Grand Cherokees and 2002 to
2007 Jeep Libertys -- are safe.
CHRYSLER GROUP: Recalls 2013 Model Minivans Over Air Bag Defect
---------------------------------------------------------------
The Associated Press reports that Chrysler is recalling 282,000
minivans from the 2013 model year because the side air bags can
deploy on the wrong side in a crash.
Side air bags are supposed to deploy on the side of the vehicle
that's involved in a crash. Chrysler says a software problem is
causing its air bags to deploy on the opposing side of the
vehicle.
Affected models are the Dodge Grand Caravan, Chrysler Town and
Country and Ram Cargo Van. The campaign involves 224,000 vehicles
in the U.S.; 49,300 in Canada; 2,900 in Mexico and 5,300
elsewhere.
Chrysler says it began investigating the issue after a customer
complaint. The company says there has been one minor injury
related to the defect.
Chrysler will notify affected customers. Dealers will reprogram
the software for free.
COOPER COMPANIES: Court Dismissed Securities Class Suit in May
--------------------------------------------------------------
On November 28, 2011, Harold Greenberg filed a complaint in the
United States District Court for the Northern District of
California, Case No. 4:11-cv-05697-YGR, against The Cooper
Companies, Inc.; Robert S. Weiss, its President, Chief Executive
Officer and a director; Eugene J. Midlock, its former Senior Vice
President and Chief Financial Officer; and Albert G. White, III,
its Vice President and Chief Strategy Officer.
On December 12, 2011, a second individual, Ross Wallen, filed a
related complaint against the same defendants in the Northern
District of California, Case No. 4:11-cv-06214-YGR. The Wallen
complaint largely repeats the allegations in the Greenberg
complaint.
Greenberg and Wallen each sought to represent a class of persons
who purchased the Company's common stock between March 4, 2011,
and November 15, 2011.
On February 29, 2012, the court ordered the Greenberg and Wallen
actions consolidated and appointed Universal-Investment-
Gesellschaft mbH as lead plaintiff. On May 4, 2012, the lead
plaintiff filed a Consolidated Amended Complaint, which alleges
that the Company, Robert S. Weiss and Eugene J. Midlock violated
Section 10(b) of the Securities Exchange Act of 1934 by, among
other things, making misrepresentations with an intent to deceive
investors concerning the safety of the Avaira(R) Toric and Avaira
Sphere contact lenses, which the Company recalled in 2011.
On August 7, 2012, the Court heard argument on defendants' motion
to dismiss the Consolidated Amended Complaint. On January 7, 2013,
the Court granted defendants' motion to dismiss the Consolidated
Amended Complaint, with leave to amend.
On February 4, 2013, the lead plaintiff filed a Second
Consolidated Amended Complaint, which again alleges that the
Company, Robert S. Weiss and Eugene J. Midlock violated Section
10(b) of the Securities Exchange Act of 1934 by, among other
things, making misrepresentations with an intent to deceive
investors concerning the 2011 recall of Avaira contact lenses. The
Second Consolidated Amended Complaint seeks unspecified damages on
behalf of a purported class of persons who purchased the Company's
common stock between August 19, 2011 and November 15, 2011.
On March 6, 2013, the defendants moved to dismiss the Second
Consolidated Amended Complaint.
On April 16, 2013 the Court heard argument on defendants' motion
to dismiss the Second Consolidated Amended Complaint. On May 31,
2013, the Court granted defendants' motion to dismiss the Second
Consolidated Amended Complaint without leave to amend. The lead
plaintiff has 30 days following entry of the judgment in which to
file a notice of appeal.
In its June 7 Form 10-Q filing for the quarterly period ended
April 30, 2013, The Cooper Companies said it is not in a position
to assess whether any loss or adverse effect on the Company's
financial condition is probable or remote or to estimate the range
of potential loss, if any.
E-SPORTS ENTERTAINMENT: Fires Employee Over Bitcoin Malware
-----------------------------------------------------------
Robert McMillan, writing for Wired Enterprise, reports that an
unidentified staffer at the ESEA gaming network has been fired for
allegedly turning the company's software into a secret Bitcoin-
mining Trojan.
In April, ESEA (the E-Sports Entertainment Association) admitted
that its software -- which serious Counter-Strike players use to
play each other in anti-cheating modes -- had been altered to
secretly mine Bitcoins. At the time, ESEA blamed an unidentified
staffer. Now, as the company faces a class action lawsuit, it
says that employee has been axed.
"The person responsible for releasing the unauthorized Bitcoin
mining code has been terminated," said ESEA co-founder Craig
Levine in an email message. "We have been dealing with the entire
situation in a responsible fashion to remedy those impacted and
take steps to prevent this from happening again."
Class action lawyers are trying to help them out. They recently
filed a lawsuit against ESEA in San Francisco Superior Court,
claiming that the mining software damaged client's systems and
spiked their electricity bills.
Mr. Levine declined to comment on the lawsuit, but he said that
the company has set up "a very reasonable claims process for
people to submit verified damages to (graphics cards, power bills,
etc.) and have reimbursed qualified individuals in a very fair
fashion."
So far the company has resolved 275 claims from customers who say
they were damaged by the mining software, and the company is
working to resolve another 15, Mr. Levine said. The Bitcoin-
mining update may have been installed on as many as 14,000
computers.
Back in April ESEA initially called the miner as an April Fool's
prank, but it soon changed tune. The company then said that it
had toyed with the idea of adding a Bitcoin mining option to its
software, but that a rogue employee added the code "for his own
personal gain," according to Levine.
It's possible to earn virtual currency by lending computer
processing power to the peer-to-peer Bitcoin network, and the
graphics processing chips you typically find on serious gaming
machines are better at this Bitcoin "mining" than CPUs. In just a
few weeks ESEA's employee earned himself BTC30, or about $2,400 at
today's exchange rates.
In online forums, ESEA members said that a staffer named "Sean,"
who used the pseudonym "Jaguar" was responsible for the Bitcoin
code. Mr. Levine initially declined to name the person who was
terminated in the incident, citing the pending lawsuit. But when
we reached out to Sean for a comment, Mr. Levine answered the
email and confirmed that he had been axed. "Since his
termination, Sean's e-mail has been setup to forward back to me,"
he wrote.
Sean last signed into the ESEA network on June 1, according to his
profile.
FORD MOTOR: Regulators Close Probe on Defective Engine Cables
-------------------------------------------------------------
Reuters reports that US safety regulators closed an investigation
into defective engine cables in more than 467,000 Ford Taurus and
Mercury Sable cars after Ford Motor Co said it would fix the
problem without issuing a recall.
Damaged speed control cables on Taurus and Sable cars from the
2000 through 2003 model years with Duratec engines failed to
enable the driver to brake properly, the U.S. National Highway
Traffic Safety Administration said in recently posted documents.
The cables can become damaged during underhood maintenance, such
as replacing the battery or changing the air filter.
NHTSA called off the investigation, which started last October,
after Ford said on June 21 it would inspect and repair all
affected models. The repair program will run through Aug. 31, and
there is no mileage limit.
Ford will also reimburse drivers if they've paid for similar
repairs in the past, according to NHTSA documents. The refunds
will be offered through the end of the year.
There were no fatalities or injuries reported as a result of the
defect, but NHTSA said there were 100 complaints and five
accidents reported due to the issue with the speed control cables.
Affected drivers said braking didn't cause the vehicle to slow
down as it should, according to NHTSA documents. Some drivers
said they had difficulty braking and had to slow the vehicle by
shifting to neutral or turning the car off.
NHTSA also closed an eight-month investigation into 70,000 Hyundai
Santa Fe SUVs. The agency launched the investigation into the
2011 model-year vehicles after a driver submitted a complaint
reporting a loose fastener in the vehicle's steering shaft.
In response to NHTSA's inquiry, Hyundai identified four affected
vehicles, according to NHTSA documents. Hyundai said it launched
an investigation into the issue after two steering shaft joint
failures occurred shortly after the vehicles were sold.
Hyundai said the issue was due to an employee's error during the
assembly process, according to NHTSA documents. The company
inspected 680 vehicles at the assembly plant and found no
indications of steering shaft defects.
Hyundai said it believes only a few vehicles were affected, and
that any other vehicles with the defect would've failed already,
according to NHTSA documents. There have been no reports of
steering shaft defects since October 2012.
FORD MOTOR: Statute of Limitations Important to Class Actions
-------------------------------------------------------------
Dorwin Wolfe, Esq. at Wolfe Law Firm reports that back in April,
the law firm's blog discussed a class action lawsuit filed in
federal district court against Ford Motor Company. Now a second
class action lawsuit has been filed in federal court in West
Virginia, claiming that certain Ford vehicles suffered from sudden
acceleration problems, resulting in collisions.
Like the first class action lawsuit, this one was filed against
Ford Motor Company in the District Court for the Southern District
of West Virginia. The vehicles involved in the lawsuit were
manufactured between 2002 and 2010.
The injured parties claimed that the Ford vehicles lacked an
adequate fail-safe system that would have protected them from the
effects of sudden, unintended acceleration. Although the vehicles
had electronic throttle control, that was not enough to override
the effects.
The injured parties in the class action consisted of 100 people
from all over the United States, seeking a total of $5 million for
their purchase costs and/or injuries. They owned a variety of
Ford models. One individual owned a Ford F-150, and though she
did not experience sudden, unintended acceleration, she argued
that had she known her vehicle was capable of such problems, she
never would have paid the amount that she paid. Others have
echoed her claims.
The injured parties argue that they filed their suit before the
statute of limitations, the time period during which you can file
a lawsuit, ran out because they could not have known that Ford
vehicles had problems with sudden acceleration if Ford Motor
Company had not revealed them. The lawsuit also includes vehicles
made by Lincoln and Mercury during the same years. West Virginia
product liability attorneys and attorneys from other states are
taking part in the suit.
The injured parties' complaint does not state whether they are
faulting Ford Motor Company for negligence, or just strict
liability. In a product liability lawsuit, you do not need to
argue that the manufacturer was negligent -- that is, that it
acted unreasonably -- to find it liable.
You just need to argue that the manufacturer created a product
that (1) was unreasonably dangerous in individual form (came off
of the assembly line defective), (2) was designed to be
unreasonably dangerous (the situation with Ford), and/or (3) had
an inadequate warning label that failed to alert you to the
dangers of the product.
An unreasonably dangerous product constitutes a "breach" of the
duty the manufacturer has to consumers. As a result of the
breach, you must suffer injury from the product. Most people in
this situation sue for "damages," or a money award, for pain and
suffering, medical bills, property damage, and a variety of other
ills stemming from the injury.
One interesting issue in this case is whether the statute of
limitations has already run. Most of the time, statutes of
limitations are governed by state law. The number of years can
vary, depending upon the nature of the dispute.
In some cases, the statute of limitations may start running from
the date the injury has occurred; in other cases, it starts
running from the point the injured party was aware of the injury.
In West Virginia, the statute of limitations for personal injury
is two years from when the injury occurred.
For product liability, it is two years from the time of injury, or
from when the injury should have been reasonably detected. If the
statute of limitations is up, you are barred from recovering
damages in the lawsuit, even if you would win on the merits.
FOX SEARCHLIGHT: Intern's Attorney Seeks Dismissal of Stay Request
------------------------------------------------------------------
Tim Kenneally and Pamela Chelin, writing for The Wrap, report that
a former intern who worked on the 2010 ballet drama "Black Swan"
and who won a judgment from Fox Searchlight Pictures is now asking
that the company stop dancing around the matter.
An attorney for former intern Eric Glatt filed a memo in U.S.
District Court in New York on July 8, asking that Fox
Searchlight's request for a stay of all proceedings in the case be
denied.
Mr. Glatt's lawyer also asked the court to order Fox Searchlight
to produce contact information for other members of the class in
the class-action suit so it could move forward with the case.
According to the memo from Mr. Glatt's attorney, the court
directed Fox Searchlight on June 11 to undertake a search for
contact information for other individuals who could be included in
the class-action suit. However, the memo claims, in the
subsequent weeks "Defendants have steadfastly refused to produce
this information, despite Plaintiffs' repeated requests."
Last month, an attorney for Fox Searchlight asked Judge William H.
Pauley III for an interlocutory appeal in the case while certain
controlling questions of law were cleared up. The request asked
that the court to address two questions. Namely, "What is the
test for determining whether an unpaid intern has been
misclassified and is entitled to compensation as an employee?" and
"What legal standard applies at the post-discovery stage in the
FLSA conditional certification context?"
In June, Judge Pauley found that Mr. Glatt and fellow "Black Swan"
intern Alexander Footman deserved to be compensated for the work
they did on the film, per the Fair Labor Standards Act [FLSA] and
New York labor law.
Mr. Pauley also found that a third intern, Eden Antalik -- who
worked at Fox Searchlight's New York office -- can pursue a class-
action complaint against the company.
In the memo filed on July 8, Mr. Glatt's attorney argued that
there's no basis to Fox Searchlight's request to stay the
litigation, since "Defendants' appeal is unlikely to be granted."
Mr. Glatt's lawyer argues that Fox Searchlight would not suffer
"irreparable injury" from having to search for the contact
information, and that "staying the prosecution of claims
potentially affecting a broad swath of the American economy is not
'in the public interest.'"
The attorney also claims that the class members could suffer
potential injury by the delay, and that the case should move
forward due to concerns over the statute of limitations.
FRESENIUS KABI: Recalls Benztropine Mesylate Injection Vials
------------------------------------------------------------
The Associated Press reports that the American unit of German
drugmaker Fresenius is recalling four lots of an injectable drug
after finding particles of glass in some vials of the medication.
The recall applies to four lots of benztropine mesylate injection,
which is used to treat Parkinson's disease and some movement side
effects related to epilepsy drugs. The drug is manufactured by
Allergy Laboratories Inc. and distributed by Fresenius Kabi. The
products may also appear with APP or Nexus Pharmaceuticals listed
as the manufacturer on the label. The recalled lot numbers are:
030712, 071212, 090512 and 111412.
Fresenius Kabi USA says no adverse reactions or customer
complaints have been reported.
The company is asking health care professionals to return the
products by calling the company at 1-866-716-2459.
GRUMA CORP: Judge Stays Food Label Class Action for Six Months
--------------------------------------------------------------
Josh Long, writing for Food Product Design, reports that a federal
judge on July 11 punted to federal regulators a question that has
plagued U.S. food companies. Is it lawful to label foods
"natural" when they contain ingredients whose genes have been
modified?
In a proposed class action lawsuit filed against the tortilla
giant Gruma Corp., U.S. District Judge Yvonne Gonzales Rogers
referred to FDA "the question of whether and under what
circumstances food products containing ingredients produced using
bioengineered seed may or may not be labeled 'Natural' or 'All
Natural' or '100% Natural'". She also put a stay on the case for
six months.
Benjamin Lopatin, a San Francisco-based attorney representing the
proposed class, declined to comment when asked if he planned to
file a request for reconsideration or appeal the ruling.
Gruma is defending a proposed class action over the labeling of
its tortilla products. Lawyers for the proposed class contend
labels on its food products are false and misleading because they
contain GMOs (genetically modified organisms), namely corn that is
grown from genetically-modified seeds.
Whether FDA will answer the legal question is uncertain.
Three years ago, in a lawsuit filed against Hornell Brewing Co., a
federal judge stayed the case for six months, referring to FDA the
question of whether high fructose corn syrup qualifies as a
"natural" ingredient. But the agency's Center for Food Safety and
Applied Nutrition (CFSAN) declined to make the determination,
citing higher priorities and the years it would take to undertake
such a proceeding.
"I don't think a lot of people are holding out hope this [case,
Elizabeth Cox v. Gruma Corp.] is going to be different than the
other one," an attorney representing food companies said before
the ruling.
Judge Rogers said FDA has defined the term natural on food labels
in non-binding draft guidance.
"However, the parties appear to be in agreement that the FDA has
not addressed, even informally, the question of whether foods
containing GMO or bioengineered ingredients may be labeled
'natural' or 'all natural,' or whether GMO or bioengineered
ingredients would be considered 'artificial or synthetic,'" she
wrote.
When asked to comment on whether it had plans to address the legal
issue the judge referred to FDA, a spokesperson for the agency
said, "FDA is reviewing the order at this time."
GRUPO AVAL: Still Defends Suits Over Pension and Severance Funds
----------------------------------------------------------------
Grupo Aval Acciones y Valores S.A., its banking subsidiaries,
Sociedad Administradora de Fondos de Pensiones y Cesantias
Porvenir S.A. ("Porvenir") and Corporacion Financiera Colombiana
S.A. ("Corficolombiana") are also party to collective or class
actions ("acciones populares" or "acciones de grupo,"
respectively). Collective actions are court actions where an
individual seeks to protect collective rights and prevent
contingent damages, obtain injunctions and damages caused by an
infringement of collective rights of which the following are the
most significant.
All pension and severance fund administrators in Colombia,
including Porvenir and Horizonte, are subject to at least two
class actions in which certain individuals are alleging that the
pension and severance funds administrators have caused damages to
their customers by (1) paying returns earned by the severance and
pension funds below the minimum profitability certified by the
Superintendency of Finance, and (2) making payments to its
customers -- under the scheduled retirement system -- below the
established standards. Additionally, Porvenir, Horizonte and
certain other pension and severance funds are subject to a
constitutional action relating to charging commissions above the
legally established limits for contributions to mandatory pension
funds. These constitutional actions are seeking the payment of
the alleged damages caused to fund managers' customers. No
provisions have been established in connection with these three
constitutional actions because the amount is unquantifiable, and
the Company considers the probability of loss to be remote.
No further updates were reported in the Company's May 30, 2013,
Form F-1 filing with the U.S. Securities and Exchange Commission.
Grupo Aval Acciones y Valores S.A. -- http://www.grupoaval.com/--
is an issuer in Colombia of securities registered with the
National Registry of Shares and Issuers (Registro Nacional de
Valores y Emisores). Grupo Aval, which is headquartered in Bogota
D.C., is a not a financial institution and is not supervised or
regulated as a financial institution in Colombia.
HALLIBURTON CO: Asks High Court to Review ERISA Class Action
------------------------------------------------------------
Abigail Rubenstein, writing for Law360, reports that Halliburton
Co. recently urged the U.S. Supreme Court to review a ruling that
revived a putative class action accusing it of improperly cutting
retirement benefits for workers at a former subsidiary, asking the
justices to resolve a circuit split over when retirement plan
members can sue.
The company filed a petition for certiorari on July 3 that asks
the high court to consider a Second Circuit decision that
reinstated a case against Halliburton brought on behalf of
employees of onetime Halliburton unit Dresser-Rand Co. after the
company cut their subsidized early retirement plans.
A lower court had tossed the suit, finding the employees had not
made formal inquiries with the company and therefore failed to
meet the so-called administrative exhaustion requirement to bring
a suit under the Employee Retirement Income Security Act. But the
Second Circuit concluded that participants could reasonably
interpret the plan terms not to require exhaustion and therefore
did not need to go through the plan's claims processes before
filing suit.
Halliburton's petition asks the Supreme Court to take the case to
determine whether the Second Circuit erred when it decided that
the exhaustion of administrative remedies is not required under
ERISA if the plan phrases its internal procedures in "permissive
terms (e.g., that employees 'may' invoke administrative
remedies)."
In concluding that such language excuses workers from having to
exhaust the plan's administrative procedures before they can file
suit, the Second Circuit joined the Seventh and Eleventh circuits,
according to the petition.
But the Sixth, Eighth and Tenth circuits have gone in the other
direction, holding that plan participants must exhaust all
available administrative remedies whether or not the plan suggests
that they are optional, the petition said.
And Halliburton argues that those other circuits got it right
while the Second Circuit's stance undermines the administrative
exhaustion requirement that all the circuits recognize.
"In the ERISA context, exhaustion is not a contractual limitation
on seeking judicial review (in which case the permissive versus
mandatory nature of the plan terms might matter)," the petition
said. "Rather, it is a judicially imposed requirement that stems
from the statutory text and purpose."
The petition argues that where administrative remedies are
available, it behooves courts to require plan participants to take
advantage of them, since if it does not keep the case out of court
in the first place it makes the court's job easier by creating a
record of the claim. It also preserves the discretion Congress
intended to bestow on plan administrators, the petition said.
As such, the petition urges the justices to overturn the Second
Circuit's ruling.
The case against Halliburton stems from the company's 1998
acquisition of Dresser-Rand, a partnership between Dresser
Industries and Ingersoll-Rand Co. Under the deal, Halliburton
took over Dresser-Rand's pension program, before selling it in
2000 to Ingersoll, which became Dresser-Rand's sole partner.
Dresser-Rand employees filed suit in May 2007, claiming
Halliburton had used the merger as an excuse to cut their
benefits. According to the complaint, Halliburton claimed
Dresser-Rand had ceased to exist when the pension program was sold
to Ingersoll in 2000 and wrongly considered the employees
terminated as of that date.
The worker behind the suit, Kathy Kirkendall, says she wrote a
letter requesting clarification on why her retirement plans were
cut and received no answer. When she sued, Halliburton argued
that she should have made a formal benefit claim under the plan
before going to court.
The district court agreed with Halliburton and threw out the suit
in June 2011. The plaintiffs appealed to the Second Circuit that
July.
The Second Circuit ruling that breathed new life into the case was
handed down in January, and the court subsequently refused to
rehear the matter, prompting Halliburton to turn to the high
court.
Attorneys for the parties were not immediately available for
comment on July 11.
The plaintiffs are represented by David B. Rodes of Goldberg
Persky & White PC.
Halliburton is represented by Shay Dvoretzky --
sdvoretzky@jonesday.com -- James S. Urban -- jsurban@jonesday.com
-- Kevin R. Noble -- krnoble@jonesday.com -- and Yaakov M. Roth --
yroth@jonesday.com -- of Jones Day.
The case is Halliburton et al. v. Kirkendall et al., case number
13-36, in the U.S. Supreme Court.
HOVNANIAN ENTERPRISES: Expects Ruling on Appeal in Coming Months
----------------------------------------------------------------
Hovnanian Enterprises, Inc., and K. Hovnanian Venture I, L.L.C.,
have been named as defendants in a class action suit filed by Mike
D'Andrea and Tracy D'Andrea, on behalf of themselves and all
others similarly situated in the Superior Court of New Jersey,
Gloucester County. The action was initially filed on May 8, 2006
alleging that the HVAC systems installed in certain of the
Company's homes are in violation of applicable New Jersey building
codes and are a potential safety issue. On December 14, 2011, the
Superior Court granted class certification; the potential class is
1,065 homes.
The Company filed a request to take an interlocutory appeal
regarding the class certification decision. The Appellate Division
denied the request, and Company filed a request for interlocutory
review by the New Jersey Supreme Court, which remanded the case
back to the Appellate Division for a review on the merits of the
appeal on May 8, 2012. The Appellate Division, on remand, heard
oral arguments on December 4, 2012 reviewing the Superior Court's
original finding of class certification.
The Company anticipates a ruling from the Appellate Division on
the issue of class certification within the next few months,
according to its Form 10-Q for the period ended April 30, 2013,
filed with the Securities and Exchange Commission on June 7. The
plaintiff seeks unspecified damages as well as treble damages
pursuant to the NJ Consumer Fraud Act. The Company believes
there is insurance coverage available to it for this action.
While the Company has determined that a loss related to this case
is not probable, it is not possible to estimate a loss or range of
loss related to this matter at this time given the class
certification is still in review by the Appellate Division.
On December 19, 2011, certain subsidiaries of the Company filed a
separate action seeking indemnification against the various
manufactures and subcontractors implicated by the class action.
HYUNDAI MOTOR: Recalls 5,200 Azera Sedans Over Airbag Flaw
----------------------------------------------------------
James R. Healey, writing for USA Today, reports that Hyundai is
recalling about 5,200 of its Azera sedans because the front
passenger airbag could inflate when a child is sitting there,
causing injury or death.
Hyundai told the National Highway Traffic Safety Adminstration
that the potential flaw is present in 2012 -- 2013 Azeras built
from May 22, 2012 through November 23, 2012. Hyundai said it
since has corrected the problem and newer vehicles shouldn't be at
risk.
The possible flaw can affect "the ability of the sensor to
properly distinguish when the front passenger airbag should be
deactivated," Hyundai said in a filing with federal safety
officials.
All vehicles' front seats use sensors to meet the requirement that
they be able to distinguish between small, light passengers --
mainly children -- and normal-size adults. The air bag is
supposed to inflate more gently, or not supposed to inflate at
all, in a crash when a smaller person is in the seat because the
full force of the bag against a small body could be harmful. The
safety belt is supposed to be adequate in such cases.
In most states, children under certain ages aren't legally allowed
to sit up front. Still, the rule is meant to protect kids who are
allowed up front, as well as small-stature adults.
Hyundai told NHTSA that its supplier, Autoliv Korea, notified the
automaker last November that a change in fabric covering the
sensor mat within the seat could cause the system to misread the
sensor and inflate the airbag when it shouldn't.
The car company said it received five warranty claims from last
May through November as a result of airbag warning lights coming
on for no apparent reason.
Hyundai said it expects to begin notifying owners the third
quarter this year. Dealers will recalibrate the airbag system to
account for the fabric change.
HUNTINGTON BANK: Sued for Closing Arab American Accounts
--------------------------------------------------------
Niraj Warikoo, writing for Detroit Free Press, reports that
attorneys in metro Detroit filed a class action on July 11 against
Huntington National Bank on behalf of Arab Americans who said
their accounts were suddenly closed without explanation.
Ali El-Hallani of Canton and Mark Manuaeel of Farmington Hills,
who are Arab-American Muslims, allege that Huntington closed their
bank accounts in March "without providing . . . any reason for
doing so."
Filed in U.S. District Court in Detroit, the lawsuit claims that
Huntington "engaged in racial, ethnic, national origin or
religious discrimination against its customers" who are Arab and
Muslim. It's asking the court to issue a temporary restraining
order to stop the banks from closing the accounts of plaintiffs.
No other banks were named in the lawsuit.
Maureen Morrissey Brown, director of public relations for
Huntington, on July 11 said the bank could not comment on the
lawsuit, but added that "it appreciates the opportunity to do
business within the Arab-American community in greater Detroit and
all our other markets."
Over the past decade, Arab Americans have complained about their
bank accounts being suddenly closed down at financial
institutions, say civil rights advocates.
Since the passage of the Patriot Act after the Sept. 11, 2001,
attacks, the U.S. Treasury Department and other agencies have
placed heightened scrutiny on banks to make sure they are not
dealing with money that might be related to terrorism. This has
resulted in banks cracking down on accounts that might fit a
possible pattern of concern. But civil rights advocates say the
crackdown has been overly broad and unfairly targeted Arab
Americans and Muslims.
The Arab American Civil Rights League, a new group based in
Dearborn, said in a statement on July 11 that in recent months, it
has "received hundreds of complaints from community members who
have had their bank accounts closed for no apparent reason."
The lawsuit was filed by attorneys Nabih Ayad of Canton, Barry
Seifman of Farmington Hills and Kassem Dakhlallah of Dearborn.
INDIANA: July 25 Hearing Set for License Fee Suit v. BMV
--------------------------------------------------------
Network Indiana reports that a group of attorneys say the Bureau
of Motor Vehicles is still violating state law with their operator
license fees.
The attorneys filed a class action lawsuit against the BMV
claiming the state agency was grossly overcharging for driver's
licenses. The BMV admitted to the possibility of the overcharges
and immediately dropped the fees by $3.50.
Attorneys in the suit say the BMV is still overcharging by $2.50
according to their interpretation of the law.
In addition, Scott Gilchrist, one of the attorneys in the suit,
says he would like to see the overage fees re-directed to an
account with the court.
"The money can be handled with complete transparency and how it's
transmitted back to class members and also so that it can be
collecting interest for class members instead of just sitting in
state coffers," he says.
Mr. Gilchrist says the BMV also needs to address the overcharges
already collected over the years. The attorneys asked BMV to turn
over the over $30 million collected in overcharges to the court.
The BMV has denied the request.
Another hearing on the case is scheduled for July 25.
INTUIT INC: Has Yet to Submit TurboTax-Related Suits' Settlement
----------------------------------------------------------------
Intuit Inc. has yet to submit for approval its settlement of two
class action lawsuits related to its TurboTax income tax
preparation software, according to the Company's May 30, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended April 30, 2013.
On January 13, 2012, two putative class actions were filed against
Intuit Inc. in connection with its TurboTax income tax preparation
software: Smith v. Intuit Inc. (U.S. District Court, Northern
District of California) and Quildon v. Intuit Inc. (California
Superior Court, Santa Clara County). The plaintiffs in both cases
had asserted that the fees charged for the refund processing
service offered within TurboTax are "refund anticipation loans"
and the disclosures about those fees do not comply with California
and federal laws. The Smith case was brought in federal court on
behalf of a proposed nationwide class and subclasses; the Quildon
case was brought in state court on behalf of a proposed California
class and subclasses. In January 2013, for the purposes of
settlement and without any admission of wrongdoing or liability,
Intuit reached an agreement in principle to resolve all claims
raised in the Smith and Quildon matters for an amount that is not
material to its consolidated financial statements. The Company
accrued that amount in the second quarter of fiscal 2013. The
terms of the proposed settlement are subject to the approval of
the court, which could approve, reject, or suggest modifications
to those terms. The Company currently believes that the
likelihood of a material change to the proposed settlement amount
is remote.
Intuit Inc. provides business and financial management solutions
for small businesses, consumers, accounting professionals and
financial institutions. Incorporated in 1984 and headquartered in
Mountain View, California, the Company sells its products and
services primarily in the United States.
LEGALZOOM.COM INC: Court Rejects Application Fee Class Action
-------------------------------------------------------------
Jess Davis, writing for Law360, reports that a Texas appeals court
on July 11 said LegalZoom.com Inc. won't have to face a nationwide
class action alleging the company overcharged consumers for
trademark application forms, saying the plaintiff failed to show
that common questions of law applied across the board.
The Third District Court of Appeals said a trial judge did not
have to conduct a state-by-state analysis of choice of law
provisions to determine whether California law governed all class
claims and did not abuse discretion by denying certification,
saying it was plaintiff Simon Solotko's responsibility to present
an extensive analysis of state law, evaluating any differences,
not the court's.
The opinion affirmed a trial judge's 2010 ruling denying
nationwide class certification in a suit led by Mr. Solotko, who
sought to represent a class dating back to 2005, when the U.S.
Patent and Trademark Office began offering its Trademark
Electronic Application Service Plus, which has a $275 filing fee.
But the ruling didn't dispose of the entire case, and some claims
against LegalZoom for the trademark fees could continue, said Don
Cruse, an attorney for Mr. Solotko.
"The trial court left open the possibility of state level class
action, and the court of appeals left that open as well,"
Mr. Cruse said, adding that Mr. Solotko's attorneys are still
digesting the ruling and have not yet made any firm decisions
about how to move forward.
Mr. Solotko alleged LegalZoom charged consumers a $159 service fee
on top of a $325 fee it attributed to a fixed government filing
charge, and said he and as many as 15,000 other consumers had
overpaid based on the misrepresentation. He filed suit in 2008,
alleging common law conversion, breach of contract, breach of
fiduciary duty and fraud based primarily on the $50 price
difference between what LegalZoom paid to the USPTO and what it
advertised as the government's filing fee.
He later amended the suit to assert claims based on California law
because of LegalZoom's online terms of service, and claimed
violations of California unfair competition and false advertising
laws as well as statutory constructive fraud and breach of
fiduciary duty.
The appeals court said although Mr. Solotko argued that under
Texas choice of law rules, California law could be applied to
claims from residents of all 50 states, he didn't give the court
"sufficient information" to prove common questions of law would
apply to a national class, saying a trial judge can't accept a
plaintiff's assertions "on faith."
Travis County District Judge Stephen Yelenosky found in 2010 that
Mr. Solotko had failed to show sufficient common issues of law
nationwide, that California law would not be common to all members
of a nationwide class, and that the law applicable to class
members' claims would vary based on choice of law principles
applicable in each of the 50 states as well as substantive
consumer protection laws in each jurisdiction.
The appeals court on July 11 said even assuming that the judge
could have used Texas' choice of law principles to analyze the
entire class, which would likely lean toward enforcing California
law because consumers agreed to that provision in their agreements
with LegalZoom, a court would still have to analyze other
jurisdictions' substantive laws.
For example, the judge would need to determine whether other
states would allow enforcement of an online term of service that
waived certain claims and remedies available under their
respective consumer protection laws, the court said.
The appeals court also rejected an argument from LegalZoom that
Mr. Solotko lacked standing because he suffered no harm or injury,
saying Mr. Solotko had sufficiently alleged he was injured by
representations on LegalZoom's website and sought damages
including disgorgement of the service fee the company charged.
A LegalZoom spokesman said on July 12 it would continue to fight
claims it overcharged customers.
"This is a case where the plaintiff admitted he knew exactly what
he was going to pay before he used LegalZoom's service, admitted
that LegalZoom's use of TEAS-Plus provided him a better service at
no greater cost, and admitted he had no complaints about the
quality and effectiveness of our service," said spokesman Ken
Friedman. "While we believe the case should have been dismissed
in its entirety, we are pleased with the court's ruling and look
forward to our continued work to provide affordable access to the
law for every American."
Mr. Solotko is represented by the Law Office of Don Cruse, Roger
F. Claxton of Claxton & Hill PLLC and Robert B. Kleinman of
Kleinman Law Firm PLLC.
LegalZoom is represented by Peter D. Kennedy -- pkennedy@gdhm.com
-- and Daniel O. Ramon -- dramon@gdhm.com -- of Graves Dougherty
Hearon & Moody PC.
The case is Solotko v. LegalZoom.com Inc., case number 03-10-
00755-CV, in the Texas Court of Appeals for the Third District.
LG ELECTRONICS: Judge Rejects Expert's Testimony in Washer Suit
---------------------------------------------------------------
Greg Ryan, writing for Law360, reports that a New Jersey federal
judge on July 10 tossed the testimony of an LG Electronics USA
Inc. expert in a proposed class action over allegedly defective
washing machines, ruling that his survey to gauge customers'
satisfaction with the products was unreliable.
The suit, brought on behalf of a proposed nationwide class of
consumers, claims LG front-loading washers have a design defect
that causes them to grow moldy and smelly. The allegations are
similar to claims currently under consideration in actions against
Whirlpool Corp. and Sears Roebuck & Co. before the Sixth and
Seventh circuits, respectively.
U.S. District Judge Faith Hochberg granted the plaintiffs' motion
to preclude the expert testimony of Dr. Thomas Maronick, which LG
offered to combat their allegation that the mold and odor issues
with the washers predominated among class members. She denied
another motion to preclude the testimony of two other LG experts.
The judge rejected bids by LG to preclude the testimony of two of
the plaintiffs' experts, to strike expert reports with evidence
already stricken from the case, to strike declarations based on
the so-called sham affidavit doctrine, and to strike other types
of evidence.
Judge Hochberg ordered the plaintiffs to file another class
certification motion based on her opinion, as well as recent
changes in case law, by July 24.
Dr. Maronick's online survey, which was supposed to measure the
incidence of problems with LG washers, did not ask participants
whether their machines smelled, nor did it confirm whether they
even owned the product, according to Judge Hochberg. Instead, it
asked only "highly general questions," she said.
"The court will not permit the testimony of Dr. Maronick because
it is just too unreliable to be of help in deciding class
certification," the judge said.
Another LG expert, Dr. Charles Wysocki, can testify because, as an
expert on human smell, he has the academic and practical
background to opine that "different people smell different things
differently," Judge Hochberg said.
An expert testifying about the proper maintenance of the machines,
Dr. Edward Caulfield, should not be disqualified just because he
tested the products using 15 loads per week for 24 weeks, rather
than an average household's 7.5 loads per week for 52 weeks,
according to the judge. That decision can be questioned on cross-
examination, she said.
LG attacked the two plaintiffs experts -- one for the washers'
design, one for the alleged mold growth inside the machines -- in
part by arguing that they never tested the machines and instead
only inspected them or photographs of them. Judge Hochberg found
they were both qualified to testify, however.
The judge refused to strike three plaintiff expert reports because
they reference declarations previously deemed inadmissible, as the
plaintiffs appear to have inadvertently included the declarations,
according to the judge.
Inconsistencies between the plaintiffs' deposition testimony and
their declarations do not rise to the level of so-called sham
pleadings, Judge Hochberg ruled. For instance, LG argued that some
plaintiffs said they viewed the original complaint even though
they only joined the suit on an amended complaint, but they
maintain they made the comment in reference to the complaint
original to them, according to judge. She then criticized LG for
bringing the sham affidavit doctrine into the case.
"The court notes that there was really no objective basis for
invoking these doctrines screaming 'sham' and asks both sides to
tone down the rhetoric and file only motions that are genuinely
based on the circumstances," the judge said. "Any further waste
of court time on groundless motions will risk sanctions, and all
parties are now on notice."
Attorneys for LG and the plaintiffs could not be immediately
reached for comment on the ruling.
The plaintiffs are represented by James Cecchi and Lindsey Taylor
of Carella Byrne Cecchi Olstein Brody & Agnello PC, Paul Weiss and
Richard Burke of Complex Litigation Group LLC, Steven Schwartz --
SteveSchwartz@chimicles.com -- and Alison Gushue --
AlisonGushue@chimicles.com -- of Chimicles & Tikellis LLP, Oren
Giskan -- ogiskan@gslawny.com -- of Giskan Solotaroff Anderson &
Stewart LLP, and James Shah -- jshah@sfmslaw.com -- and Natalie
Bennett -- nfinkelman@sfmslaw.com -- of Shepherd Finkelman Miller
& Shah LLP.
LG is represented by James Richter of Winston & Strawn LLP.
The case is In re: Front Loading Washing Machine Class Action
Litigation, case number 2:08-cv-00051, in the U.S. District Court
for the District of New Jersey.
LINNCO LLC: Milberg Files Securities Class Action Over IPO
----------------------------------------------------------
Milberg LLP on July 11 disclosed that it has filed a class action
against LinnCo, LLC, certain of LinnCo's officers and directors,
and the underwriters involved in LinnCo's initial public offering
(IPO) on October 12, 2012. The class action was filed of behalf
of investors who purchased LNCO shares in or traceable to LinnCo's
IPO on October 12, 2012 to July 1, 2013, and seeks damages for
defendants' false and misleading statements in the Registration
Statement and Prospectus filed with the SEC for the IPO.
As alleged in the complaint, LinnCo is a Delaware limited
liability company whose sole purpose is to own units representing
limited liability company interests in Linn Energy, LLC, an
independent natural gas exploration and production company whose
units trade on NASDAQ under the symbol "LINE."
On October 12, 2012, LinnCo's IPO Registration Statement became
effective. As alleged in the complaint, certain metrics set forth
in the Registration Statement (adjusted EBITDA, distribution
coverage ratio, and distributable cash flow) were not, contrary to
representation in the Registration Statement, accurate or reliable
measures of Linn's ability to make distributions because these
metrics did not, among other issues, reflect the cost to Linn of
settled put options.
In two articles published in February 2013 and in May 2013,
Barron's questioned Linn's aggressive accounting practices. Among
other things, Barron's criticized Linn for masking considerable
weakness in its distributable cash flows, thus calling into
question the sustainability of its dividend. Barron's questioned
Linn's accounting for its derivative contracts by excluding the
cost of its puts from its cash flow, while including the gains.
Following the May 2013 Barron's article, Linn units declined 7%,
to close at $35.75 per unit on May 6, 2013. In turn, LNCO shares
dropped nearly 8% to close at $39.24 per share on May 6, 2013.
On July 1, 2013, Linn and LNCO disclosed that the SEC had opened
an informal inquiry into LNCO's proposed merger with Berry, and
Linn and LNCO's hedging strategies and use of non-GAAP financial
measures (the same accounting issues for which Linn and LNCO had
been criticized by Barron's).
On this news, LNCO shares dropped $10.12 per share, or 27.3%,
within two trading sessions, to close at $26.95 per share on July
3, 2013.
If you purchased LinnCo shares between October 12, 2012, to
July 1, 2013, you may, no later than September 9, 2013, request
that the Court appoint you lead plaintiff. A lead plaintiff is a
class member that directs the litigation. Your share in any
recovery will not be affected by serving as a lead plaintiff. You
do not need to be a lead plaintiff to recover. You may retain
Milberg LLP, or other attorneys, for this action, but do not need
to retain counsel to recover. If this action is certified as a
class action, class members will be automatically represented by
Court-appointed counsel.
If you wish to discuss this matter with us, please contact the
following attorney:
Andrei Rado, Esq.
Milberg LLP
One Pennsylvania Plaza
49th Fl. New York, NY 10119-0165
Phone number: 800-320-5081
E-mail: arado@milberg.com
Milberg LLP -- http://www.milberg.com-- has represented
individual and institutional investors for over four decades and
serves as lead counsel in Courts throughout the United States.
LINNCO LLC: Wohl & Fruchter Files Class Action in New York
----------------------------------------------------------
The law firm of Wohl & Fruchter LLP has filed a class action
lawsuit against LinnCo, LLC, certain of LinnCo's officers and
directors, and the underwriters involved in LinnCo's initial
public offering (IPO) on October 12, 2012. The class action was
filed in the United States District Court, Southern District of
New York (13-cv-4790) on behalf of investors who purchased LNCO
shares in or traceable to LinnCo's IPO on October 12, 2012,
through July 1, 2013, both dates inclusive, and seeks damages
pursuant to Sections 11 and 15 of the Securities Act of 1933 for
defendants' false and misleading statements in the Registration
Statement and Prospectus filed with the SEC for the IPO.
If you are a shareholder who purchased LNCO shares during the
Class Period and wish to serve as a lead plaintiff, you have until
September 9, 2013 to seek appointment by the Court as lead
plaintiff for the class. To discuss the case or learn more about
becoming a lead plaintiff, please contact J. Elazar Fruchter, Esq.
at jfruchter@wohlfruchter.com or call us toll free at 866-582-
8140. A copy of the complaint filed by Wohl & Fruchter can be
obtained at: http://www.wohlfruchter.com/cases/lnco
As alleged in the complaint, LinnCo is a Delaware limited
liability company whose sole purpose is to own units representing
limited liability company interests in Linn Energy, LLC, an
independent natural gas exploration and production company whose
units trade on NASDAQ under the symbol "LINE."
On October 12, 2012, LinnCo filed its Prospectus for the IPO.
Including the underwriters' exercise of their over-allotment
option, 34,787,500 shares of LinnCo were sold pursuant to the IPO
at a price of $36.50 per share, raising approximately $1.2 billion
in net proceeds for the Company after underwriting discounts,
commissions, and fees. LinnCo used the net proceeds from the IPO
to acquire units in Linn equal to the number of shares sold in the
IPO.
As set forth in the Registration Statement, LinnCo has no
significant operations or assets other than its ownership of units
in Linn, and its cash flow consists exclusively of distributions
from Linn. Accordingly, LinnCo's ability to pay dividends to its
shareholders is entirely dependent upon the ability of Linn to
successfully generate cash flow from its business to make
distributions to its unitholders, including LinnCo.
As alleged in the complaint, defendants made false and misleading
statements in the Registration Statement with respect to, among
other things, Linn's ability to sustain or increase distributions
to LinnCo and other unitholders, and thereby misled investors
about the risk of their investment in LinnCo. Specifically, the
complaint alleges that certain non-GAAP metrics highlighted in the
Registration Statement (i.e., Adjusted EBITDA, Distribution
Coverage Ratio, and Distributable Cash Flow) as purportedly
reliable measures of Linn's ability to make distributions were
misleading because they did not, among other issues, reflect the
cost to Linn of certain settled put options.
In two articles published in February 2013 and in May 2013,
Barron's criticized Linn's accounting for its derivative contracts
pursuant to which Linn excluded the cost of settled put options
from Adjusted EBITDA and Distributable Cash Flow, even while
including the realized gains from such options in those metrics.
Barron's argued that this accounting practice enabled Linn to mask
weakness in its distributable cash flows, thereby calling into
question the sustainability of Linn's distribution rate.
Following the May 2013 Barron's article, LNCO shares dropped
nearly 8% to close at $39.24 per share on May 6, 2013.
On July 1, 2013, Linn and LinnCo disclosed that the SEC had opened
an informal inquiry into LNCO's proposed merger with Berry, and
Linn's and LinnCo's hedging strategies and use of non-GAAP
financial measures (the same accounting issues for which Linn and
LNCO had been criticized by Barron's).
On this news, LNCO shares dropped $10.12 per share, or 27.3%, over
two trading sessions, to close at $26.95 per share on July 3,
2013.
The class action filed by Wohl & Fruchter seeks damages for
investors who purchased LNCO shares during the Class Period on the
grounds that LNCO's share price was artificially inflated as a
result of the defendants' false and misleading statements in the
Registration Statement.
Wohl & Fruchter LLP -- http://www.wohlfruchter.com-- is a
securities litigation firm representing plaintiffs in class
actions arising from fraud and other fiduciary breaches by
corporate managers, as well as other complex litigation matters.
LOCKHEED MARTIN: Securities Class Action Witnesses Feel Squeeze
---------------------------------------------------------------
David Bario, writing for The Litigation Daily, reports that when
Lockheed Martin agreed to pay $19.5 million to settle a securities
class action over its financial disclosures back in February, The
Litigation Daily noted that Lockheed's defense counsel at DLA
Piper had spent much of the case trying to discredit the
plaintiffs' lawyers at Robbins Geller Rudman & Dowd. DLA's claims
never stuck, and the defense failed to get the case dismissed.
But allegations that Robbins Geller distorted confidential witness
testimony definitely got the judge's attention.
In a belated opinion issued on July 10, U.S. District Judge Jed
Rakoff in Manhattan described how heightened pleading standards
for securities class actions have created a tough situation for
confidential plaintiffs' witnesses -- not to mention litigants and
judges. Disaffected employees-turned witnesses are cajoled into
exaggerating potential wrongdoing by plaintiffs lawyers hoping to
beef up their complaints, Judge Rakoff wrote. Then, once the
witnesses' identities become known, they're squeezed by defendants
into recanting their testimony.
According to Judge Rakoff, that's exactly what happened in the
Lockheed case.
"In a nutshell, it appeared to the Court that some, though not
all, of the CWs had been lured by the investigator into stating as
'facts' what were often mere surmises, but then, when their
indiscretions were revealed, felt pressured into denying outright
statements they had actually made," Judge Rakoff wrote.
Even while criticizing several witnesses' respect for the truth,
Judge Rakoff determined on July 10 that only one clearly
inaccurate statement by a Robbins Geller witness wound up in the
complaint -- and only because of a drafting error. (That's
presumably why he denied Lockheed's motion for summary judgment on
the issue last December, in one of his trademark "bottom-line"
orders.) Moreover, Judge Rakoff wrote that witnesses who denied
their testimony under Lockheed's questioning had actually given
extensive statements to the plaintiffs' investigator.
And, wrote Judge Rakoff, strict pleading standards codified in the
Private Securities Litigation Reform Act and U.S. Supreme Court
cases like Tellabs v. Makor all but ensure that the confidential
witness song-and-dance will go on.
"It seems highly unlikely that Congress or the Supreme Court, in
demanding a fair amount of evidentiary detail in securities class
action complaints, intended to turn plaintiffs' counsel into
corporate 'private eyes' who would entice naive or disgruntled
employees into gossip sessions that might help support a federal
lawsuit," Judge Rakoff opined. "Nor did they likely intend to
place such employees in the unenviable position of having to
account to their employers for such indiscretions, whether or not
their statements were accurate. But, as it is, the combined
effect of the PSLRA and cases like Tellabs are likely to make such
problems endemic."
MERCK & CO: Recalls Hepatitis B Vaccine Recombivax HB
-----------------------------------------------------
David Sell, writing for Philly.com, reports that Merck & Co., said
on July 3 that it was recalling one lot of its hepatitis B vaccine
Recombivax HB that was made in West Point, Montgomery County,
because of fears that some of the vials could have cracked.
The U.S. Food and Drug Administration posted a notice of the
voluntary recall on its website. The medication is delivered via
injection.
"Merck's investigation concluded that for certain vials in the
affected lot, the potential exists for a crack to have occurred in
the vial," the FDA said in its statement. "If the vial was
cracked, the integrity of the vial and the sterility of any
product remaining in the vial could not be assured."
Merck's facilities in West Point handle some of the company's
research and development of medicine, along with some
manufacturing.
"A manufacturing issue related to the glass vial was identified
during packaging," Merck spokeswoman Lainie Keller wrote in an e-
mail. "The issue has been resolved and preventative measures are
in place, and this voluntary recall is being conducted with the
concurrence of the FDA. This recall does not affect Merck's
ability to supply the market. There is adequate inventory to
replace recalled product at this time."
The lot, numbered J001183, consisted of 27,020 vials of the adult
formulation and was distributed nationwide by Merck between March
12 and May 2, 2013. Merck also makes a version for children.
Ms. Keller said she could not say which wholesalers or pharmacies
or doctors got the medicine.
Hepatitis, which involves inflammation of the liver, has several
forms.
The Centers for Disease Control and Prevention website says an
estimated 800,000 to 1,400,000 people in the United States have
chronic hepatitis B virus infection, though many do not know it.
Worldwide, chronic hepatitis B affects about 350 million people
and contributes to an estimated 620,000 deaths worldwide each
year.
The CDC says hepatitis B in the United States has decreased 82
percent since 1990, when routine vaccinations of children began.
MONSANTO CO: Vows to Defend Suits Over Genetically Modified Wheat
-----------------------------------------------------------------
The Inquisitr reports that Monsanto GMO wheat has prompted yet
another lawsuit. Kansas wheat farmer Bill Budde filed legal
documents seeking a class action suit against biotech giant
Monsanto in a federal courthouse on July 5.
Genetically modified wheat lawsuits have also been filed against
Monsanto in both Washington State and Idaho. After the discovery
of genetically engineered wheat in an Oregon field in May, crop
prices experienced a significant decline. International wheat
buyers cancelled orders due to concerns about possible
contamination of the staple crop. Unlike the United States, a
multitude of other nations boast strict rules against GMO crop
growing and importation.
The Harvey County wheat farmer's Monsanto lawsuit is at least the
third such legal action since the discovery of the GE wheat in
Oregon, according to KSHB News. The biotech giant continues to
maintain that none of the genetically modified wheat ever entered
the market either in America or abroad. As previously reported by
The Inquisitr, some of the GMO wheat from the 2005 field test was
stored at a government-controlled facility in Colorado.
Monsanto further contends that the company has no legal liability
in relation to the GMO wheat found in an Oregon field due to the
"care undertaken" in associated with the genetically modified
crop. The St. Louis-based business has also vowed to put on a
vigorous defense to all of the emerging GE wheat lawsuits.
Anti-GMO protests and grassroots movements on social networks may
have hit Monsanto in the pocketbook. A Reuters report notes that
the Roundup Ready company's quarterly profits fell. Although
sales may have taken a dip recently, the company states that sales
remain on an upswing. Approximately 90 percent of the corn
currently growing in fields across America stem from GMO seeds.
MPG OFFICE: Preferred Shareholders File Class Action in Maryland
----------------------------------------------------------------
Kessler Topaz Meltzer & Check, LLP on July 11 disclosed that a
preferred shareholder of MPG Office Trust, Inc. has filed a class
action lawsuit challenging the proposed merger between MPG Office
Trust and affiliates of Brookfield Office Properties Inc. and the
open tender offer by Brookfield for the preferred shares.
The Circuit Court of Baltimore City, Maryland has scheduled a
hearing for July 24, 2013 on the preferred shareholder's request
for an injunction preventing the closing of the tender offer and
the merger. MPG and Brookfield have agreed not to close either
until the court has ruled on the shareholder's injunction request.
On April 25, 2013, MPG and Brookfield announced their planned
merger and their agreement that Brookfield would make a tender
offer for all of MPG's outstanding preferred stock. MPG has not
paid any dividends to its preferred shareholders since 2008 and,
under the contract governing the preferred stock, the preferred
shareholders are owed more than $9.00 per share in accrued and
unpaid dividends. Brookfield's tender offer, however, offers the
preferred shareholders nothing for their accrued and unpaid
dividends. For those preferred shareholders who do not
participate in the tender offer, their preferred stock will be
canceled and converted into new preferred stock of a Brookfield-
controlled entity, and Brookfield will decide whether, if at all,
to pay any of the accrued and unpaid dividends to the non-
tendering preferred shareholders. The tender offer was scheduled
to close on July 17, 2013, and MPG's common shareholders are
voting on the merger on that day as well.
In the class action lawsuit, preferred shareholders allege that
the tender offer and merger, as structured, both violate the terms
of the contract governing the preferred stock, because the
contract had promised preferred shareholders that their shares
would never be "converted" without their consent. The plaintiff
also alleges that the tender offer is wrongfully coercive and
unlawful, because preferred shareholders are forced to choose
between tendering their shares and foregoing $9.00 in dividends
owed to them, or converting their shares into Brookfield shares.
The plaintiff seeks to represent all of the preferred shareholders
affected by the tender offer and the merger, and seeks an
injunction preventing the closing of both transactions until they
are restructured so as to comply with the preferred stock
contract. On July 9, 2013, the Circuit Court for Baltimore City,
Maryland (Judge Michel Pierson) scheduled a preliminary injunction
hearing for July 24, 2013, on the condition that the closing of
the tender offer and merger be held open pending his decision.
Plaintiffs are represented by Lee Rudy and Michael Wagner of
Kessler Topaz Meltzer & Check and Joe White and Jonathan Stein of
Saxena White. MPG's preferred shareholders are urged not to
tender their shares to Brookfield while the injunction proceedings
move forward in the Maryland court. Preferred shareholders
seeking more information concerning this lawsuit are urged to
contact attorneys for plaintiff below.
Darren Check, Esq.
Michael Wagner, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: 610-667-7706
E-mail: dcheck@ktmc.com
mwagner@ktmc.com
MPG OFFICE: Enters Into Class Action Settlement MoU
---------------------------------------------------
MPG Office Trust, Inc. on July 10 disclosed that it and other
named defendants have entered into a memorandum of understanding
("MOU") with plaintiffs' counsel in connection with the previously
consolidated putative common stockholder class action lawsuits
filed in Maryland and California state court in connection with
the proposed acquisition of MPG by Brookfield Office Properties
Inc. ("BPO").
Under the terms of the MOU, MPG will (i) provide additional
disclosures in an amendment to its proxy statement (such amendment
to be filed with the Securities and Exchange Commission (the
"SEC") on July 10, 2013), (ii) amend the Agreement and Plan of
Merger (as amended by that certain Waiver and First Amendment to
Agreement and Plan of Merger, the "Merger Agreement") between MPG
and certain affiliates of BPO to permit the Company to release
third parties currently subject to confidentiality agreements with
the Company from any standstill restrictions contained in such
agreements and (iii) file a Current Report on Form 8-K with
respect to such additional disclosures, the MOU and the Merger
Agreement amendment. The MOU reflects the parties' agreement in
principle to resolve the allegations by settling the common
stockholder plaintiffs' actions against MPG and other defendants
in connection with the Merger Agreement and provides a release and
settlement by the purported class of MPG's common stockholders of
all claims against MPG and other defendants and their affiliates
and agents in connection with the Merger Agreement. On July 10,
2013, in connection with the MOU, MPG entered into an amendment to
the Merger Agreement that amends the standstill provisions of the
Merger Agreement to permit MPG to release third parties currently
subject to confidentiality agreements with MPG from any standstill
restrictions contained in such agreements. Accordingly, the
Company has waived all standstill restrictions contained in those
third party confidentiality agreements. The MOU and settlement
are contingent upon, among other things, approval of the Superior
Court of the State of California in Los Angeles County, further
definitive documentation and consummation of the merger as set
forth in the Merger Agreement. In the event that the MOU is not
approved and such conditions are not satisfied, the Company will
continue to vigorously defend these actions.
About Brookfield Office Properties Inc.
Brookfield Office Properties owns, develops and manages premier
office properties in the United States, Canada, Australia and the
United Kingdom. Its portfolio is comprised of interests in 111
properties totaling 76 million square feet in the downtown cores
of New York, Washington, D.C., Houston, Los Angeles, Denver,
Seattle, Toronto, Calgary, Ottawa, London, Sydney, Melbourne and
Perth, making it the global leader in the ownership and management
of office assets. Landmark properties include Brookfield Places
in New York City, Toronto and Perth, Bank of America Plaza in Los
Angeles, Bankers Hall in Calgary, and Darling Park in Sydney. The
company's common shares trade on the NYSE and TSX under the symbol
BPO. For more information, visit
www.brookfieldofficeproperties.com.
About MPG Office Trust, Inc.
MPG Office Trust, Inc. -- http://www.mpgoffice.com-- is the
largest owner and operator of Class A office properties in the Los
Angeles central business district. MPG Office Trust, Inc. is a
full-service real estate company with substantial in-house
expertise and resources in property management, leasing, and
financing.
NAT'L FOOTBALL: Super Bowl Class Action Denial Not End of Dispute
-----------------------------------------------------------------
Jeff Mosier, writing for The Dallas Morning News, reports that the
denial of class-action status for the Super Bowl XLV seating
lawsuit probably tilts the playing field toward the NFL. But it
doesn't mean the legal fight is over.
Nearly 2-1/2 years after litigation started, the lawsuit could be
settled quickly after the ruling. Or it could continue as the
plaintiffs' attorney announced. Fans are suing over the failure
to complete temporary seats for the 2011 Super Bowl at Cowboys
Stadium in Arlington and over obstructed-view seats.
Lead attorney Michael Avenatti said in a written statement on
July 9 that he'd move forward with trials for the hundreds of
clients he represents. He was traveling on July 10 and could not
be reached for further comment.
Legal experts said class certification often persuades defendants
to settle, while failure to certify often convinces plaintiffs
that continuing is too costly. Law professors familiar with
class-action law laid out potential directions the litigation
could take.
"For the plaintiffs' lawyer, it has made litigating this case a
lot more expensive," said Beth Thornburg, a law professor at
Southern Methodist University's Dedman School of Law. "It's
entirely possible that a lot of the plaintiffs have claims that
are so small that they don't justify the cost of individual
trials."
Mr. Avenatti has 14 days to attempt to appeal U.S. District Judge
Barbara Lynn's ruling. However, that might not even be permitted.
Brian Fitzpatrick, a law professor at Vanderbilt Law School in
Nashville, Tenn., said the plaintiffs could petition the 5th U.S.
Circuit Court of Appeals to allow them to appeal. That permission
might not be granted.
If that failed, the next decision would be how to proceed with
multiple lawsuits or to settle with the NFL. The league already
settled with many fans, offering deals that included future Super
Bowl tickets and reimbursement of expenses.
Mr. Avenatti wouldn't need to litigate each case separately,
though, said Lonny Hoffman, associate dean and professor at the
University of Houston Law Center. The cases could be split into
groups with similar claims, such as fans who were displaced,
delayed getting into the stadium or had obstructed views.
Mr. Hoffman said one benefit to a class action lawsuit is that the
attorney represents all members of a group unless they opt out.
If the lawsuits are filed individually or in groups, the
plaintiffs would have to opt in.
"The practical matter is you're never going to get 100 percent
participation," he said.
Separate cases
Mr. Hoffman said class action lawsuits are particularly helpful in
litigating cases in which the number of plaintiffs is unmanageably
large or the damages for each individual are too small to litigate
individually.
"It plays a very valuable role in helping people get their rights
vindicated when the amount of money is otherwise so small that you
can't justify doing something individually," Mr. Hoffman said.
Mr. Fitzpatrick said one approach available could be litigating a
few of the plaintiffs' cases and using those as precedents.
"Everyone else could take advantage of the victory and when they
file their individual cases, they could say the NFL cannot re-
litigate what they lost against the other fans," Mr. Fitzpatrick
said. He said other plaintiffs would still have to prove their
individual damages, which could be costly.
"You're not going to spend too much attorney time per person if
you're going to get one-third of $5,000," Mr. Fitzpatrick said.
He said that if the case had received certification, there's a
possibility that a formula could have been used to figure out
damage rather than having all plaintiffs testify and prove their
expenses.
The judge, however, wrote that a class-action lawsuit in this case
would "devolve" into a series of mini-trials to determine damages.
Other possibilities
Ms. Thornburg said she sees even more paths this could take. She
said the lawsuit could potentially be kicked out of federal court
and back into the state court system. All the claims left in the
lawsuit involved alleged violations of state law.
If it goes back to state court, the case could start over again.
There, Mr. Avenatti could attempt to get class action status. That
would also give plaintiffs the chance to win some rulings they
lost in federal court. Many of their claims were dismissed by
Judge Lynn, and the Dallas Cowboys were eliminated as defendants.
Despite the additional hurdles, Ms. Thornburg said she would be
surprised to see the plaintiffs back off after more than two years
of legal work.
"At this point, the lawyers have sunk a lot of time and money into
getting this far," she said.
NOVA SCOTIA HOME: Province's Lawyer Says Class Action Unsuitable
----------------------------------------------------------------
Eva Hoare, writing for The Chronicle Herald, reports that the
"tangled web" of issues at the Nova Scotia Home for Colored
Children makes a class action totally unsuitable, the province
charged on July 11 in Nova Scotia Supreme Court.
Instead, provincial lawyer Catherine Lunn suggested the court
system carry on with the 56 individual lawsuits alleging physical,
sexual and emotional abuse. Those lawsuits were begun over a
decade ago, with two heading to trial in 2014.
"This is going to take years in the proposed class action
structure," Ms. Lunn told Justice Arthur LeBlanc during the
province's final summations in the certification hearings.
"It's a thousand pieces to match. The attorney general submits it
cannot be done," she said.
"It's unworkable and unmanageable."
Ms. Lunn and the province's other lawyer, Peter McVey, spent most
of the morning on July 11 telling the court the proposed class
action against the government doesn't meet legal tests required to
go forward.
The individual claims alone are so diverse that a common issues
trial can't proceed, Ms. Lunn said. Former residents at the
facility near Dartmouth had differing situations, from how they
arrived at the orphanage, who allegedly abused them while they
were there and where the alleged abuse occurred, she said.
In other cases, some went in and out of foster care during their
time at the orphanage, she said.
"There's no commonality. No two claims are alike."
Ms. Lunn also said laws changed substantially over the time frame
listed for the class action. A World War came and went and the
country went through anti-inflation measures, and child welfare
laws and statutes also changed, Ms. Lunn said.
"It's different times now."
The period proposed for the class action is 1921 to 1990, but the
province is trying to narrow the nearly 70-year stretch. Instead,
the province wants the time period to run from 1951 to 1987.
Ms. Lunn asserted that individual trials would be the most
expedient way to deal with the entire case, adding that she
doesn't agree with the residents' lawyers that legal procedures
have dragged on.
"Many of those actions have been sitting idle for years," Ms. Lunn
claimed.
She also reiterated arguments the province has already filed about
the suitability of the leading claimants in the case, saying
Deanna Smith, Harriet Johnson and June Elwin don't meet the proper
legal tests to represent the residents.
Ms. Lunn said that Ms. Smith, for example, alleges she was forced
to take part in sex shows at the orphanage, but she is in
"conflict" since she says she was also abused by fellow residents.
Later, Mr. McVey said the province wasn't there to "critique"
those three residents but is purely being objective in citing
legal criteria.
"Ms. Elwin, Ms. Johnson and Ms. Smith are to be commended for
coming forward," he told the court.
He also said Wagners' law firm, representing the residents, has
done an excellent job making their case, but there are just too
many "inadequacies" for it to go forward.
Residents' lawyers Ray Wagner and Mike Dull were slated to speak
on July 12, the final day of the certification hearings.
After that, LeBlanc will decide whether to certify. It's likely
he'll reserve his decision.
NOVA SCOTIA HOME: Province's Letters Admitted as Evidence
---------------------------------------------------------
Eva Hoare, writing for Herald News, reports that letters that
could undermine the province's case against a proposed class
action involving the Nova Scotia Home for Colored Children were
allowed into evidence on July 10.
Justice Arthur LeBlanc made the ruling after lawyers for the
province battled in Nova Scotia Supreme Court against their
admission.
One letter in particular, from Peter McVey, the province's lawyer
on the case, appeared to directly connect Children's Aid Societies
to government. It said the societies were an "administrative arm"
of government.
On the face of it, that seems to contradict the province's long-
held stance that it wasn't linked to the societies, one of which
ran the home, and therefore wasn't liable for any abuses that
allegedly happened there.
But Justice LeBlanc decided to let that letter and another, which
also states the province had an oversight role in the societies'
operation, into the court record.
"If these are admissions of fact, . . . then they are to be
admitted for the truth of the admission," Justice LeBlanc said,
adding they're "probative and are not prejudicial."
He said the letters would carry less weight if they were deemed
"legal" admissions.
Justice LeBlanc said he would reserve his decision on whether the
letters would be labeled as findings of fact or legal admissions.
It wasn't clear when that decision would come, but Ray Wagner, who
represents the residents, said a ruling could be wrapped into the
final certification decision or made on its own.
If the letters are deemed to be "fact," then they'll have a "much
more powerful impact" on his case, Mr. Wagner said. "We would
argue the issue has been decided for all time."
Mr. McVey had wanted the letters barred, saying they weren't
relevant. He said his was written in 2011 and applied only to the
present-day situation.
But Mr. Wagner disagreed, saying Mr. McVey's missive was part of a
string of letters that dealt with abuse going back decades.
Mr. McVey also said the information in the letters is contained in
statutes already in the judge's possession.
If the case could be argued on such statutes, Mr. Wagner, on
rebuttal, said his team has already met the criteria for
certification.
"We've accomplished our goals (from) what we've heard today," he
said.
Catherine Lunn, the other provincial lawyer on the case, contended
that the law states the province has legal immunity from being
sued for anything that happened before Nov. 1, 1951. As a result,
she argued the time frame for the proposed class action should be
limited to between 1951 and the late 1980s.
Right now, the time frame extends from 1921 to 1990.
Ms. Lunn said Nova Scotia is one of the few provinces that didn't
adopt a British-made workaround that allowed people to sue the
Crown via a "right of petition."
Outside court, Mr. Wagner said the action, which involves two
clients who were at the home before the 1950s, could still proceed
on other grounds, such as a breach of fiduciary duty.
And, in some cases, the alleged abuse spanned from before 1951
into the 1950s, meaning it's still eligible, he said.
Because the case is so diverse, with residents alleging abuse at
the hands of other residents, Ms. Lunn said there is a "conflict."
As a result, she said it shouldn't be allowed to proceed.
Ms. Lunn also appeared to lament the amount of time a class action
could take.
"I've had a researcher working for almost two years at the
archives (on) document production," Ms. Lunn told Justice LeBlanc.
She suggested a few "test cases" should go forward instead.
Justice LeBlanc wondered how the length of a class action would
differ from the amount of time Wagner has said the 56 concurrent
individual home cases would take to wend their way through the
court system.
Mr. Wagner has previously said he would be at least 114 years old
before the individual home cases ended and a class action is the
most efficient way to proceed.
On alleged underfunding at the orphanage, Mr. McVey said
politicians made "economic" decisions when turning down some
financial requests, and discrimination had nothing to do with it.
In many cases, the home's board secured more money after asking
government for it, he said, adding that per diem rates went up
from 1977 through to 1979.
"Is this evidence of underfunding, of discrimination, as alleged?"
the provincial lawyer asked.
The case was set to resume on July 10 and run through July 12.
PACIFIC SUNWEAR: "Pfeiffer" Class Suit in Discovery Phase
---------------------------------------------------------
Pacific Sunwear of California, Inc., is currently in the discovery
phase of the case, Charles Pfeiffer, individually and on behalf of
other aggrieved employees vs. Pacific Sunwear of California, Inc.,
and Pacific Sunwear Stores Corp., Superior Court of California,
County of Riverside, Case No. 1100527, according to the Company's
June 7 Form 10-Q filing for the quarterly period ended May 4,
2013.
On January 13, 2011, the plaintiff filed a lawsuit against the
Company under California's private attorney general act alleging
violations of California's wage and hour, overtime, meal break and
rest break rules and regulations, among other things. The
complaint seeks an unspecified amount of damages and penalties.
The Company has filed an answer denying all allegations regarding
the plaintiff's claims and asserting various defenses.
PACIFIC SUNWEAR: "Beeney" Class Suit in Discovery Phase
-------------------------------------------------------
Pacific Sunwear of California, Inc., is currently in the discovery
phase of the case, Tamara Beeney, individually and on behalf of
other members of the general public similarly situated vs. Pacific
Sunwear of California, Inc. and Pacific Sunwear Stores
Corporation, Superior Court of California, County of Orange, Case
No. 30-2011-00459346-CU-OE-CXC, according to the Company's June 7
Form 10-Q filing for the quarterly period ended May 4, 2013.
On March 18, 2011, the plaintiff filed a putative class action
lawsuit against the Company alleging violations of California's
wage and hour, overtime, meal break and rest break rules and
regulations, among other things. The complaint seeks class
certification, the appointment of the plaintiff as class
representative, and an unspecified amount of damages and
penalties. The Company has filed an answer denying all allegations
regarding the plaintiff's claims and asserting various defenses.
PEPSICO INC: Tropicana Loses Bid to Dismiss Labeling Class Action
-----------------------------------------------------------------
Naturally Savvy reports that amidst the discussion of deceptive
and scary ingredient labels lie offenders accused of misleading
consumers into thinking they're making healthy choices. A member
of the PepsiCo family, Tropicana has been accused of falsely
labelling their orange juice, and "has failed in its bid to
dismiss a US class action that claims it falsely labeled its
orange juice as "100% pure and natural" despite pasteurization,
processing, coloring and flavoring," reports Beverage Daily.
US District Judge Dennis Cavanaugh of New Jersey, delivered his
opinion last month after Tropicana filed a motion to dismiss the
class action suit last September.
The plaintiffs in the case are concerned with the manufacturing
process of the popular juice beverage, which includes it being
"pasteurized, deaerated, stripped of flavor and aroma, stored for
long periods of time before [being made] available to the public,
and colored and flavored before being packaged," Beverage Daily
reports.
Lead counsel Caroline Bartlett stated, "We were pleased [with] the
decision, which was very thorough and well-reasoned, and we're
looking forward to the next stage, which is discovery, and to
presenting our case."
Dennis Lynch is one of seven who purchased the orange juice and
believe that Tropicana should have disclosed the addition of
flavoring in their ingredients label. Mr. Lynch also claims that
the "100% pure and natural" statement is misleading and ultimately
false. Mr. Lynch and the other consumers who filed the suit also
point to the notable image that Tropicana uses on its packaging
and in ads: an orange with a straw in it. They claim that is
another way that the brand misleads customers into thinking they
are buying a freshly-squeezed and pure juice product.
"Tropicana will now file an answer to an amended complaint on
August 5, given that Cavanaugh dismissed two counts against
Tropicana but allowed 10 to go forward," reports Beverage Daily.
PETSMART INC: "Adkins" Class Suit Remains Pending in Illinois
-------------------------------------------------------------
The class action lawsuit titled Adkins, et al. v. Nestle Purina
PetCare Company, et al., remains pending in Illinois, according to
PetSmart, Inc.'s May 30, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 5,
2013.
On December 22, 2012, a customer filed a lawsuit against the
Company captioned Matin, et al. v. Nestle Purina PetCare Company,
et al. in the United States District Court for the Northern
District of California. The plaintiff claims he purchased jerky
treats containing duck or chicken imported from China that caused
injury to his pet, and he seeks to assert claims on behalf of a
nationwide class of consumers. The Company tendered the claim to
Nestle Purina, and Nestle Purina is currently defending the case
on the Company's behalf. The case was subsequently transferred to
the Northern District of Illinois and consolidated with another
case involving the same products, Adkins, et al. v. Nestle Purina
PetCare Company, et al.
PetSmart, Inc. -- http://www.PetSmart.com/-- is a specialty
provider of products, services and solutions for the lifetime
needs of pets in North America. The Company offerd a broad
selection of products for all the life stages of pets, as well as
various pet services including professional grooming, training,
day camp for dogs, and boarding. The Company was incorporated in
Delaware and is headquartered in Phoenix, Arizona.
PETSMART INC: Continues to Defend "Moore" Suit in California
------------------------------------------------------------
PetSmart, Inc., continues to defend itself against a class action
lawsuit filed by Moore, et al., according to the Company's May 30,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended May 5, 2013.
In May 2012, the Company was named as a defendant in Moore, et al.
v. PetSmart, Inc., et. al., a lawsuit originally filed in
California Superior Court for the County of Alameda. PetSmart
removed the case to the United States District Court for the
Northern District of California. The complaint brings both
individual and class action claims, first alleging that PetSmart
failed to engage in the interactive process and failed to
accommodate the disabilities of four current and former named
associates. The complaint also alleges on behalf of current and
former hourly store associates that PetSmart failed to provide pay
for all hours worked, failed to properly reimburse associates for
business expenses, and failed to provide timely and uninterrupted
meal and rest periods. The lawsuit seeks compensatory damages,
statutory penalties, and other relief, including attorneys' fees,
costs, and injunctive relief.
PetSmart, Inc. -- http://www.PetSmart.com/-- is a specialty
provider of products, services and solutions for the lifetime
needs of pets in North America. The Company offerd a broad
selection of products for all the life stages of pets, as well as
various pet services including professional grooming, training,
day camp for dogs, and boarding. The Company was incorporated in
Delaware and is headquartered in Phoenix, Arizona.
PETSMART INC: Defends "McKee" Collective Action in Delaware
-----------------------------------------------------------
PetSmart, Inc., is defending a collective action brought by McKee,
et al., in Delaware, according to the Company's May 30, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended May 5, 2013.
In September 2012, a former associate named the Company as a
defendant in McKee, et al. v. PetSmart, Inc., which is currently
pending before the United States District Court for the District
of Delaware. The case seeks to assert a Fair Labor Standards Act
collective action on behalf of PetSmart's operations managers and
similarly situated employees. The complaint alleges that PetSmart
has misclassified operations managers as exempt and as a result
failed to pay them overtime for hours worked in excess of forty
hours per week. The plaintiffs seek compensatory damages,
liquidated damages, and other relief, including attorneys' fees,
costs, and injunctive relief.
PetSmart, Inc. -- http://www.PetSmart.com/-- is a specialty
provider of products, services and solutions for the lifetime
needs of pets in North America. The Company offerd a broad
selection of products for all the life stages of pets, as well as
various pet services including professional grooming, training,
day camp for dogs, and boarding. The Company was incorporated in
Delaware and is headquartered in Phoenix, Arizona.
PETSMART INC: Defends "Miller" Suit in Eastern District of Calif.
-----------------------------------------------------------------
PetSmart, Inc., is defending a lawsuit brought by four former
managers in California, according to the Company's May 30, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended May 5, 2013.
On December 14, 2012, a group of four former managers filed a
lawsuit against the Company captioned Miller, et al. v. PetSmart,
Inc. in the United States District Court for the Eastern District
of California. The plaintiffs seek to assert claims on behalf of
hourly and exempt store management personnel from December 14,
2008, to the present for alleged unreimbursed mileage expenses.
The lawsuit seeks compensatory damages, statutory penalties, and
other relief, including attorneys' fees, costs, and injunctive
relief.
PetSmart, Inc. -- http://www.PetSmart.com/-- is a specialty
provider of products, services and solutions for the lifetime
needs of pets in North America. The Company offerd a broad
selection of products for all the life stages of pets, as well as
various pet services including professional grooming, training,
day camp for dogs, and boarding. The Company was incorporated in
Delaware and is headquartered in Phoenix, Arizona.
PETSMART INC: Defends "Negrete" Suit Brought in California
----------------------------------------------------------
PetSmart, Inc., is defending a lawsuit brought by former groomers
styled Negrete, et al. v. PetSmart, Inc., according to the
Company's May 30, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended May 5, 2013.
In September 2012, a former groomer filed a lawsuit against the
Company captioned Negrete, et al. v. PetSmart, Inc. that is
currently pending in the California Superior Court for the County
of Shasta. The plaintiff seeks to assert claims on behalf of
current and former California pet stylists that PetSmart failed to
provide pay for all hours worked, failed to properly reimburse
associates for business expenses, failed to provide proper wage
statements, and failed to provide timely and uninterrupted meal
and rest periods. The lawsuit seeks compensatory damages,
statutory penalties, and other relief, including attorneys' fees,
costs, and injunctive relief.
PetSmart, Inc. -- http://www.PetSmart.com/-- is a specialty
provider of products, services and solutions for the lifetime
needs of pets in North America. The Company offerd a broad
selection of products for all the life stages of pets, as well as
various pet services including professional grooming, training,
day camp for dogs, and boarding. The Company was incorporated in
Delaware and is headquartered in Phoenix, Arizona.
PETSMART INC: Bid to Amend "Pace" Complaint Remains Pending
-----------------------------------------------------------
The plaintiff's motion to amend her complaint in the class action
lawsuit styled Pace v. PetSmart, Inc., remains pending, according
to the Company's May 30, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended May 5,
2013.
On February 20, 2013, a former employee filed a complaint in the
Superior Court of California for the County of Orange captioned
Pace v. PetSmart, Inc. PetSmart removed the case to the United
States District Court for the Central District of California. The
complaint seeks to certify a class of all former PetSmart
employees in California since February 20, 2010, who were not paid
all wages owed upon their separations. The complaint also
challenges PetSmart's use of pay cards for separation payments and
seeks waiting time penalties, attorneys' fees, and other relief.
The plaintiff is currently seeking to amend her complaint to
assert additional claims under California's Private Attorney
General Act as well as individual claims for wrongful termination
and disability discrimination.
PetSmart, Inc. -- http://www.PetSmart.com/-- is a specialty
provider of products, services and solutions for the lifetime
needs of pets in North America. The Company offerd a broad
selection of products for all the life stages of pets, as well as
various pet services including professional grooming, training,
day camp for dogs, and boarding. The Company was incorporated in
Delaware and is headquartered in Phoenix, Arizona.
PILOT FLYING J: Wright Transportation Files Class Action
--------------------------------------------------------
WBIR.com reports that another class action suit has been filed
against Pilot Flying J claiming fraud with its diesel fuel rebates
and discounts.
Wright Transportation, Inc., based in Mobile, Alabama, filed the
suit against the Knoxville-based truck stop company on July 10.
The suit names Pilot Chairman and CEO Jimmy Haslam along with
employees John Freeman, Brian Mosher, and Mark Hazelwood.
The suit accuses Pilot of violating federal racketeering laws and
engaging in deceptive trade practices.
This suit marks the 20th claiming Pilot "systematically
shortchanged" and targeted smaller and financially unsophisticated
trucking companies.
The suit also claims Jimmy Haslam gave his blessing to employees
who were boosting profits both for themselves and the company
making the defrauding part of the company culture.
Wright Transportation says it entered into a discount contract
with Pilot in 2005.
It wants an independent accounting investigation to reclaim the
funds it claims it is owed.
The company is asking for a jury trial in Alabama.
PILOT FLYING J: New Hampshire Truck Driver Files Class Action
-------------------------------------------------------------
Clarissa Kell-Holland, writing for Land Line, reports that a
New Hampshire truck driver has filed a class action complaint
against the nation's largest truck stop chain, bringing the total
number to 19 lawsuits filed Pilot Flying J since news of an
alleged fuel rebate scheme broke in April.
Fred Woodward, an owner-operator from Epping, N.H., filed the
complaint in U.S. District Court on Tuesday, July 9.
According to court documents, Mr. Woodward had a payback preferred
customer card with Pilot, and alleges in his complaint that he,
along with other customers, paid "substantially more for diesel
fuel than the agreed-upon price."
Pilot spokesman Tom Ingram of the Ingram Group told Land Line on
July 8 that Pilot's Chief Executive Officer James "Jimmy" Haslam
and other employees have contacted "in the neighborhood of 400
(trucking companies) personally" as well as many more through
written communication.
Five Pilot employees have pleaded guilty to fraud charges
admitting their involvement in an alleged scheme to manually
reduce the rebate amounts trucking company customers were supposed
to receive. The FBI and Internal Revenue Service raided the
company's headquarters in Knoxville, Tenn., on April 15.
Trucking companies affected by the alleged rebate scheme had
contracts with Pilot to either receive a rebate check each month
or be direct billed and sent an invoice for fuel purchases.
According to Mr. Woodward's complaint, which seeks class action
status, Pilot diesel fuel sales staff allegedly "targeted
customers who utilized non-party credit lines such as TCheck, who
were referred to as 'low hanging fruit.'" He claims the company
also intentionally withheld pricing information from its customers
"who made inquiries about the rebate amounts they received."
In his complaint, Mr. Woodward alleges Pilot engaged in
conversion, violated the Racketeer Influenced and Corrupt
Organization Act, and committed breach of contract. He alleges
that he and others in the putative class have "suffered
ascertainable economic harm in excess of $5 million."
PLEASANT VALLEY, CA: Prison Faces Class Action Over Valley Fever
----------------------------------------------------------------
Rebecca Plevin, writing for Valley Public Radio, reports that
lawyers representing inmates at Pleasant Valley State Prison in
Fresno County and Avenal State Prison in Kings County filed a
class action lawsuit in U.S. District Court on July 9.
The suit is on behalf of black, elderly, and immune-compromised
inmates who acquired valley fever since July 2009, while serving
time at the two institutions.
The complaint alleges that state and prison officials knew these
groups were at high-risk of contracting the serious, potentially
fatal form of the disease, but failed to take adequate steps to
protect them.
The suit contends that officials violated these inmates'
constitutional protections against cruel and unusual punishment,
equal protection and disparate treatment.
Jason Feldman is one of the lawyers who filed the suit. He says
the complaint seeks compensation for inmates sickened by valley
fever, and lifelong access to medical care after they're released
from prison.
He says inmates were convicted of a crime but, "they didn't buy in
for a chronic illness that will never go away, that could kill
them, and greatly affects their quality of life."
This isn't the first time the courts will be considering the
impact of valley fever on area inmates.
Last summer, the U.S. government, while admitting no fault, agreed
to a $425,000 settlement with a former inmate who acquired the
disease while serving time at the Taft Correctional Institution in
Kern County.
And last month, a federal judge ordered the state prison system to
comply with an order to remove inmates at high-risk of contracting
the serious form of valley fever from Pleasant Valley and Avenal
state prisons.
RADIOSHACK CORP: $1MM From Settlement Goes to Lawyers' Fees
-----------------------------------------------------------
Ted Frank, an adjunct fellow at the Manhattan Institute Center for
Legal Policy, in an article for PointofLaw.com, says "You may
recall that the Center for Class Action Fairness won a big victory
in May shutting down a tendentious interpretation of the Class
Action Fairness Act that evaded the statute's intent in limiting
coupon settlements to those that actually produced usable
coupons."
"The panel decision was 2-1, and that encouraged en banc
petitions. We opposed the en banc petition, and Ninth Circuit
denied the motion [July 8], with only one judge (the dissent,
Judge Berzon) requesting en banc rehearing.
"We're encouraged, and the victory will likely help us in two or
three other pending Ninth Circuit appeals we have, as well as a
case in the Northern District of Illinois."
But the victory does little good if district courts and settling
parties continue to ignore the plain language of CAFA. Take, for
instance, the settlement in Redman v. Radio Shack Corp., No.
11-cv-06741 (N.D. Ill.). The settlement provides $1M in
attorneys' fees and $10 coupons to the class, without any
mechanism to track redemptions. Of course, there will be nowhere
near the hundreds of thousands of claims comprising "settlement
value," so the settlement also provide cy pres of leftover
coupons. Except Section 1712(e) of the Class Action Fairness Act
explicitly prohibits the use of cy pres coupons for calculating
fee awards.
The settlement class is defined as
"All persons who, between August 24, 2010 and November 21, 2011,
paid by credit or debit card for products or services and received
an electronically-printed receipt from any Store that contained
the expiration date of the person's credit or debit card.
"Excluded from the Settlement Class are Defendant, its officers,
employees, and attorneys; transactions conducted with business
credit or debit cards; and transactions made with RadioShack-
branded debit or credit cards, as those cards do not contain
expiration dates."
One hopes a class member aggrieved by this lawyers-first
settlement will contact a non-profit attorney willing to help them
object to such an unfair settlement.
RadioShack agreed to pay up to $5.3 million to settle alleged
violations of a federal law barring a credit card's expiration
date from being printed on a sales receipt (Class Action Reporter,
July 10, 2013).
SAFEWARE INC: Faces Product Liability Suit Over Safety Mask Defect
------------------------------------------------------------------
Jon Campisi, writing for The Pennsylvania Record, reports that a
former Philadelphia firefighter has filed a products liability
complaint against the makers of a safety mask that he contends
failed while in the midst of fighting a fire two years ago, an
incident that led the plaintiff to develop a host of injuries,
including near-fatal smoke inhalation.
Michael McGuire and his wife, Angelique, who reside in Northeast
Philadelphia, are suing North Carolina-based Scott Technologies
Inc., Princeton, N.J.-based Tyco International Inc., and
Huntingdon Valley, Pa.-based Safeware Inc. over on-the-job
injuries Michael McGuire allegedly sustained back on March 2,
2011.
According to the complaint, which was filed on June 18 at the
Philadelphia Court of Common Pleas by attorneys with the
Philadelphia injury firm Saltz, Mongeluzzi, Barrett & Bendesky,
Michael McGuire was using his Scott AV-2000 respiratory protection
mask while battling a city blaze when he became ill after the mask
failed due to an improper seal.
The incident caused the plaintiff to lose oxygen and inhale carbon
monoxide and other noxious gasses and chemicals, the suit alleges.
In addition to the near-fatal smoke inhalation, McGuire also
suffered carbon monoxide poisoning, a severe lung smoke inhalation
injury, hypoxemic respiratory failure, acute respiratory distress
syndrome, delirium, cardiomyopathy, post-intensive care syndrome,
rhabdomyolosis, persistent muscle weakness, memory impairment,
pneumonia, recurrent lung infections, residual lung disease,
decreased respiratory function, anxiety, depression, post-
traumatic stress syndrome and other ills and injuries.
The couple claims they suffered economic damages, including wage
losses due to Michael McGuire's inability to work following the
incident, and costs relating to medical care.
The defendant companies are accused of negligence for designing,
manufacturing, selling, and distributing a defective product,
failing to offer adequate warnings about the product, knowledge of
prior accidents and injuries caused by the defective and
malfunctioning product, and failing to provide adequate safety
devices to go with the mask.
According to the complaint, Safeware workers performed repairs and
technical services on McGuire's Scott AV-2000 respiratory
protection mask on Oct. 18, 2010, months prior to the device's
alleged failure.
The services included testing the mask for a proper seal.
In addition to the negligence claim against all three defendants,
the lawsuit also contains counts of products liability, breach of
warranty, and failure to warn.
There is also a loss of consortium count filed on behalf of
Angelique McGuire, which claims the co-plaintiff has been deprived
of her husband's companionship, physical assistance and wage
earnings because of his injuries.
The couple says they are seeking more than $50,000 in compensatory
damages, in addition to interest and costs.
The complaint was filed by lawyers Daniel A. Schwarz, Larry
Bendesky, Brian E. Fritz and William A. Weiss.
Just over a week after the complaint's filing, defense attorneys
petitioned the U.S. District Court in Philadelphia to take
jurisdiction over the case, arguing that the damages sought by the
plaintiffs are likely to exceed the amount appropriate for state
court.
The removal notice was filed on behalf of defendant Safeware Inc.
by attorneys Patrick C. Lamb and Zachary R. Magid, of the
Philadelphia firm Marks, O'Neill, O'Brien, Doherty & Kelly P.C.
Safeware's lawyers also maintain jurisdiction is proper in federal
court because despite the plaintiffs' assertion that the company
is based in Pennsylvania, it was actually incorporated in the
state of Maryland.
"Safeware, Inc. does not have its principal place of business in
the Commonwealth of Pennsylvania," the removal notice states.
The state case ID number is 130203297 and the federal case number
is 2:13-cv-03746-RB.
SAG-AFTRA: Judge Grants Summary Judgment to Settle Class Action
---------------------------------------------------------------
Dave McNary, writing for Variety, reports that a federal judge has
ruled SAG-AFTRA is on the hook for the $330,000 it paid to
Ken Osmond and his attorneys to settle his class-action suit over
foreign tax revenues.
The union had sued Federal Insurance Co. in Los Angeles in 2011
for refusing to reimburse the funds paid to the "Leave It to
Beaver" actor.
U.S. District Court Judge Dolly Gee granted Federal Insurance's
motion for summary judgment on July 11 to settle Ken Osmond's
class-action suit over foreign tax revenues.
"In this case, SAG's own coverage position and assertions lead to
but one result, which is that, insofar as SAG is and was, prior to
the Osmond action, obligated to account for and distribute the
foreign levy funds to the plaintiff class, SAG fails to establish
that the $330,000 award arises from a 'covered' claim under the
policy," she wrote.
The suit alleged that Federal was in breach of contract under the
terms of the policy covering legal claims, which was in effect
when Mr. Osmond filed his action in 2007. SAG, which became SAG-
AFTRA last year, sought damages of $330,000 on each of two claims,
plus its additional costs.
Mr. Osmond, who played Eddie Haskell in "Leave It to Beaver," sued
over SAG's handling of "foreign levies" collected from countries
through mechanisms such as taxes on video sales and rentals to
compensate copyright holders for reuse. The guild finalized a
settlement in February, 2011, under which he received $15,000 and
his lawyers received $315,000.
Federal Insurance argued that settlement funds were not covered
under its policy and that there was no coverage for a claim
seeking "unpaid benefits." SAG argued that the policy covered any
sum was legally obligated to pay under the "incredibly broad"
definition of a wrongful act.
"SAG's argument is not persuasive," Judge Gee wrote.
Judge Gee granted SAG-AFTRA's motion to replace SAG as a
plaintiff.
The Osmond settlement brought about judicial oversight of SAG's
handling of "foreign levies," which started flowing in 1989 after
the U.S. agreed to the terms of the Berne Convention establishing
the right of authorship for individuals. SAG, the WGA and the DGA
began collecting the funds in the early 1990s on behalf of members
and nonmembers.
Osmond's suit contended that SAG overstepped its authority to make
those agreements and never disclosed them until he and Jack
Klugman threatened to file suit. A similar suit on the foreign
levies issue was filed in 2005 against the WGA West by William
Richert and was settled in 2010; another was filed in 2006 against
the DGA by William Webb, who settled in 2008.
SAG-AFTRA was sued May 24 by 15 members including former SAG
president Ed Asner, alleging extensive misconduct in its handling
of foreign levies and residuals they are owed. The suit, filed in
federal court in Los Angeles by the United Screen Actors
Committee, alleges SAG-AFTRA has improperly withheld funds and
stonewalled requests for information about $110 million held in
trust by the union.
The union has brushed off the allegations and insisted it has done
nothing wrong.
SAMSUNG TELECOMMUNICATIONS: Judge Halts Galaxy Defect Class Action
------------------------------------------------------------------
Alex Lawson, writing for Law360, reports that a California federal
judge on July 9 halted a putative class action against Samsung
Telecommunications America LLC over allegedly defective Galaxy S
phones and referred the matter to arbitration, reversing his
January decision after discovering the plaintiff had omitted key
information in Samsung's warranty agreement.
U.S. District Judge Cormac Carney ruled that Laura Carwile's
initial complaint incorrectly identified the type of phone she
purchased and neglected to include the portion of the warranty
agreement that explicitly states that all disputes arising from
the sale of the phone are subject to final and binding
arbitration.
Ms. Carwile brought the initial complaint in June 2012, alleging
that she had purchased a defective Galaxy S that would freeze and
power off when it was put into standby mode. Once the disclosure
process for the case began in May, its was revealed that
Ms. Carwile actually purchased a Galaxy S II phone. The Galaxy S
II warranty agreement contains the arbitration provision, while
the Galaxy S does not.
Samsung unsuccessfully attempted to move the case to arbitration
in January, arguing that the plaintiff is compelled to arbitrate
her claims under her service agreement with Sprint. Upon discovery
of the new information regarding her purchase, Samsung in June
filed a motion to reconsider.
"Contrary to Ms. Carwile's arguments, Samsung did not have
sufficient information at the time it filed its original motion to
discover through reasonable diligence that Ms. Carwile had in fact
purchased a Galaxy S II phone," Judge Carney said in the July 9
ruling.
Judge Carney said that while the standard for reconsidering
previous orders is rigorous, the revelation that Ms. Carwile had
purchased a phone with an entirely different warranty agreement
was "a material difference in fact warranting reconsideration."
In her response to Samsung's new motion, Ms. Carwile also argued
that she was not subject to the arbitration provision because she
was unaware of its existence in the warranty and therefore could
not have consented to it.
Judge Carney on July 9 roundly rejected this argument, primarily
on the basis that one of the claims in Ms. Carwile's suit is a
breach of contract, pursuant to the warranty.
"It would be wholly inconsistent for Ms. Carwile to claim that she
never consented to the terms of the warrant, while at the same
time attempting to enforce her rights under the warranty," the
judge said. "She may not, after the fact, pick and choose the
terms she wishes to be bound by, depending on whether she likes
the end result."
In its motion to reconsider, Samsung argued that Ms. Carwile had
filed her complaint as a "copycat" to another suit pending in the
same court, but that the other case deals exclusively with Galaxy
S model phones and cannot be used to support Ms. Carwile's
complaints.
Ms. Carwile is represented by Jeffrey R. Krinsk, Mark L. Knutson
and William Richard Restis of Finkelstein & Krinsk LLP.
Samsung is represented by Ekwan E. Rhow -- eer@birdmarella.com --
and David I. Hurwitz -- dih@birdmarella.com -- of Bird Marella
Boxer Wolpert Nessim Drooks & Lincenberg PC.
The case is Carwile v. Samsung Telecommunications America LLC,
case number 2:12-cv-05660, in the U.S. District Court for the
Central District of California.
SANDERSON FARMS: Plaintiffs-Appellants Filed Reply Brief in May
---------------------------------------------------------------
The Plaintiffs-Appellants' reply brief in the appeal from the
dismissal of their class action lawsuit against Sanderson Farms,
Inc., was filed in May 2013, according to the Company's May 30,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended April 30, 2013.
Two of the Company's former employees filed a complaint on
February 16, 2012, alleging violations of the federal and State of
Georgia's Racketeer Influenced and Corrupt Organizations ("RICO")
Acts against the Company and seven of its current and former
employees in the United States District Court for the Middle
District of Georgia. The plaintiffs contend in their complaint
that the Company conspired to knowingly hire undocumented
immigrants at the Moultrie plant to "save Sanderson millions of
dollars in labor costs because illegal aliens will work for
extremely low wages." The action is brought as a class action
lawsuit on behalf of all legally authorized hourly employees that
worked at the Moultrie plant in the four years before the filing
of the case. The plaintiffs are suing for money damages,
injunctive relief and revocation of the Company's license to
conduct business in the State of Georgia.
On September 13, 2012, the Court entered an Order granting a
motion to dismiss the Complaint, but provided the plaintiffs an
opportunity to file an Amended Complaint on one of the alleged
violations. After an Amended Complaint was filed by the
plaintiffs on October 5, 2012, the Company filed a motion to
dismiss the Amended Complaint on October 29, 2012.
On February 5, 2013, the Court granted the Company's motion to
dismiss and entered an Order dismissing the Amended Complaint with
prejudice. The plaintiffs filed a notice of appeal with the
United States Court of Appeals for the Eleventh Circuit on
February 8, 2013. The Brief for Plaintiffs-Appellants was filed
on March 19, 2013, and the Brief for Defendants-Appellees was
filed on April 22, 2013. The Plaintiffs-Appellants' Reply Brief
was filed May 6, 2013. No party has requested oral argument.
This matter is pending.
Sanderson Farms, Inc., an integrated poultry processing company,
engages in the production, processing, marketing, and distribution
of fresh, frozen, and prepared chicken products in the United
States. The Company is headquartered in Laurel, Mississippi.
SCHNEIDER NATIONAL: Settle Mechanics' Class Action for $3.5MM
-------------------------------------------------------------
Rick Romell, writing for the Journal Sentinel, reports that
Schneider National Inc. has agreed to pay $3.5 million to settle a
lawsuit by mechanics in California who allege the trucking company
shorted them on overtime pay and rest and meal breaks.
The settlement, if approved by a federal judge, would give some
200 current and former employees a total of nearly $2 million.
The rest of the money would go to attorneys who represented the
mechanics in the class action, and toward litigation expenses,
administrative costs and employer payroll taxes owed because of
the settlement.
The average payout to employees likely would come to $9,000 to
$10,000, according to a motion by the plaintiffs' lawyers.
In the agreement, Schneider denies liability for the claims, and
denies any wrongdoing. The Green Bay company is one of the
country's largest trucking firms.
The lawsuit dates to early 2010.
Fans' suit over Arlington Super Bowl seating may not end with
denial of class-action status
SCHNUCK MARKETS: Seeks Transfer of Security Breach Suit to Mo.
--------------------------------------------------------------
Bethany Krajelis, writing for The Madison-St. Clair Record,
reports that a grocery store chain facing five federal lawsuits
over a security breach to its electronic payment system wants a
federal court in Missouri to handle all of the cases.
Schnuck Markets Inc. late last month filed a motion to transfer
Laverne Rippy's suit from the U.S. District Court for the Southern
District of Illinois to the Eastern District of Missouri, which it
contends would be "the most logical and convenient forum for this
litigation."
Ms. Rippy's suit is one of a handful of federal lawsuits brought
against Schnucks in connection with a security breach that she
claims may have compromised the credit and debit card information
of millions of customers between December 2012 and March 2013.
In a timeline previously released to the media, Schnucks said it
found out about the issue on March 15, formed a response team on
March 19, contacted police on March 20, and began to identify the
problem on March 28. It communicated its concerns to the public
on March 30.
The grocery store chain has said that only card numbers and
expiration dates were stolen, not cardholders' names, addresses or
anything else.
Ms. Rippy claims in her suit that the breach not only compromised
her information, but also forced her and other members of her
proposed class to spend hours canceling their compromised cards,
activating replacement cards and re-establishing automatic
withdrawal payment authorizations
Schnucks states in its recently-filed transfer motion that it has
or plans to file similar motions in two similar Illinois suits,
one from the Central District and one from the Northern District.
There are also two similar suits pending in the Eastern District
of Missouri, which is where the first of the five federal suits
was brought, as well as a class action complaint pending in the
Circuit Court for the City of St. Louis in Missouri.
In a memorandum supporting its transfer motion, Schnucks asserts
that "the alleged conduct giving rise to the plaintiffs'
complaints in all five pending federal actions is essentially the
same."
"The plaintiffs allege that Schnucks failed to exercise reasonable
care to protect its customers' financial information," the memo
states. "[T]he plaintiffs also allege that Schnucks failed to
provide its customers with sufficient information regarding the
attack. All of the plaintiffs in these cases assert the same
basic claim for negligence against Schnucks."
As such, Schnucks claims that consolidating the five federal suits
to the Eastern District of Missouri "best promotes the convenience
of the parties and the interests of justice."
In seeking the transfer, Schnucks contends that Missouri would be
the most convenient forum because it is headquartered in St. Louis
County and most of its witnesses are located in the Eastern
District of Missouri.
It also notes that the material events at issue in the five suits
occurred in Missouri and all of the management decisions regarding
the security breach were made there.
"The Eastern District of Missouri is the appropriate transferee
court not only because litigation there is more convenient, and
not only because the first-filed and most comprehensive case is
pending there, but also because the general 'interest of justice'
factors also favor that venue," the motion states.
It adds, "Fifty-three of the 79" stores affected by the security
breach "are located in Missouri, with most of these stores in the
St. Louis metropolitan area. The putative class thus has a far
greater relationship to Missouri than it does to Illinois
Schnucks also states in its motion that because the plaintiffs in
the five federal suits seek to represent a nationwide class,
"their places of residences is not a significant factor" in a
forum analysis.
In addition, the grocery store chain asserts that a request
pending before the U.S. Judicial Panel on Multidistrict Litigation
(JPML) to consolidate the five suits should not prevent a ruling
on its transfer request in Ms. Rippy's suit.
The plaintiff in one of the Missouri suits made the request to the
JPML last month. According to the panel's website, a hearing has
not yet been set over that motion.
Belleville attorney Russell K. Scott, Colorado attorney Paul G.
Karlsgodt and Ohio attorney Daniel R. Warren represent Schnucks.
St. Louis attorney Jeffrey A. Millar and Wood River attorneys
Thomas and Peter Maag represent Ms. Rippy and the proposed class.
SEMILEDS CORP: Robbins Geller Files Class Action in New York
-------------------------------------------------------------
Robbins Geller Rudman & Dowd LLP on July 10 disclosed that a class
action has been commenced in the United States District Court for
the Southern District of New York on behalf of purchasers of
SemiLEDs Corporation common stock during the period between
December 9, 2010 and July 12, 2011.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from July 10. If you wish to discuss this
action or have any questions concerning this notice or your rights
or interests, please contact plaintiff's counsel, Samuel H. Rudman
or David A. Rosenfeld, Esq. of Robbins Geller at 800/449-4900 or
619/231-1058, or via e-mail at djr@rgrdlaw.com
If you are a member of this class, you can view a copy of the
complaint as filed or join this class action online at
http://www.rgrdlaw.com/cases/semileds/
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice, or may choose to
do nothing and remain an absent class member.
The complaint charges SemiLEDs and certain of its officers with
violations of the Securities Exchange Act of 1934. SemiLEDs is a
holding company for its wholly-and majority-owned subsidiaries and
joint ventures that collectively develop, manufacture and sell
high performance light emitting diode ("LED") chips and components
that are used primarily in general lighting applications,
including street lights and commercial, industrial and residential
lighting.
The complaint alleges that during the Class Period, defendants
issued materially false and misleading statements regarding the
Company's operations and business. Specifically, defendants
failed to disclose: (i) that the Company was experiencing known,
but undisclosed, pricing pressures for its products which were
reasonably likely to have a material adverse effect on SemiLEDs'
future revenues and operating income; (ii) that known events or
uncertainties, including the reduction in demand for the Company's
products, the likely (and ultimate) loss of a large customer, and
the decline in the value of the Company's inventory, were
reasonably likely to cause SemiLED's financial information not to
be indicative of future operating results; (iii) that the
Company's disclosure controls were materially deficient and its
representations concerning them were materially false and
misleading; (iv) that the certifications issued by defendants
associated with the Company's disclosure controls were materially
false and misleading; and (v) that, based on the foregoing,
defendants lacked a reasonable basis for their positive statements
about the Company, and its then current business and future
financial prospects.
On July 10, 2011, SemiLEDs issued a press release announcing its
financial results for its 2011 third quarter ended May 31, 2011.
For the quarter, the Company reported revenue of $5.6 million,
down 43% from the previous year's third quarter, and a net loss of
$5.1 million, or $0.19 per diluted common share. The Company's
results for the quarter were adversely impacted by a $1.1 million
inventory charge during the quarter, an amount equal to more than
7% of the value of the Company's total inventory at February 28,
2011. In reaction to this news, SemiLEDs' stock price fell nearly
11%, or $0.71 per share, to close at $5.87 per share on July 12,
2011.
Plaintiff seeks to recover damages on behalf of all purchasers of
SemiLEDs common stock during the Class Period. The plaintiff is
represented by Robbins Geller, which has expertise in prosecuting
investor class actions and extensive experience in actions
involving financial fraud.
Robbins Geller -- http://www.rgrdlaw.com-- represents U.S. and
international institutional investors in contingency-based
securities and corporate litigation. With nearly 200 lawyers in
nine offices, the firm represents hundreds of public and multi-
employer pension funds with combined assets under management in
excess of $2 trillion. The firm has obtained many of the largest
recoveries and has been ranked number one in the number of
shareholder class action recoveries in MSCI's Top SCAS 50 every
year since 2003.
STATE FARM: Voiding Avery May Undercut Class Action Precedent
-------------------------------------------------------------
Steve Korris, writing for The Madison St. Clair-Record, reports
that if U.S. District Judge David Herndon voids the Illinois
Supreme Court decision in Avery v. State Farm, he will void a
precedent that has curtailed class actions for eight years.
"It has been cited 11 times by the Illinois Supreme Court, 105
times by the Illinois appellate courts, 16 times by the Seventh
Circuit, and 148 times by Illinois federal district courts, as
well as by courts around the country," wrote State Farm counsel
Patrick Cloud of Edwardsville on July 8 in a current case accusing
the insurer of racketeering to evade Avery's $1.05 billion
judgment.
Judge Herndon must rule on a class certification motion in the
case which seeks to void the overturning of Avery.
Voiding Avery would also vindicate U.S. District Judge Patrick
Murphy, who as a Marion lawyer filed the action against State Farm
on July 28, 1997.
Judge Murphy stuck with it after President Clinton nominated him
for judge on July 31, 1997, after the Senate confirmed him, and
after he started taking cases as judge in the Southern District of
Illinois. He is retiring from the bench on Dec. 1.
Judge Murphy didn't invent the theory that State Farm breached its
policies by replacing crash parts with inferior parts, but he and
his colleagues greatly expanded it. They decided to create a
nearly national class, leaving out Arkansas and Tennessee.
Lead lawyer Don Barrett of Mississippi picked Murphy for local
counsel and brought along Morris Ratner from California, Patrick
Pendley from Louisiana, Gordon Ball from Tennessee, and Steven
Martino from Alabama.
Mr. Barrett also brought along Thomas Thrash from the Rose Law
Firm of Little Rock, where Hillary Clinton had practiced.
Judge Murphy filed the complaint in Williamson County on behalf of
county resident Jeanne Teter. He moved for an immediate hearing
on conditional class certification.
Presiding Judge Ronald Eckiss assigned the case to Circuit Judge
Paul Murphy, no relation to Patrick, but Judge Murphy was out of
state.
Judge Eckiss assigned it to Judge Murphy's backup, associate judge
John Speroni, but he disqualified himself because he had
represented State Farm within seven years.
Judge Eckiss wrote, "In Judge Murphy's absence I will handle the
case." He held a hearing and conditionally certified the class,
pending a hearing in 60 days.
Three days later, President Clinton nominated Patrick Murphy for
district judge.
Plaintiffs served the suit on State Farm, where lawyers rushed to
catch up.
On Aug. 27, Judge Murphy added county resident Tammy Snider as a
plaintiff.
Judge Paul Murphy took the case when he returned, but Ms. Teter
moved for substitution.
Any party can substitute a judge without cause in Illinois, once
only, if the judge has not made a substantial ruling.
Judge Eckiss referred the file to Judge Speroni, who qualified his
disqualification by asking for comments from both sides.
Judge Murphy wrote, "On behalf of the plaintiffs, I waive your
disqualification pursuant to Supreme Court Rule 63 and expressly
consent that you handle the case."
State Farm counsel Christy Solverson of Carbondale waived it too,
and on the same day she moved to vacate the conditional class
certification order. She wrote that the plaintiff team left out
Arkansas and Tennessee because one of them was pursuing cases in
those states.
Judge Murphy opposed the motion to vacate, writing that the order
was conditional.
"The case is fairly simple," he wrote. "All courts can make
determinations about a suit at any time and decide how best to
proceed without notifying any party."
On the same day he filed an emergency motion to enjoin State Farm
from appealing to a Cook County judge hearing a similar case that
had run 10 years.
A new lawyer popped up on the plaintiff team on Sept. 10, when
Patricia Littleton of Carbondale appeared at a hearing with Judge
Murphy and Mr. Barrett.
She and Judge Murphy would later marry.
At the hearing, State Farm opposed the emergency motion and Judge
Speroni granted it.
He entered a scheduling order that State Farm branded as extreme
and unreasonable at a hearing two days later.
At the hearing he allowed Judge Murphy to add Michael Avery as
plaintiff.
State Farm moved a week later to dismiss the action and Murphy
responded by writing, "Has the court heard any defense to the
allegations in the complaint? No. There are none."
Ms. Teter fell short as class representative, however, and he
moved to dismiss her claim.
State Farm responded that he dropped her an hour before inspection
of her car.
The hearing Judge Eckiss had promised in two months happened after
four months, and it ended with Judge Speroni certifying the class.
On Dec. 23, State Farm notified Judge Speroni that it would
petition for review at the Illinois Supreme Court.
State Farm asked the Justices to consolidate the action with the
one in Cook County and another in Champaign County, and to
transfer all three to a single court.
On Jan. 21, 1998, the Justices announced that they could not act
on the petition. They had split three to three, with the seventh
Justice taking no part.
Next, Judge Speroni adopted Judge Murphy's plan for notifying the
class about the action.
State Farm moved to stay the plan, arguing that the schedule in it
would deprive State Farm of the right to seek review.
At a hearing on Feb. 26, Judge Speroni denied a stay and denied
State Farm an interlocutory appeal of the denial.
State Farm sought a stay at the Supreme Court the next day anyway,
and the Justices denied it on March 9.
Back in Marion, State Farm moved to introduce an interpretation of
policy requirements through an affidavit of counsel for the state
insurance commissioner.
Judge Speroni denied it on March 23.
As Judge Murphy prepared to switch jobs, Michael Hyman of Chicago
began signing briefs for the plaintiff team.
Judge Murphy's name appeared first on the list of lawyers below
Hyman's signatures.
Judge Murphy appeared in court on March 30, but a docket entry for
April 2 declared that "Attorney Murphy is unavailable." The U.S.
Senate confirmed him on April 2.
On April 24, the federal court in East St. Louis started assigning
cases to him.
On April 27, he signed deposition notices in the suit against
State Farm.
On April 29, he signed motions to serve interrogatories, bar
depositions, compel compliance with Speroni's scheduling order,
and impose sanctions.
Speroni set the motion to compel for May 4, and directed the clerk
to call Murphy and defense counsel.
Patricia Littleton entered an appearance as Murphy's substitute on
May 4, and Murphy withdrew on that date.
The first motion that Littleton filed showed her address at
Murphy's former office.
Judge Speroni presided over a jury trial for seven weeks in 1999,
denying mistrial motions from State Farm all the way through.
The jury awarded the class $456,180,000 in damages and Judge
Speroni added $600 million in punitive damages, for a total of
$1,056,180,000.
Fifth Circuit appellate judges in Mount Vernon affirmed the
judgment in 2001.
The Illinois Supreme Court wiped out the judgment in 2005, ruling
that individual issues predominated over class issues.
The Justices held that Judge Speroni improperly instructed jurors
to read different policies as a single contract. They held that
he improperly applied the state consumer fraud law to other
states.
Class action defendants clutched the decision and rushed to judges
for relief.
Now the relief hangs in suspense in Herndon's court.
Plaintiffs Mark Hale, Todd Shale and Carly Vickers Morse, who were
plaintiffs in Avery, sued in the Southern District of Illinois in
May 2012. They accuse defendants State Farm, its attorney William
Shepherd, and Ed Murnane, president of the Illinois Civil Justice
League (ICJL), of violating the Racketeer Influenced and
Corruption Organizations (RICO) Act by creating an enterprise "to
enable State Farm to evade payment of a $1.05 billion judgment
affirmed in favor of approximately 4.7 million State Farm
policyholders" in Avery.
The plaintiffs are represented by more than 20 attorneys,
including some original to Avery -- Don Barrett, W. Gordon Ball,
Patrick Pendley and Steven Martino.
Edwardsville attorney Patrick D. Cloud and Chicago attorneys J.
Timothy Eaton, Joseph A. Cancila, Jr. and James P. Gaughan,
represent State Farm, along with three New York attorneys are
listed as of counsel.
Belleville attorneys Russell Scott and Laura Oberkfell represent
Shepherd. Chicago attorneys Richard J. O'Brien, Scott M. Berliant
and David Gavin Jorgensen represent Murnane.
STATE STREET: September 25 Class Action Opt-Out Deadline Set
------------------------------------------------------------
Scott+Scott, Attorneys at Law, LLP on July 11 issued a statement
regarding Pfeil v. State Street Bank and Trust Company.
UNITED STATES DISTRICT COURTEASTERN DISTRICT OF MICHIGAN
RAYMOND M. PFEIL AND MICHAEL KAMMER, Individually and on Behalf of
All Others Similarly Situated, Plaintiffs, vs. STATE STREET BANK
AND TRUST COMPANY, Defendant. Case No. 2:09-cv-12229, Honorable
Denise Page Hood
SUMMARY NOTICE OF PENDENCY OF CLASS ACTION
To: ALL PERSONS WHO PARTICIPATED IN OR WERE BENEFICIARIES OF
EITHER OF GENERAL MOTORS' TWO MAIN 401(k) PLANS, FOR HOURLY AND
SALARIED EMPLOYEES, BETWEEN JULY 15, 2008 AND APRIL 24, 2009,
INCLUSIVE, WHOSE ACCOUNTS INCLUDED INVESTMENTS IN THE GENERAL
MOTORS $1-2/3 PAR VALUE COMMON STOCK FUND.
YOU ARE HEREBY NOTIFIED, pursuant to an Order dated January 4,
2013, that a class has been certified in a class action entitled
Pfeil v. State Street Bank and Trust Company, Case No. 09-CV-
012229, currently pending before the Honorable Denise Page Hood of
the United States District Court for the Eastern District of
Michigan.
This litigation is brought on behalf of all persons who were
participants in or beneficiaries of the General Motors Personal
Savings Plan for Hourly Rate Employees or the General Motors
Corporation Savings-Stock Purchase Program for Salaried Employees
at any time between July 15, 2008 and April 24, 2009 whose
accounts included investments in General Motors Corporation and
who suffered a loss on his or her individual investments in the
General Motors $1-2/3 Par Value Common Stock Fund during the Class
Period.
Plaintiffs in this litigation allege that GM engaged State Street
Bank and Trust Company to serve as the independent fiduciary and
investment manager for these Plans solely with respect to the GM
Stock Fund. Plaintiffs further allege that State Street breached
the fiduciary duties it owed to Class members, including the
duties imposed by the Employment Retirement Income Security Act
(29 U.S.C. 1104(a)(1)(A) and (B)). Plaintiffs seek compensatory
damages, pre- and post-judgment interest at legal rates,
attorneys' fees, and the costs of bringing and prosecuting the
action and any such further relief as the Court may deem just and
proper. State Street denies all of Plaintiffs' allegations
concerning breach of fiduciary duty and violations of the Employee
Retirement Income Security Act.
If you are a member of the Class, your rights may be affected by
this litigation. If you have not received a detailed Notice of
Pendency of Class Action, you may obtain copies by writing to
Claims Administrator, State Street Bank and Trust Company ERISA
Litigation, c/o The Garden City Group, Inc., PO Box 9984, Dublin,
OH 43017-5984, or by downloading this information at
http://www.gcginc.com
If you desire to be excluded from the Class, you must submit a
written request for exclusion postmarked no later than September
25, 2013, in the manner and form explained in the detailed Notice
referred to above. All Class members who do not timely and
validly request exclusion from the Class will be bound by any
judgment entered in the litigation. Moreover, the Court certified
the Class under two provisions of the Federal Rules of Civil
Procedure. Under one of these provisions, potential Class members
are not entitled to exclude themselves from the Class. Thus,
decisions to exclude will only have effect to the extent the Court
rescinds this portion of its certification.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. If you have any questions about the settlement, you
may contact counsel for the Plaintiffs at: Geoffrey M. Johnson,
Scott+Scott, Attorneys at Law, LLP, 12434 Cedar Road, Suite 12,
Cleveland Heights, OH 44106; or go to the following website:
http://www.gcginc.com
DATED: July 11, 2013.
BY THE ORDER OF THE UNITED STATES DISTRICT COURT, EASTERN DISTRICT
OF MICHIGAN
STORM FINANCIAL: Class Action Lawyers Balk at Compensation Deal
---------------------------------------------------------------
Rae Wilson, writing for The Ipswich Advertiser, reports that
lawyers for the class action against Storm Financial have labeled
a compensation deal "the greatest betrayal since Pearl Harbour" as
they launch further legal action.
Sydney-based firm Levitt Robinson made the claim as it filed a
case against the Australian Securities and Investment Commission
and the Commonwealth Bank, challenging ASIC's integrity as "model
litigant" for Storm investors.
The application, which was to be heard on July 15, charges ASIC
with giving misleading advice to Storm victims that the offer
nutted out behind closed doors, and announced last September, was
"timely, fair and certain".
Levitt Robinson will make the application on behalf of Brisbane
clients Les and Julianne Sherwood, Sunshine Coast clients Sean and
Paula McArdle, and other investors with the CBA.
ASIC stated publicly at the time that it "would not have agreed to
a settlement unless we thought that that compensation was
appropriate".
The Commonwealth Bank settlements, in total, have added up to $268
million.
Class action lawyer Stewart Levitt said ASIC had reneged on its
promise to raise the bar for banks by abandoning its court
proceedings against the CBA after reaching settlement.
"Because ASIC and CBA used a very convoluted calculation to
produce what they say is a 55% compensation offer, it does not
uniformly operate as 55% of anything and has an arbitrary effect,
benefiting some and penalizing others, without reference to the
merits of the individual borrower claims," he said.
ASIC has calculated investors, clients of a number of banks, lost
about $830 million after Storm's collapse.
SYNGENTA AG: Wants Confidential Documents Destructed
----------------------------------------------------
Bethany Krajelis, writing for The Madison St. Clair-Record,
reports that the defendants in the now-settled class action
lawsuit over atrazine have asked a federal judge to make the
plaintiffs' attorneys confirm they have destroyed documents
containing confidential information.
Syngenta AG and Syngenta Crop Protection LLC on July 10 filed its
motion to compel in an effort to certify compliance of a document
destruction provision included in a protective order that southern
Illinois' federal court entered in 2010 to prevent the improper
disclosure of confidential materials.
The order, according to Syngenta's motion, stated that
confidential information produced during discovery should not be
used for any purpose other than litigation and required parties
that received confidential materials to return or destroy them
within 120 days of the case's conclusion.
The court in October 2012 approved a $105 million settlement in
the suit over atrazine, an agricultural herbicide manufactured and
distributed by Syngenta.
The settlement resolved a lawsuit that several municipalities and
water providers in six states brought against the Syngenta
defendants in 2010.
Represented by attorneys at Korein Tillery in St. Louis and Baron
& Budd in Texas, the plaintiffs claimed that atrazine had entered
their water supplies and forced them to incur costs associated
with testing, monitoring and filtering their water.
Syngenta asserts in its motion to compel that because the
settlement agreement took effect Dec. 26, 2012, each party was
required to serve certification of its compliance with the
protective order's document destruction provision by April 25.
On April 24, the motion states that the parties agreed to extend
that 120-day period to June 20.
Syngenta's attorneys assert that they sent plaintiffs' counsel a
letter on June 20, certifying that they had destroyed all of the
plaintiffs' confidential information and requested that they do
the same.
The motion notes that the plaintiffs' counsel replied on June 24,
stating that they would respond to the demand within one week.
Syngenta's attorneys contend they again inquired about the status
of the document destruction again on July 3 and then met with
plaintiffs' counsel on July 10.
"[T]he parties met and conferred to resolve their differences with
no success," the motion states, noting that Syngenta has yet to
receive plaintiffs' certification. "Accordingly, Plaintiffs are
in violation of the document destruction provision set forth in
the Court's Protective Order."
Chicago attorneys Michael Pope, Christopher Murphy and Brian
Fogerty of McDermott, Will & Emery submitted the motion on behalf
of Syngenta AG and Syngenta Crop Protection.
The July 10 motion marks the first docket entry in the case since
about March, when a pair of intervenors to the case --
Environmental Law & Policy Center and Prairie Rivers Network --
filed a notice of appeal over an order regarding sealed documents.
These two groups have been working to unseal documents in the case
since they intervened in 2011 "for the sole purpose of enforcing
the public's presumption right of access to documents in the
judicial record."
They managed to get some of the documents unsealed since then, but
have continued to fight to remove the court-ordered seal on a
group of documents not directly cited in the plaintiffs' briefs.
The Syngenta defendants oppose the group's attempt, claiming "that
sealed documents that do not influence or underpin a judicial
decision are not subject to a presumption of public access."
The two groups' appeal remains pending in the Seventh Circuit
Court of Appeals. They are represented by Howard Learner, ELPC's
president and executive director, and his colleague, Jennifer
Cassel.
TRULY NOLEN: Employees' OT Suit Can Proceed as Class Action
-----------------------------------------------------------
Blumenthal, Nordrehaug & Bhowmik on July 11 disclosed that on
June 28, 2013, the Honorable William Dato found an arbitration
provision imposed on Truly Nolen's employees as a condition of
their employment must be interpreted to permit them to seek class-
wide relief. Judge Dato's ruling came in a class action lawsuit
alleging that Truly Nolen failed to properly pay their hourly,
non-exempt employees the correct amount of overtime wages.
Miranda v. Truly Nolen of America, Inc. is currently pending in
the San Diego County Superior Court, Case No. 37-2011-00090040-CU-
OE-CTL. The original Complaint was filed in August of 2011 and
can be read here.
The San Diego labor lawyers at Blumenthal Nordrehaug & Bhowmik put
forth the argument that by broadly authorizing the arbitrator to
grant any remedy or relief, including any remedy that would have
been available if the matter had been heard in court, the
arbitration agreement was reasonably understood to permit class-
wide relief. Judge Dato agreed with Plaintiff's argument and
ordered the parties to arbitration allowing the Plaintiff and
other Truly Nolen employees to seek class-wide relief in
arbitration.
Judge William Dato stated in his Order that, "Truly Nolen fails to
explain how the language of the arbitration provision reasonably
advises its employees that classwide relief is not included within
'any' relief."
When asked about the court's ruling, managing partner of
Blumenthal, Nordrehaug & Bhowmik, Norman Blumenthal, stated, "Per
the Court's Order we will proceed with litigating the class-wide
claims against Truly Nolen as alleged in the Complaint."
Blumenthal, Nordrehaug & Bhowmik is a San Diego employment law
firm with offices located in San Diego, San Francisco and Los
Angeles. The firm dedicates its practice to representing
California employees with issues involving California overtime
pay, wrongful termination, discrimination and other California
labor laws.
UNITED STATES: Judge Awards $90.8MM in Fees in Black Farmers Suit
-----------------------------------------------------------------
Matthew Huisman, writing for The Blog of Legal Times, reports that
a federal judge in Washington has awarded $90.8 million in fees to
the plaintiffs lawyers involved in the high-profile black farmers'
discrimination litigation.
U.S. District Judge Paul Friedman concluded the plaintiffs'
attorneys should receive the maximum amount -- 7.4 percent --
under the terms of a historic settlement with the U.S. Justice
Department. The deal set out a fee range between 4.1 percent and
7.4 percent.
The fee award is the latest chapter in a long-running dispute in
which African American farmers alleged the U.S. Department of
Agriculture discriminated against them in the loan application
process. In a consent decree, the USDA acknowledged its practice
of discriminating against African Americans in providing farm
loans, subsidies and other benefits.
Judge Friedman signed off on a $1.25 billion common fund from
which to compensate eligible class members and their lawyers.
Justice Department attorneys argued that the plaintiffs' attorneys
were not entitled to 7.4 percent. The government's lawyers said
the case was neither long in duration nor complex in scope.
In the opinion issued on July 11, Judge Friedman said numerous law
firms incurred millions of dollar in expenses while not knowing
whether they would ultimately be reimbursed. He said that the Law
Offices of James Scott Farrin and Morgan & Morgan collectively
incurred out-of-pocket expenses in excess of $18 million.
"Absent the settlement of this case, they might never have been
reimbursed for many of these costs and expenses," Friedman wrote.
"In light of these considerations, the Court's previous
observation that this litigation 'was no sure bet for plaintiffs'
lawyers' was, if anything, an understatement."
The distribution of the legal fees and expenses will be handled by
lead class counsel Andrew Marks -- amarks@coffeyburlington.com --
of Coffey Burlington, Henry Sanders of Chestnut Sanders Sanders &
Pettaway and Gregorio Francis of Morgan & Morgan.
Judge Friedman said the prosecution of the case "entailed a
diverse array of challenges." Class counsel, the judge said,
successfully coordinated among more than 20 law firms issues that
included class certification.
The judge noted that at least 20 draft settlements were exchanged
among the lawyers in the case as they tried to "devise a fair and
efficacious manner of resolving a potentially very large number of
claims with funds drawn from a limited pool."
"Class counsel have undertaken the immense challenge presented by
this action with the utmost professionalism and integrity,
exhibiting skill, diligence, and efficiency in all aspects of
their duties," Judge Friedman wrote. "As noted earlier, they also
have committed themselves to devoting 'whatever additional time
and effort is necessary going forward to bring the claims and
payment process to a successful conclusion."
UNITED STATES: Descendants of Sand Creek Victims File Class Suit
----------------------------------------------------------------
Eric Gorski, writing for The Denver Post, reports that descendants
of victims of the Sand Creek Massacre have filed a class-action
lawsuit in Denver against the federal government, seeking
reparations they claim were never paid for the slaughter of their
Cheyenne and Arapaho ancestors 149 years ago.
The lawsuit, filed on July 11 in U.S. District Court on behalf of
four Oklahoma-based members of the Sand Creek Massacre Descendants
Trust, is the most concrete step taken in decades by descendants
long frustrated by politics, inaction and divisions in their
ranks.
The complaint accuses the government and its agents of lawless
behavior and hollow promises surrounding one of the darkest
moments in Colorado history.
At dawn on Nov. 29, 1864, federal soldiers attacked peaceful
Indians camped on the ice-encrusted banks of Sand Creek in what is
now southeastern Colorado, slaughtering an estimated 163 -- mostly
women, children and the elderly -- and desecrating their bodies.
The U.S. government in an 1865 treaty acknowledged wrongdoing and
promised reparations of land and cash to survivors and relatives
of victims.
The crux of the legal argument going forward will be whether the
government ever paid that debt. Descendants claim it has not,
while government officials have indicated they will argue
otherwise.
"It's been a long road, and we're ready to go," said Robert
Simpson, a Methodist minister from Anadarko, Okla., and one of the
plaintiffs. "We are focused on our ancestors. They are the ones
who want us to do this. We will never forget them and what
happened."
The trust says it has identified more than 15,000 descendants
through decades of genealogical research and recruitment. A judge
will decide whether the case meets requirements for class-action
status.
Trust lawyers say either the federal government or the courts are
responsible for establishing exactly who is a rightful descendant.
But the lawsuit does not seek to identify exactly how much is
allegedly owed descendants -- one of several open questions.
The lawsuit allows that it is very likely Congress appropriated
some money in 1866 to reimburse bands of Cheyenne and Arapaho who
suffered at Sand Creek. But it alleges that only a portion was
paid, the amount was insufficient, and it was given to tribes
rather than individuals as spelled out in the Treaty of the Little
Arkansas.
The Department of the Interior has since then controlled and held
in trust reparations owed to the plaintiffs and their ancestors
but has never accounted for it, the lawsuit claims.
Interior Department spokeswoman Jessica Kershaw said the
department would not comment on pending litigation.
The reparations effort is the latest chapter in the struggle about
the legacy of the Sand Creek Massacre, an important chapter in
relations between white settlers and American Indians in the West.
At a time of high tension, about 700 soldiers under the command of
Col. John Chivington attacked Indians led by "peace chiefs" who
had been assured by the government they could safely camp there.
Witnesses described Indians on their knees begging for mercy and
children clubbed in the head. When the killing was done, victims'
body parts were taken as trophies and put on display in Denver.
Previous efforts at reparations have stalled. Bills introduced in
Congress in 1949, 1953, 1957 and 1965 all failed.
The cause has been influenced by divisions among descendants, as
well. Some Cheyenne tribal traditionalists dismiss the trust
leaders who filed the lawsuit as interlopers with no legitimate
claim.
The trust's campaign for reparations stalled for years but was
revived with a recently expanded legal team. One of its new
lawyers, David Askman of Denver, helped open a dialogue with
Interior Department officials about the reparations claim before
filing the lawsuit.
Mr. Askman has said the department contends reparations have been
paid, with a department official describing a ledger from the
1960s that purports to show payments to individuals.
But Mr. Askman said on July 11 the government has only produced
documents showing payments to tribes, not individuals.
UNITED STATES: Faces Class Action Over Fannie, Freddie Bailout
--------------------------------------------------------------
Lance Duroni, writing for Law360, reports that the federal
government on July 10 was slapped with a third lawsuit in four
days, this time a class action, alleging recent changes to its
bailout deal with Fannie Mae and Freddie Mac unfairly sweep into
the public coffers renewed profits that should go to the
companies' shareholders.
The government unilaterally altered the terms of the bailout
agreement last August to require Fannie and Freddie to give the
U.S. Treasury Department increased dividends representing the bulk
of their profits, according to a complaint filed in Washington,
D.C., federal court by two preferred stockholders in the mortgage
finance firms.
The move came just as the U.S. housing market began to rebound and
Fannie and Freddie again started turning significant profits --
which, under the original bailout deal, junior preferred
shareholders were entitled to a piece of. However, the so-called
"net worth sweep" amendment robbed the preferred stockholders of
billions in future dividends, violating their Fifth Amendment
rights in the process, the complaint said.
For example, at the end of last month, Fannie and Freddie paid
dividends to the Treasury Department exceeding $66 billion. But
prior to the sweep amendment, that dividend would only have been
$4.7 billion, with the balance available to be paid to junior
preferred shareholders, according to the suit.
"While the government's goal may be to serve the public, the
government cannot benefit taxpayers by unlawfully taking the
property of the junior preferred stockholders without just
compensation," plaintiffs Joseph Cacciapelle and Melvin Bareiss
said.
The suit is the third filed last week in the U.S. Court of Federal
Claims with similar allegations. The first, filed on July 7 by
hedge fund Perry Capital LLC, aims to repeal the August bailout
amendment. Another, filed on July 9 by Fairholme Capital
Management LLC and insurance holding company W.R. Berkley Corp.,
also seeks compensation under the Fifth Amendment like the class
action.
The sweep amendment was designed to bolster the mortgage markets
and help wind down Fannie and Freddie, but whether this makes for
good public policy is "beside the point," according to the July 10
complaint.
"What is indisputably true is that, for an ostensible public
purpose, the Treasury and the [Federal Housing Finance Agency]
have appropriated the private property owned by plaintiffs and the
class without payment of just compensation," the plaintiffs said.
"It is the duty of this court to enforce the Fifth Amendment, and
to require the government to pay for the property it has taken."
A spokesman for the Treasury Department did not immediately
respond to an email requesting comment on July 11.
The lawsuits follow a recent $41 billion shareholder suit over the
government's 2008 bailout of Fannie and Freddie, which pumped $188
billion from taxpayers into the two companies. The complaint
alleges that while the government's interference helped the
nation's economy, it nullified private and common stock.
Last month, Sens. Bob Corker, R-Tenn., and Mark Warner, D-Va.,
introduced legislation that called for the elimination of Fannie
and Freddie and the FHFA within the next five years. A new
government insurance program would assume their place.
The plaintiffs are represented by Hamish P.M. Hume --
hhume@bsfllp.com -- and Damien Marshall -- dmarshall@bsfllp.com --
of Boies Schiller & Flexner LLP, and Lee D. Rudy -- lrudy@ktmc.com
-- and Eric L. Zagar -- ezagar@ktmc.com -- of Kessler Topaz
Meltzer & Check LLP.
The case is Joseph Cacciapelle et al. v. U.S., case number 1:13-
cv-00466, in the U.S. Court of Federal Claims.
UNITED STATES: Meat Groups Sue USDA Over New Labeling Rules
-----------------------------------------------------------
David Pitt, writing for The Associated Press, reports that
requiring meat labels to have more details about a product's
origins is too costly and serves no public health or safety
benefit, industry groups said on July 9 in announcing a lawsuit
against U.S. Department of Agriculture over new labeling rules.
The rules went into effect in May and require labels for steaks,
ribs and other cuts of meat to detail where animals grown for meat
were born, raised and slaughtered. Previously, labels only
required that countries of origin to be noted, so a package might
say, "Product of U.S. and Canada." Now, the labels must specify
"Born in Canada, raised and slaughtered in the United States."
In addition, the USDA is prohibiting processors from mixing meat
from animals born, raised, or slaughtered in Mexico, Canada, or
other countries with meat from the U.S.
The American Meat Institute, a trade group for packers,
processors, and suppliers and seven other groups said segregating
the meat is not part of the law Congress passed and the USDA is
overstepping its authority. They also claim the rule will be
costly to implement and that it offers no food safety or public
health benefit.
"Segregating and tracking animals according to the countries where
production steps occurred and detailing that information on a
label may be a bureaucrat's paperwork fantasy, but the labels that
result will serve only to confuse consumers, raise the prices they
pay, and put some producers and meat and poultry companies out of
business in the process," Mark Dopp, an AMI executive, said in a
statement.
The USDA says the country of original labeling, known as COOL,
will help consumers make informed decisions about the food they
buy.
"USDA remains confident that these changes will improve the
overall operation of the program and also bring the mandatory COOL
requirements into compliance with U.S. international trade
obligations," it said.
Other advocates of the new rule say segregating meat will help if
a food safety issue develops.
"We've found that there's strong consumer support for country-of-
origin labels. When you buy meat to feed your family, you ought
to be able to know where it comes from," said Ami Gadhia, senior
policy counsel for Consumers Union, a New York-based consumer
advocacy group. "If there's a food safety problem with a certain
product, the labels can help consumers avoid that product."
The rules also have had support from other farmers' organizations,
along with environmental groups.
The meat industry groups that sued said in court documents that
about 4 percent to 7 percent of beef and pork consumed in the U.S.
comes from animals from other countries. In some parts of the
U.S., including Texas, New Mexico, Arizona and California, as much
as half of the livestock used for meat could be imported.
Once in the supply chain, the meat becomes interchangeable with
meat from U.S. animals, the groups said.
"In short, beef is beef, whether the cattle were born in Montana,
Manitoba, or Mazatlan," the lawsuit filed in federal court in
Washington, D.C., said. "The same goes for hogs, chickens, and
other livestock."
Meat suppliers will be forced to segregate the animals along the
entire supply chain "from the moment livestock are put in a pen on
U.S. soil, throughout the production, storage, and distribution
process, until the meat is placed on store shelves for sale."
The USDA estimates the labeling change will cost somewhere between
$53.1 million and $192.1 million to put in place. The National
Grocers Association said it expected it to cost at least $100
million as companies buy new signs, labels and labeling machines.
The lawsuit, filed by groups that include cattle and pork
associations in the U.S. and Canada, claims the rule violates the
U.S. Constitution. The lawsuit also alleges the rule violates the
2008 farm bill because the requirement is much broader than the
law intended.
UNITED STATES: NSA Can't Halt Suit Over State Secrets Defense
-------------------------------------------------------------
Dan Levine, writing for Reuters, reports that the U.S. government
cannot quickly terminate a civil privacy lawsuit over warrantless
wiretapping by arguing that such litigation would expose state
secrets and harm national security, a U.S. judge has ruled.
A group of AT&T Inc. customers filed the proposed class action
against the National Security Agency and Bush administration
officials in 2008, accusing them of improperly operating a
warrantless mass surveillance of U.S. citizens.
The government's monitoring of email traffic has received renewed
scrutiny in recent weeks, following disclosures by former NSA
contractor Edward Snowden of widespread U.S. data collection
efforts.
While U.S. District Judge Jeffrey White in San Francisco did not
end the lawsuit on July 8 on state secrets grounds, he did narrow
the plaintiffs' claims and raised several issues that may
ultimately prevent the case from reaching trial following several
years of litigation.
Cindy Cohn, legal director of the Electronic Frontier Foundation
which represents the plaintiffs, said she hopes the continuing
public court proceedings will prompt Obama administration
officials to reconsider the use of such data collection methods.
"This is a huge victory and a very courageous decision," Ms. Cohn
said. A U.S. Department of Justice spokesman said they are
reviewing the decision and declined further comment.
In his ruling on July 8, Judge White ordered further briefing on
the impact of "recent disclosure of the government's continuing
surveillance activities," along with the statement by the Director
of National Intelligence that certain information from secret
national security courts "should be declassified and immediately
released to the public."
The case in U.S. District Court, Northern District of California
is Jewel et al. vs. National Security Agency et al., 08-4373.
URBAN OUTFITTERS: Faces Class Action Over Customer ZIP Codes
------------------------------------------------------------
Claire Groden, writing for TIME.com, reports that Urban Outfitters
is facing a class action lawsuit for a common request asked at
many retail cash registers: "What's your ZIP code?" The trendy
retailer, along with Anthropologie, allegedly misled customers
into thinking that providing a ZIP code was necessary when paying
with a credit card. It's not, but the information gives companies
access to customers' addresses, which are then often sold or used
for marketing campaigns.
Laws vary by state, but in Washington, D.C., where the lawsuit was
filed, misleading customers into providing extra information is
illegal. But Urban Outfitters and Anthropologie are not the first
stores to face controversy for ZIP code requests. More than 50
such lawsuits have been filed in California alone, and one woman's
case against Williams Sonoma for the misleading prompt made its
way up to the California Supreme Court in 2011, according to
Forbes. The court ruled that stores can't require customers to
provide their ZIP codes, and the Massachusetts Supreme Court ruled
similarly in 2013 in a lawsuit against Michaels.
Some retailers argue that the information is used for market
research that may help companies decide where to open new
locations, according to Fashionista. But until customers
understand exactly how their information is being used, lawsuits
like this are likely to continue popping up.
WELLS FARGO: Overtime Class Action Voluntarily Dismissed
--------------------------------------------------------
Matt Fair, writing for Law360, reports that a Pennsylvania federal
judge on July 9 agreed to allow a voluntary dismissal of a
putative class action alleging that banking and mortgage giant
Wells Fargo NA failed to pay its branch bankers and tellers
overtime wages in violation of state and federal labor laws.
An order signed by U.S. District Court Judge L. Felipe Restrepo
and a stipulation filed jointly by attorneys for both sides in the
dispute did not outline the reasons for the dismissal, or indicate
whether there had been a settlement in the December lawsuit.
Justin Swidler, an attorney with Swartz Swidler LLC representing
the plaintiffs, declined to comment on the case when reached by
Law360 on July 10. Wells Fargo's attorney, Jacob Oslick of
Seyfarth Shaw LLP, likewise opted not to talk about the case.
While the claims of named plaintiff Dianne Smith were dismissed
with prejudice, the order said that allegations leveled by a
second plaintiff, Rodney Watson, who joined the lawsuit in
January, could be refiled.
In her December lawsuit, Ms. Smith claimed that Wells Fargo
violated the federal Fair Labor Standards Act and two related
state laws by requiring its bankers and tellers to conduct pre-
shift security procedures before opening their branches, but
failed to provide overtime pay when those activities resulted in
workweeks exceeding 40 hours.
The suit said the bank's policies also violated the Pennsylvania
Minimum Wage Act and the Pennsylvania Wage Payment Collection Law.
Ms. Smith, who spent 14 years with Wells Fargo before leaving in
April 2010, alleged the bank required employees to conduct
significant pre-shift procedures inside and outside the building,
and to boot up their computers. All this work, the complaint
said, was to be conducted prior to the workers clocking in.
The complaint alleges the plaintiffs routinely spend about 15 to
20 minutes on these uncompensated pre-shift activities, which
results in workweeks in excess of 40 hours. Ms. Smith calls Wells
Fargo's alleged failure to pay overtime "willful," saying the bank
could easily track time spent on pre-shift work since opening
employees are scheduled to work about 15 minutes prior to the time
they can clock in.
In a filing indicating his consent to join the suit, Mr. Watson
said that he too had been subject to unpaid overtime.
"During said time period, I performed unpaid overtime work for the
benefit of Wells Fargo by performing pre-shift security work," he
said. "I wish to be included as a party and to be bound by any
judgment in the claims being asserted against Wells Fargo."
Wells Fargo has faced a slew of overtime wage suits across the
country in the last year.
In September, a trio of former "personal bankers" sued Wells Fargo
in New York federal court, alleging the bank withholds overtime
pay and meal breaks from its branch employees.
And in August, a former loan underwriter hit Wells Fargo with a
proposed class and collective action in California federal court
alleging that company policy made it impossible for loan
underwriters to do their jobs without working significant overtime
hours, yet the bank allegedly prevented employees from claiming
overtime above certain limits in violation of the Fair Labor
Standards Act and California labor laws.
The plaintiffs are represented by Justin Swidler of Swartz Swidler
LLC.
Wells Fargo is represented by Jacob Oslick, Timothy Watson and
Esteban Shardonofsky of Seyfarth Shaw LLP.
The case is Dianne Smith v. Wells Fargo NA, case number 2:12-cv-
06877 in U.S. District Court for the Eastern District of
Pennsylvania.
WHOLE FOODS: Recalls Crave Brothers Cheese After Listeria Outbreak
------------------------------------------------------------------
ABC News' Gillian Mohney and The Associated Press report that
Whole Foods Market Inc. announced on July 5 the recall of a line
of cheeses, which may contain dangerous listeria monocytogenes
bacteria. The recalled cheese, identified as Crave Brothers les
frŠres cheese, was sold in Whole Foods stores in 30 states and
Washington D.C.
On July 3 the U.S. Food and Drug Administration linked a multi-
state listeriosis outbreak, caused by listeria monocytogenes
bacteria, to the cheeses produced by Crave Brothers Farmstead
Cheese in Wisconsin. According to the FDA, the oubreak has
sickened four and killed one.
The Minnesota Department of Agriculture is testing samples of the
cheese and early results indicate that there is listeria
monocytogenes bacteria present in the samples. Further
confirmation of these results is pending.
The recalled cheeses were sold at Whole Foods stores under the
names les frŠres and Crave Brothers les frŠres. The cheese was
covered in plastic wrap with the Whole Foods Market scale labels.
Customers, who bought the cheese, should throw it out and bring in
the receipt for a refund, Whole Foods said.
According to the FDA, five people between the ages of 31 and 67
have been hospitalized as a result of the outbreak. One pregnant
woman is believed to have suffered a miscarriage as a result of
contracting the disease. Cases were reported in Minnesota,
Illinois, Indiana and Ohio.
One elderly person in Minnesota died after contracting the illness
in June.
If ingested, the listeria monocytogenes bacteria can cause
listeriosis, a rare and serious illness. The disease can cause
fever, muscle aches, diarrhea or other gastrointestinal issues.
In pregnant women it can cause miscarriages or stillbirths.
Older people, pregnant women, newborns or people with weakened
immune systems are at the highest risk for contracting the disease
and make up 90 percent of listeria infections, according to the
Centers for Disease Control and Prevention.
The Crave Brothers Farmstead Cheese Company has voluntarily
recalled certain cheeses that were made on or before July 1, 2013,
including their les frŠres cheese, the petit frŠre cheese and the
petit frŠre cheese with truffles.
"We are cooperating with the regulatory agencies' ongoing
investigation of the cause of the potential health risks,"
George Crave, president of the company, said in a statement posted
on the company's website.
Calls to Crave Brothers were not immediately returned. The FDA
and the Wisconsin Department of Agriculture are investigating the
company's processing facilities.
In 2011 a listeria outbreak related to tainted cantaloupes
sickened 147 and killed 33 people.
YAMIT A. BITAHON: Faces NIS100MM Suit Over Airport Parking
----------------------------------------------------------
Ela Levy-Weinrib, writing for Globes, reports that a NIS10 million
class-action lawsuit has been filed with the Tel Aviv District
Court against Yamit A. Bitahon (1998) Ltd., the operator of the
parking lots at Ben Gurion Airport, claiming that it does not meet
the promise of 15 minutes free parking. The petitioner claims
that when a driver inserts a parking ticket into the payment
machine indicating a stay of less than 15 minutes, the company
changes the full NIS 30 fee for one hour.
The petitioner also claims that, belying the company's
advertisements that the cost of parking is NIS30 for "up to one
hour", the moment a driver pays for the first hour (NIS 30), he is
not allowed to leave the parking lot during the first hour. It is
alleged that even though the driver paid for the full first hour,
the respondent prevents him from leaving the parking lot unless he
makes another payment.
The petitioner, Adv. Moran Ben-Naim, through Adv. Shlomi Friedman,
claims that the moment a driver pays for the first hour (NIS 30),
the respondent begins charging him an additional NIS 6 per quarter
hour (or part of it), resulting in a payment of more than NIS 30,
and as high as NIS 48, for the first hour of parking.
"By this conduct, and the holding of the respondent's consumers
'captive' in the parking lot, which can only be exited after
payment of what the company demands, Yamit A. Bitahon misleads its
consumers by concealing pertinent information about the money it
collects from them," says the statement of claim, "exploiting
their helplessness, exploiting their ignorance (inserting the
parking ticket indicating that the driver entered the parking lot
less than 15 minutes before, resulting in a payment in the amount
of NIS30), harming consumers' autonomy (since they are captive
behind a locked gate), and abusing the inequality between it and
its consumers."
* Banks Urge Lawmakers to Ban Retailers' Credit Card Surcharges
---------------------------------------------------------------
Carter Dougherty, writing for Bloomberg News, reports that banks
and payment networks are pressing state lawmakers to bar retailers
from charging customers more to pay with credit cards than with
debit cards or cash.
The laws' supporters say they are trying to protect consumers from
unfair costs when they make purchases with credit cards. Utah has
already passed a law banning such surcharges, and New Jersey may
follow suit. In all, about 20 state legislatures are weighing
legislation related to payment cards, according to the American
Bankers Association.
The move for state laws is an extension of a decade-long fight
between retailers including Home Depot Inc., Wal-Mart Stores Inc.
and Target Corp. and members of the payments industry, including
JPMorgan Chase & Co., the biggest U.S. credit-card lender, and
Visa Inc. and Mastercard Inc., the largest networks, over "swipe"
fees for debit and credit cards. Because retailers generally have
to pay more to banks when their customers use credit cards than
when they buy with debit cards, the banks are trying to prevent
stores from steering buyers to debit transactions.
At stake is an estimated $40 billion that banks take in each year
from credit-card swipe fees, according to Madeline Aufseeser, a
senior analyst with Boston-based consultancy Aite Group LLC.
Banking groups say the push for state laws isn't a coordinated
campaign by the industry. Instead, Trish Wexler, a spokeswoman
for the Electronic Payments Coalition, a trade group for card
issuers and networks, describes it as an "organic" process of
bills arising in states at the same time.
Class-Action Settlement
State lawmakers are responding to a class-action settlement that
went into effect in January that gives retailers more flexibility
to impose surcharges for using different types of cards,
Ms. Wexler said in an interview before she left her position at
the coalition on June 27.
"Legislators heard about it from consumers, read about the
settlement, and pushed it," she said.
Retailers won an earlier round of the battle with card issuers
when the 2010 Dodd-Frank law put a cap on debit-card fees. The
Federal Reserve set that cap at about 24 cents, costing banks and
processors $8 billion per year, Ms. Aufseeser estimated.
Card companies successfully fought off limits on credit-card fees,
in part by arguing that they take on credit risk when issuing
them.
Issuers earn 1 to 3 percent of the purchase price when a customer
uses a credit card, depending on agreements with retailers.
Issuers channel some of those proceeds back to customers in the
form of reward programs and other incentives.
Consumer Choice
Consumer groups, such as U.S. Public Interest Research Group, an
umbrella organization of state-level consumer advocates, side with
the retailers in opposing the state laws. They argue that
consumers and retailers should have more choice, and note that
merchants who minimize payment costs can pass the savings on to
consumers.
"The banks are clearly hard at work trying to deny the merchants
the leverage to keep swipe fees from rising or reduce them,"
Ed Mierzwinski, director of the group's consumer program in
Washington, said in an interview.
The settlement of a class-action antitrust lawsuit against Visa,
Mastercard and a group of banks went into effect at the end of
January, opening the door to surcharging in states that don't
already bar it. State legislators sponsoring anti-surcharge
proposals say their goal is to protect consumers.
Melissa Cassar, a spokeswoman for Visa, said the company has "no
position to share" on the subject of surcharges. Spokesmen at
Mastercard didn't respond to requests for comment.
'Back East'
In Utah, the state bankers association, which includes JPMorgan,
American Express (AXP) Co. and Wells Fargo & Co., cited the class-
action settlement in promoting the law. In a Feb. 19 hearing,
Howard Headlee, the president of the Utah Bankers Association,
told state senators that pricing for consumers is "something that
should be decided not by a handful of attorneys in a room back
East but by a legislative body."
Spokesmen for the companies -- Molly Faust of American Express,
Betty Riess of Bank of America, Jason Menke of Wells Fargo and
Steve O'Halloran of JPMorgan -- declined to comment.
Under federal law, retailers can still offer discounts for debit
or cash even if state law prohibits surcharges. Gas stations, for
example, have long posted two retail prices, one for cash and one
for credit.
The distinction between discounts and surcharges is more than
semantics. Behavioral studies show that consumers react more
forcefully to the threat of a penalty than the offer of a
discount, said Adam Levitin, a law professor at Georgetown
University who has studied payment networks.
Eschewing 'Surcharges'
"Research shows that consumers have a much stronger reaction to
'surcharges,' and are less likely to use credit cards if they
understand that they will have to pay more," Mr. Levitin said in
an e-mail. "Credit-card companies, aware of this effect, have
historically insisted that any price difference be labeled as a
'discount.'"
Retailers have argued that discounts and surcharges are
effectively the same thing. "I have a hard time getting my head
around why giving a discount is okay, but surcharging is illegal,"
said David Davis, president of the Utah Retail Merchants
Association, which opposed the state's anti-surcharge law.
In New Jersey, retailers fought back when legislation banning
surcharges arose, and passed the Senate. It is awaiting action in
the state's other chamber, the General Assembly.
John Holub, president of the New Jersey Retail Merchants
Association, said his group opposed the bill on the grounds that
"there is zero transparency, the banks and the processors charge
these huge fees, and we can do nothing about it."
When he introduced the bill in February, Nicholas Sacco, a senator
in the New Jersey legislature, cast the legislation as a consumer-
protection measure: "Shoppers should not be hit with unfair
surcharges based on how they want to pay."
* Collapsible Laundry Hampers May Cause Serious Eye Injuries
------------------------------------------------------------
Dennis Thompson, writing for HealthDay News, reports that
collapsible laundry hampers can cause serious eye injuries to
children if a sharp wire contained within the device breaks free,
according to a new report.
The researchers documented the cases of two children, one 23
months old and the other 11 years old, who each suffered a
puncture wound in one eye from a collapsible laundry hamper.
The devices collapse and then pop back into shape because they
have embedded within them a flexible wire that winds around the
outside of the cloth hamper.
"The wire has fabric holding it in place, and it's like a
humongous spring," said study co-author Dr. Iris Kassem, an
assistant professor of clinical ophthalmology at the University of
Illinois at Chicago's School of Medicine. "When the fabric
becomes frayed, the wire pops out and the end of the wire is very
sharp."
The 11-year-old boy suffered a corneal laceration while placing
clothes in a collapsible laundry hamper, according to the report.
The wire mechanism within the hamper suddenly snapped up and
struck his right eye, puncturing it.
The report said the 23-month-old girl received her injury after
being poked in the eye from a wire protruding from a collapsible
hamper.
Both patients came to the University of Illinois at Chicago Eye
and Ear Infirmary for treatment within one year of each other.
The cases were detailed online July 1 and in the August print
issue of the journal Pediatrics.
These types of penetrating eye injuries are uncommon but very
serious, said Dr. Alon Kahana, an oculoplastic surgeon at the
University of Michigan Kellogg Eye Center.
"The risk of vision [loss] is acute, and those patients require
immediate evaluation in an emergency room," Dr. Kahana said.
"Outcomes can be very good. There are some patients that end up
with 20/20 vision, [but] there are some patients who end up with
no vision at all."
In both reported cases, the children received prompt emergency
treatment and, as a result, are expected to regain much of the
sight in their injured eyes, Dr. Kassem said.
Both children required eye surgery to repair the damage. They
have since required some vision therapy to fix developmental
problems that occurred as a result of temporarily losing sight in
one eye at such a young age. The boy has suffered from exotropia,
a form of crossed eyes, while the girl has had amblyopia, or lazy
eye.
"They both did extremely well," Dr. Kassem said. "They both got
very lucky. They both beat the odds to do well."
The authors have reported the injuries to the U.S. Consumer
Product Safety Commission, Dr. Kassem said.
They urged parents to be aware of the risk to kids. "Children
shouldn't be playing around these things, and if the integrity of
the hamper is compromised in any way, you need to throw the
product away," Dr. Kassem said.
Dr. Kahana agreed. "When it pokes out, it pokes out with force.
You have the combination of sharp and force," she said. "Most of
these are cheap items not meant for extended use. People should
see when something approaches the end of its useful life and toss
it away."
Dr. Kassem has two kids and, at the time of the injuries, had a
couple of these hampers around her house.
"When the second kid came in with an injury, I said, 'That's
enough of that,' and got rid of the hampers," she said. "It kind
of freaked me out."
* FDA Plans to Revise Prescription Drug Labeling Rules by Sept.
---------------------------------------------------------------
Pharma Letter reports that the US Food and Drug Administration
says it plans to issue a proposed rule to revise FDA regulations
about prescription drug labeling by September, a move that could
open the generic drug makers up to liability if their drugs injure
patients.
According to a description on the Office of Management and
Budget's (OMB) web site, the revised rule would create parity
between brand-name pharma companies and generic drug manufacturers
with respect to revising drug labeling to provide information
about newly discovered risks.
The proposed rule comes shortly after the US Supreme Court ruled
that generic drugmakers cannot be sued under state law for adverse
reactions to their products. The court ruled that a state's law
cannot run against federal laws on prescription medications whose
design has been approved by the FDA.
Senate Judiciary Committee Chairman Patrick Leahy (Democrat,
Vermont) on July 3 welcomed the news that the FDA will move
forward with a Notice of Proposed Rulemaking to ensure that
generic manufacturers of prescription drugs can update their
warning labels to provide better patient safety information to
consumers.
Senator Leahy has long championed this public safety issue,
following two Supreme Court cases in which patients who were
injured by a prescription drug were unable to seek relief from the
drug manufacturer because they took the generic version of the
drug.
"A consumer should not have her rights foreclosed simply because
she takes the generic version of a prescription drug," Sen. Leahy
said, adding: "I welcome this first step by the Food and Drug
Administration to address this troubling inconsistency in the law.
Responsible brand-name and generic manufacturers alike should have
the ability, and the obligation, to give doctors and patients the
information they need to avoid injuries."
Move also welcomed by Public Citizen
Welcoming the announcement, Sidney Wolfe, founder and senior
adviser of Public Citizen's Health Research Group, noted that,
when finalized, the revisions will fill a regulatory gap that
poses a risk to patient safety.
Under current FDA regulations, generic manufacturers cannot update
their products' labeling, even if they become aware of a potential
risk not stated in the labeling. In contrast, brand-name drug
manufacturers can update warnings and precautions before getting
FDA approval.
Almost two years ago, in August 2011, Public Citizen submitted a
citizen petition to the FDA asking it to revise its labeling rules
to fill the safety gap. The FDA's proposal suggests that the
agency plans to grant that petition.
All drugmakers of given drug will be required to submit conforming
labeling
The description on OMB's web site also states that the FDA's new
proposal would address requirements that all manufacturers of the
same drug submit conforming labeling revisions after the FDA has
approved a revision by one manufacturer of that drug.
Many potential hazards are not discovered until years after drugs
have been on the market, as documented in a recent Public Citizen
report, yet, currently, generic drug manufacturers can do little
to warn doctors and patients about newly discovered information,
putting patients at risk.
*********
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
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Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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