/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130718.mbx C L A S S A C T I O N R E P O R T E R Thursday, July 18, 2013, Vol. 15, No. 140 Headlines ADVENTIST HEALTH: Suit Over Patient Data Breach Refiled AMERICAN HONDA: Faces Suit in La. Over Defective Front Grills AMERICAN ORIENTAL: Awaits Order on Bid to Dismiss Securities Suit APPLE INC: Norton Rose Discusses Privacy Class Action Ruling APPLE INC: Porn Filter Suit Warning Sign of Class Actions BAHRAIN AIR: Union Accuses Liquidator of Delaying Class Action BANK OF AMERICA: Disputes HAMP Foreclosure Claims in Class Action BARNHARDT MANUFACTURING: Judge Dismisses Spray Foam Class Action BAYER INC: Faces Class Action Over Faulty Birth Control Device BP PLC: Says Hundreds of Oil Spill Damage Claims Fictitious CAFEPRESS INC: Being Investigated Over Securities Law Violations CALIFORNIA: Sued Over Valley Fever That Kills Prisoners CANADA: RCMP Veterans File Class Action Over Disability Benefits CASH STORE: Faces Class Action in Quebec Over Internal Controls CONNECTICUT COMMUNITY: Settles 2 Suits Over Madoff Scam CONSTELLATION ENERGY: Continues to Defend Royalty Payments Suit COSTCO WHOLESALE: Appeal From Fuel MDL Settlement Still Pending COSTCO WHOLESALE: Continues to Defend "Ellis" Suit in California DOLLAR THRIFTY: Court Refused to Dismiss Suit Over Extra Charges EASYSAVER REWARDS: Center for Class Action Fairness Files Brief EL GRECO: Two Workers File Class Action Over Unpaid Overtime ENVIVIO INC: Continues to Defend IPO-Related Suits in California EXXON MOBIL: EPA Inspects Refinery Following Leak Complaints FREDERICK'S OF HOLLYWOOD: Awaits Prelim. OK of "Weber" Suit Deal FREDERICK'S OF HOLLYWOOD: In Talks With "Harvey-Smith" Parties GENESIS HEALTHCARE: Ogletree Discusses FLSA Class Action Ruling GRAND FALLS-WINDSOR: May Face Suit Over Salmon Festival Crowding HOFFMANN-LA ROCHE: Norton Rose Discusses Accutane Suit Ruling IGATE CORP: Pomerantz Law Firm Files Class Action in California INDIANA: BMV Starts to Issue Credits to Overcharged Hoosiers JOHNSON & JOHNSON: NZ Woman Raises Awareness on Surgical Mesh Woes LAC-MEGANTIC TRAIN: Rochon Genova Files Class Action LAC-MEGANTIC TRAIN: Siskinds Mulls Class Action LINN ENERGY: Kantrowitz Retained to File Securities Class Action LOUISIANA-PACIFIC: 6th Cir. Partially Revives Siding Class Action LUCASFILM: Settles Class Action Over Anti-Poaching Conspiracy MPG OFFICE: Levi & Korsinksy Files Class Action in Maryland NAM TAI: Pomerantz Grossman Files Class Action in New York NATIONAL FINANCIAL: Signs MOU to Settle Merger-Related Suit PILOT FLYING J: Prelim. Class Action Settlement Gets Court OK PINELLAS COUNTY, FL: Sheriff Summoned in Lunch Break Suit Trial PINNACLE ENTERTAINMENT: Defends Consolidated Merger-Related Suit PROGRESSIVE NORTHERN: Judge Rejects Driver Coverage Class Action SAMSUNG TELECOM: Accused of Selling Defective Galaxy S Phones SMARTHEAT INC: Awaits Ruling on Bid to Dismiss Securities Suit ULTA SALON: Continues to Defend Employment Suit in California UNITED STATES: Freddie Mac, Fannie Mae Shareholders File Suit UROPLASTY INC: Glancy Binkow Files Class Action in Minnesota VODAFONE HUTCHISON: LCM Seeks "Ideal Plaintiffs" in Class Action VOTORANTIM CIMENTOS: Continues to Defend "Oliveira" Suit vs. Unit VOTORANTIM CIMENTOS: Still Awaits Decision in "Mato Grosso" Suit VOTORANTIM CIMENTOS: Still Awaits Expert Report in Imbituba Suit VOTORANTIM CIMENTOS: Still Awaits for Fla. AG and DOJs' Next Move VOTORANTIM CIMENTOS: Still Defends Suit Alleging Cartel Formation VOTORANTIM CIMENTOS: Still Negotiates to Settle Serra do Mar Suit YELP INC: Business Owners Appeal Class Action Ruling * Class Actions v. Asbestos Companies Not Possible in Russia * Class Actions Challenge "Church Plan" Status of Pension Plans * Class Actions Over Privacy Breach on the Rise * Fraudsters Target Customers in Bank Fee Class Action * Landscape of Arbitration Agreements Faces Significant Evolution ********* ADVENTIST HEALTH: Suit Over Patient Data Breach Refiled ------------------------------------------------------- Marianne Kolbasuk McGee, writing for HealthcareInfoSecurity, reports that after a federal court dismissed a class action lawsuit filed against Adventist Health System in the aftermath of a data breach affecting 763,000 patients, another case was immediately filed in a state court. The lawsuit stems from a breach involving improper access by a former emergency department worker to the electronic health records of more than 763,000 patients. Authorities say patient information was sold for profit by the employee with a co- conspirator to third parties who pitched legal and chiropractic services to individuals injured in motor vehicle accidents. The federal lawsuit sought unspecified damages for individuals whose sensitive information was inappropriately accessed. It also asked the court to order Adventist to protect all data collected in compliance with HIPAA and industry standards. The suit filed with a state court includes similar details. In his July 3 order, Justice Roy B. Dalton of the U.S. District Court, Middle District of Florida Orlando Division, dismissed the lawsuit filed in the federal court in April, saying the matter should be handled at the state level instead. He cited "lack of subject matter jurisdiction" related to the plaintiff's HIPAA claims. The attorneys who filed the federal lawsuit then immediately re- filed the case in Orange County Circuit Court in Orlando on behalf of Richard Faircloth against Adventist Health System/SunBelt Inc. Not A Federal Case "HIPAA does not provide a private right of action, so plaintiffs generally bring health information privacy or security actions under state law," explains privacy attorney Adam Greene, a partner at Davis Wright Tremaine. "The plaintiffs may allege that a violation of HIPAA is evidence that the defendant violated state law." Regarding the federal case filed against Adventist, Mr. Greene says, "The court held that this implication of HIPAA is insufficient to create jurisdiction in federal court." In his ruling, Dalton wrote, "The plaintiff contends that this [federal] court has subject-matter jurisdiction over this case because his state law claims 'turn on substantial questions of federal law, specifically whether [Adventist] violated HIPAA and its associated regulations.' The defendant argues that this court lacks subject-matter jurisdiction because the mere implication of HIPAA in the plaintiff's state law claims does not mean that the claims arise. The court agrees with the defendant." Many other class action lawsuits involving health data breaches are pending in state, not federal, courts. That includes a suit against Sutter Health in California in the wake of a breach that impacted 4.2 million patients. Edmund Normand, an attorney for the plaintiff in the Adventist case, told Information Security Media Group: "We will seek a remedy for all state and federal violations in state court. The privacy of our medical and financial information is too important to ignore massive security breaches, and our clients deserve the privacy security that they paid for when they purchased the treatment." Mayanne Downs, an attorney who's representing Adventist, declined to comment on the lawsuit. Center of Claim The breach at the heart of Adventist lawsuit involved a former emergency department worker at Florida Hospital Celebration, one of 37 hospitals in Adventist's network. Over a two-year period from 2009 to 2011, the worker improperly accessed the electronic records of more than 763,000 patients treated at several Florida Hospital locations and sold personal information on about 12,000 patients to a co-conspirator, law enforcement officials say. That information was used to solicit legal and chiropractic services for patients involved in motor vehicle accidents, according to law enforcement officials. The former hospital worker, Dale Munroe II, pleaded guilty and was sentenced in January to a year in federal prison for selling patient information he improperly accessed. Two co-conspirators, Munroe's wife Katrina, who was a former insurance worker at Florida Hospital Celebration, and Sergei Kusyakov, who was involved with the operation of two Florida chiropractic centers, also pleaded guilty. Mr. Kusyakov, who authorities allege paid Munroe for the stolen patient information, was recently sentenced to four years in federal prison. Katrina Munroe is awaiting sentencing. Mr. Normand did not provide a total for the number of individuals expected to be part of the class action against Adventist. "We do not have any class certified, but the related criminal actions show many thousands were alleged to have had their data integrity breached and some of them allegedly had data sold to third parties according to the criminal allegations," he says. "When a healthcare provider violates HIPPA and other medical privacy laws, when they do not provide the acceptable standards for data protection, then the health care provider has failed to perform that aspect of the contract." AMERICAN HONDA: Faces Suit in La. Over Defective Front Grills ------------------------------------------------------------- David Schexnaydre, Individually and on behalf of all others similarly situated v. American Honda Motor Company Inc., Case No. 2:13-cv-05025-JTM-KWR (E.D. La., July 9, 2013), is brought on behalf of a class of those who purchased or leased Honda Accord and all other Honda models that have allegedly defective front grills and air conditioning condensers. According to the complaint, front grills are placed in front of the condenser to protect it from damage by road debris. However, Mr. Schexnaydre contends, the Class Vehicles are defective in design, construction and composition because the condenser is placed in a position on the vehicles that is vulnerable to contact from rocks, pebbles and other road debris during normal driving conditions on paved roadways. Despite the clear vulnerability of the condenser and despite being on notice for many years about the alleged defect, Honda failed to design and manufacture the Class Vehicles in a manner that would provide protection to the condenser, he argues. David Schexnaydre is a resident of the City of Mandeville, in Parish of St. Tammany, Louisiana. He leased a 2011 Honda Accord sedan on May 20, 2010. Honda is an automobile design, manufacturing, financing and servicing corporation doing business in all 50 states. Honda designs, manufactures, distributes, markets, services, repairs, sells and leases passenger vehicles, including the Class Vehicles, nationwide. The Plaintiff is represented by: David J. Schexnaydre, Esq. PAJARES & SCHEXNAYDRE, LLC 68031 Capital Trace Row Mandeville, LA 70471 Telephone: (985) 292-2020 Facsimile: (985) 235-1089 E-mail: dschexnaydre@pajares-schexnaydre.com david@pslawfirm.com AMERICAN ORIENTAL: Awaits Order on Bid to Dismiss Securities Suit ----------------------------------------------------------------- American Oriental Bioengineering, Inc., awaits ruling on a motion to dismiss a securities class action lawsuit pending in California, according to the Company's June 11, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. On June 22, 2012, a putative class action complaint was filed by Kevin McGee against American Oriental Bioengineering Inc, Eileen Brody, Binsheng Li, Yangchun Li, Tony Liu, Cosimo Patti, Xianmin Wang, and Lawrence Wizel alleging violations of Section 10b of the Securities Exchange Act of 1934 and liability pursuant to Section 20(a) thereunder. The gravamen of the complaint, as subsequently amended centers on the accounting treatment of the sale of an interest held by the Company's subsidiary, Nuo Hua Investment Company Limited and the Company's Restatement filed on November 14, 2011. Several motions were filed for appointment as lead plaintiff, and on October 16, 2012, the Court appointed lead plaintiff, consolidated the cases, and ordered that a consolidated complaint be filed, which occurred on November 19, 2012. The served defendants (AOB, Brody, Wizel and Patti) moved to dismiss the consolidated complaint, and on March 25, 2013, those motions were granted with leave to amend. On April 15, 2013, the Plaintiffs filed a Second Amended Complaint, which the served Defendants moved to dismiss on May 15, 2013. In the interim, the Court granted the Plaintiffs' motion for leave to serve most of the remaining Defendants by alternative means, and on May 15, 2013, the parties entered into a stipulation consenting to the filing of a Third Amended Complaint ("TAC," setting forth no new paragraphs), deeming the TAC served on all defendants, deeming the motion to dismiss the Second Amended Complaint interposed against the TAC, and reserving all rights of the un-served Defendants. American Oriental Bioengineering, Inc. -- http://www.bioaobo.com/ -- is a Beijing, China-based, vertically integrated pharmaceutical company dedicated to improving health through the development, manufacture and commercialization of a broad range of pharmaceutical and healthcare products. A majority of the Company's current products are manufactured using plant based materials. The Company's business is comprised of prescription pharmaceutical products, over-the-counter pharmaceutical products and nutraceutical products. APPLE INC: Norton Rose Discusses Privacy Class Action Ruling ------------------------------------------------------------ Christine A. Carron, Esq. -- christine.carron@nortonrosefulbright.com -- at Norton Rose Fulbright reports that the Quebec Superior Court recently authorized a class action against Apple Inc. that is notable for two reasons: first, it is one of the first Quebec class actions based on alleged breaches of privacy and second, it sets a very low bar for authorization. In Gad Abilia c. Apple Inc. the court authorized a class action alleging a deliberate breach of privacy by Apple. Petitioner claims Apple knowingly allowed third parties to design apps that when downloaded would provide valuable personal information without first informing users of this fact and obtaining their consent. This is one of the first class actions based on an infringement of privacy rights outside the health sector. In authorizing the action, the court noted that if the allegations proved to be correct, they would entitle class members to punitive damages, even in the absence of compensatory damages. The court also set the bar for certification extremely low. In doing so, it noted that the issue of which apps obtained informed user consent prior to downloading personal information and which invaded the privacy of users, are all issues that could be sorted out on the merits. Similarly, the fact the class was defined to include all who had downloaded such apps, including those who might have consented, was also an issue for the merits. APPLE INC: Porn Filter Suit Warning Sign of Class Actions --------------------------------------------------------- Jon Hood, writing for Consumer Affairs, reports that Apple has seen its share of litigation, but this may be the most interesting suit yet. Chris Sevier, 36 a Nashville lawyer and model, wants "all [of Apple's] devices," including the iPhone, sold "in 'safe mode,' with software preset to filter out pornographic content." Mr. Sevier's trail of tears began when he bought a MacBook Pro, which came with the web browser Safari already installed. Mr. Sevier "accidentally misspelled 'facebook.com,'" according to the complaint, "which lead [sic] him to 'fuc[*]book.com' and a host of websites that caused him to see pornographic images that appealed to his biological sensibilities as a male and lead [sic] to an unwanted addiction with adverse consequences." Mr. Sevier admits in the complaint that he "loves Apple . . . and knows that it has good intent," and is certain that the company is "concerned with the welfare of our Nation's children, while furthering pro-American values." Nevertheless, Mr. Sevier wants Apple to "set the example for all device makers" and equip all of its devices with strict controls on access to porn, requiring the user to "take proactive steps to block pornographic images." "Apple is hijacking great sex" Among the reasons Mr. Sevier gives for his request are "patriotism" ("American [sic] is in many respect [sic] a lighthouse for the rest of the world to follow, arguably because it was formed on Judeo-Christian values . . . Apple should set the example for device makers all over the world . . ."); "knowledge" ("the burden to safe guard [sic] its consumers should fall on Apple, not the purchasers who would otherwise not like to be inflicted with the myriad of problems that stem from viewing porn"); and that "Apple is hijacking great sex by failing to sell its products in safe mode" ("pornography . . . obviously encourages lust, which hijacks great sex, making the thrill of engaging in deviant behavior the primary objective of intercourse"). Whether any of these colorful opinions constitutes a legal cause of action remains to be seen. In his complaint, Mr. Sevier suggests that there will be a groundswell of outrage if Apple does not comply with his suggestion, writing that "Apple should see this lawsuit as a warning sign of the class action lawsuits to follow in the event Apple elects to resist the Plaintiff's reasonable request." "Save . . . countless marriages" Mr. Sevier insists in his complaint that he "is not a proponent of legislating morality in the extreme," writing that "members of society should not be prosecuted for 'being human.'" Nevertheless, he says that porn controls on Mac devices could "save ... countless marriages [and] impact generations to come." The complaint, filed in federal court in Tennessee, alleges fraudulent misrepresentation, products liability, outrageous conduct and intentional infliction of emotional distress, and negligent infliction of emotional distress. BAHRAIN AIR: Union Accuses Liquidator of Delaying Class Action -------------------------------------------------------------- Ahmed Al Omari, writing for Gulf Daily News, reports that a liquidator has been accused of holding up a class action lawsuit by hundreds of former Bahrain Air staff fighting for unpaid severance packages. Union leaders earlier agreed to a deal that would see staff get 24 days pay for every year they worked for the carrier, plus leave and indemnity for foreign employees. But 345 former employees are still waiting for half their money six months after the airline went into voluntary liquidation. The Bahrain Air Trade Union (BATU) planned to file a class action lawsuit to increase pressure on shareholders to pay out. But a spokesman said it cannot be done without crucial documentation that the legal liquidator, Mourad Consultancy, has not given them access to. "I have been trying for more than a week to file a single case that includes all the 345 Bahrain Air staff but the court requires several pieces of original documents," he said. "The problem with that is that the legal liquidator has all the original documents and, although we have the copies, the courts require original documentation. "The people at the court felt my frustration after multiple visits and recommended that I get all Bahrain Air staff to file cases in smaller groups of three to six people as less documentation will be required. "I have opened a case along with two other colleagues and I hope all the other Bahrain Air staff do the same." According to the unionist, more than 100 of the 345 Bahrain Air staff are without work and morale is low as they believe the country has turned its back on them. "People seem to have forgotten about us and we have been lost in all the bureaucracy," he said. "The Labour Ministry was supposed to help us find alternative work but it is a very long process and still there are so many of us out of work -- more than 100 the last time I checked. "It seems the company has done whatever it could to stop the government from pressuring it to pay us. "Although we have now begun to file cases, but because all the cases are small there will be much less media coverage, and that will make our cases go on for ages." The airline earlier paid staff 40 per cent of their entitlement in March and another 10pc in April, but BATU will now go to court as the remaining 50pc was not handed over. It is understood the outstanding severance packages amount to BD1.1 million. However, 34 former staff have not received any payout because they filed compensation cases against the company before the liquidator starting paying out settlements. "When the settlement was signed with the liquidator at the Labour Ministry it was made clear that all the staff would be paid their remaining 50pc within three months following the sale of the company assets, which are its spare parts," he said. "That time has lapsed and the spare parts are still not sold so what does that mean for all of us who put everything into this company?" Mourad Consultancy declined to comment on the class action lawsuit. "For any information on any case you will have to ask the employees themselves," said lawyer Mohammad Mourad. BANK OF AMERICA: Disputes HAMP Foreclosure Claims in Class Action ----------------------------------------------------------------- Mark Gongloff, writing for The Huffington Post, reports that Bank of America is fighting back in court against former employees who claim the bank encouraged them to push homeowners into foreclosure instead of the government's mortgage-relief program. In a court filing on July 12 seeking to keep homeowners from teaming up to file a class-action lawsuit, Bank of America's lawyers said that the whistleblowers had "wildly misrepresented their duties at the bank" and declared that the claims they made were "impossible." Last month, in support of the homeowners' lawsuit, seven former bank employees filed sworn affidavits claiming that Bank of America had encouraged them to push delinquent mortgage borrowers looking for relief under the government's Home Affordable Modification Program (HAMP) into foreclosures or in-house mortgage modifications instead, so the bank could make more money. Some of the whistleblowers said that they had seen the bank offer rewards to employees, including $500 cash bonuses and gift cards to Target and Bed Bath and Beyond, for excellence in making borrowers' lives miserable. Bank employees were encouraged to doctor bank records, delay HAMP application processing and lie to customers in order to make this happen, the whistleblowers claimed. Bank employees who complained about the system were fired, according to their affidavits. In its response on July 12, Bank of America says the whistleblowers had little or no involvement in processing HAMP claims and so couldn't possibly have seen the kinds of things they claim they saw. If such things existed, which they didn't, says the bank. "In sum, the declarants could not have witnessed what they claim to have witnessed because they were not in a position to do so -- and would not have witnessed such things in any event because Bank of America's actual practices were diametrically opposite," the bank's court filing says. The bank says that six of the seven whistleblowers were motivated to lie because they had been fired for "inappropriate behavior," including threatening a coworker with violence, sending inappropriate text messages and "bullying." The whistleblowers could not immediately be reached for comment. As Consumerist's Chris Morran points out, the bank does not try to deny the claims of one ex-employee, who said she worked in customer service and was instructed to tell every HAMP applicant who called that their case was "under review," even if it had not been touched in months or if their plea for loan modification had already been rejected. Bank of America was one of the big U.S. banks that settled federal claims of abusive mortgage-foreclosure practices last year, agreeing to pay nearly $12 billion and clean up its act. In May, New York Attorney General Eric Schneiderman said he planned to sue Bank of America and Wells Fargo for failing to live up to the terms of that settlement in their handling of mortgages. In its filing, Bank of America claims that "other employees" say "the bank bent over backwards to help borrowers seeking HAMP modifications" and that "employees were often contacted directly by borrowers wishing to express thanks for their help on HAMP applications." BARNHARDT MANUFACTURING: Judge Dismisses Spray Foam Class Action ---------------------------------------------------------------- HarrisMartin reports that a federal judge has dismissed several causes of action brought by homeowners against Barnhardt Manufacturing Co. and an installer of Barnhardt's spray foam insulation, but denied defendants' efforts to dismiss the class action entirely or decline jurisdiction. Judge DuBois of the U.S. District Court for the Eastern District of Pennsylvania filed an order July 8 granting in part and denying in part motions by Barnhardt and McGlaughlin Spray Foam Insulation, but dismissed the individual causes of action without prejudice and said plaintiffs could re-plead negligent supervision, breach of express warranties and medical monitoring claims. BAYER INC: Faces Class Action Over Faulty Birth Control Device -------------------------------------------------------------- Kevin Martin, writing for QMI Agency, reports that hundreds of Alberta women may have been affected by an allegedly faulty birth- control device, says a Calgary lawyer who has filed a class-action suit. Clint Docken said on July 12 the actual amount of damages in the claim which currently seeks C$100 million will depend on how many women come forward. "We've heard from a number (already)," Mr. Docken said. "I suspect it's going to be in the hundreds." The lawsuit, filed in Calgary Court of Queen's Bench on behalf of a city woman, says the Mirena intrauterine device, marketed and sold by Bayer Inc., has caused physical injuries. "The biggest problem is this thing migrated right through the uterus," Mr. Docken explained of the IUD's malfunction. "That's a pretty arbitrary number," Mr. Docken said of the $100- million figure. The woman had the device inserted about two years ago, but had to have it removed because of the discomfort and injuries she says it caused. BP PLC: Says Hundreds of Oil Spill Damage Claims Fictitious ----------------------------------------------------------- Mica Rosenberg and Kathy Finn, writing for Reuters, report that faced with hundreds of damage claims it says are fictitious and inflated, BP must decide whether to dive into a protracted legal battle it had sought to avoid when it settled a class action over the 2010 Gulf of Mexico oil spill. The British oil giant asked the Fifth U.S. Circuit of Appeals in New Orleans last week to halt the claims. Should its challenge before the three-judge panel fail, BP will face a choice: ask for a hearing by all the court's judges, appeal to the U.S. Supreme Court, or try picking off individual cases one by one, legal experts say. BP declined to comment on what its strategy would be. At issue is how to interpret a 1,000-page settlement document BP negotiated with a committee of lawyers working on behalf of thousands of individuals and businesses affected by the Deepwater Horizon rig explosion. The blast killed 11 men and dumped millions of barrels of oil into the Gulf in one of the country's worst environmental disasters. BP estimated the settlement, approved by a U.S. District Court in Louisiana in 2012, would cost $7.8 billion, but the payouts may end up ballooning to billions more. The company has already paid more than $2 billion toward the 198,021 claims filed under the agreement. Overall it says it handed out over $10 billion to those affected by the spill and around $14 billion in cleanup and response costs. Several lawyers not involved in the case said BP should have known it might be on the hook for more money and erred by agreeing to a deal that had no payout cap. BP said it stands by the settlement but insists the problem is the person appointed by the court to dole out the money, Louisiana trial lawyer Patrick Juneau. The tussle is over how the administrator is calculating the amount of business losses due to the spill a claimant can be compensated for. BP takes issue with the time frame and the accounting methods Mr. Juneau is using. Geoff Morrell, a BP spokesman, said Mr. Juneau's "misinterpretation" of the agreement "has ignited a feeding frenzy among trial lawyers attempting to secure money for themselves and their clients that neither deserves." In a statement, Mr. Juneau said, "the proper place to address issues concerning the settlement agreement is in the courts." U.S. District Judge Carl Barbier of New Orleans, who is overseeing the explosion of spill-related litigation, has repeatedly backed Mr. Juneau's interpretation. So BP appealed to the higher court. Legal Options At times during the oral arguments on July 8, the Fifth Circuit judges threw tough comments at BP's lawyer Ted Olson, who served as U.S. solicitor general under President George W. Bush. "The parties can't come in and change the agreement after it's been made," Judge James Dennis said. There is no time limit for the Fifth Circuit to decide BP's appeal. If the three judges rule against BP, the company can ask for what is called an "en banc" hearing at the same court but in front of all the Fifth Circuit judges. Fewer than 3 percent of en banc hearing requests are granted, according to the Fifth Circuit's website. Also built into the settlement agreement itself is an internal appeal process that BP can use to challenge individual payments it believes were excessive and victims can use if they feel they were wrongly denied. Internal appeal panels are chosen by Judge Barbier from a list of nominees put forward by both sides. Thousands of appeals have already been filed this way. The process can be costly: There is a filing fee, and if the ruling goes against BP, the company is required to pay 5 percent over and above the original damage award. If either side is not satisfied with the decision of the internal panel, they can ask Judge Barbier to take up a discretionary review on a case-by-case basis. Joseph Rice, a lawyer who spent a year and a half debating the settlement terms with BP on behalf of the plaintiffs, said BP has taken a handful of cases to this stage, but Judge Barbier has not chosen to hear them yet. If all else fails, of course, there is always the highest court in the land. That would be a long shot for BP. Arthur Miller, an expert on civil litigation at New York University, doubts it will go that far, saying the Supreme Court prefers to hear cases that set legal precedent and are not focused on narrow contract questions. "This is a one-off situation." Settling in the first place was meant to help BP avoid drawn-out litigation, like the 20-year legal brawl over the 1989 Exxon Valdez spill off Alaska. Claimants who opted in to BP's deal gave up their right to sue the company later. The contested settlement replaced a process overseen by Kenneth Feinberg, an attorney who managed compensation for the victims of the September 11 attacks. Some plaintiffs were upset that damage awards under Feinberg were not flowing fast enough, and both sides agreed it would be better to settle. Judge Barbier is also overseeing a separate, multi-billion-dollar case to determine BP's federal pollution fines under the Clean Water Act, with potentially much higher liabilities. The second phase of that trial begins in September. CAFEPRESS INC: Being Investigated Over Securities Law Violations ---------------------------------------------------------------- Two law firms have announced that they are investigating CafePress Inc. on behalf of those who purchased the Company's securities. The Firms -- Law Offices of Howard G. Smith and Holzer Holzer & Fistel, LLC -- are looking into whether the Company violated securities laws by issuing false statements in connection with its March 29, 2012 initial public offering. Howard G. Smith's Statement Law Offices of Howard G. Smith announces that it is investigating potential claims on behalf of purchasers of the securities of CafePress, Inc. ("CafePress" or the "Company") (NASDAQ:PRSS) concerning possible violations of federal securities laws. The investigation focuses on allegations that certain statements issued by the Company between March 28, 2012, and July 30, 2012, regarding CafePress's business, operations and financial condition were false and misleading. CafePress operates an e-commerce platform enabling customers to create, buy and sell various customized and personalized products worldwide. The investigation relates to the Company's July 30, 2012 announcement that the Company's net loss for the 2012 fiscal second quarter had increased -- to $260,000, or 2 cents per share, from $129,000, or 1 cent per share, a year earlier -- and that the Company was lowering its guidance forecast moving forward. On this news, shares of the Company's stock declined $5.61 per share, or 40.95%, to close on July 31, 2012, at $8.09 per share, on unusually heavy trading volume. If you purchased CafePress's securities between March 28, 2012, and July 30, 2012, if you have information or would like to learn more about these claims, or if you wish to discuss these matters or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact Howard G. Smith, Esquire, of Law Offices of Howard G. Smith, 3070 Bristol Pike, Suite 112, Bensalem, Pennsylvania 19020 by telephone at (215) 638-4847, Toll Free at (888) 638-4847, or by e-mail to howardsmith@howardsmithlaw.com, or visit the firm's Web site at http://www.howardsmithlaw.com/. Holzer Holzer & Fistel's Statement Holzer Holzer & Fistel, LLC is investigating whether CafePress Inc. and/or certain of its officers complied with the federal securities laws in issuing statements in connection with its initial public offering of March 29, 2012. Specifically, the investigation focuses on statements issued by CafePress in its Registration Statement and IPO Prospectus regarding competition and the nature of its business. If you purchased CafePress common stock between May 28, 2012, and July 31, 2012, and suffered losses on that investment, you are encouraged to contact Holzer Holzer & Fistel, LLC and its attorneys Michael I. Fistel Jr., Esq. or Marshall P. Dees, Esq. via e-mail at mfistel@holzerlaw.com, or mdees@holzerlaw.com, or via toll-free telephone at (888) 508-6832 regarding your legal rights. Holzer Holzer & Fistel, LLC is an Atlanta, Georgia law firm that dedicates its practice to vigorous representation of shareholders and investors in litigation nationwide, including shareholder class action and derivative litigation. More information about the firm is available through its Web site, http://www.holzerlaw.com/and upon request from the firm. CALIFORNIA: Sued Over Valley Fever That Kills Prisoners ------------------------------------------------------- Elizabeth Warmerdam at Courthouse News Service reports that 40 people have died of valley fever in the past seven years in two California prisons in the San Joaquin Valley, inmates say in a federal class action. Valley fever, Coccidioidomycosis, is an incurable, debilitating, infectious lung disease caused by inhalation of an airborne fungus. Seventy percent of the reported cases of valley fever in California from 1991 through 1993 arose in the San Joaquin Valley, according to a 1994 "Morbidity and Mortality Weekly Report" by the U.S. Centers for Disease Control and Prevention. Seven inmates and former inmates who contracted the disease at either Avenal State Prison or Pleasant Valley State Prison filed the class action against Gov. Jerry Brown, the Department of Corrections and Rehabilitation, and prison officials. Avenal State Prison (ASP) and Pleasant Valley State Prison (PVSP) are 10 miles away from each other in Avenal and Coalinga. The plaintiffs claim that California has done nothing to prevent high-risk prisoners, including African Americans and people 55 and older, from contracting the disease. The complaint states: "Coccidioidomycosis (commonly known as 'Valley Fever' or 'San Joaquin Valley Fever' or simply 'cocci') has long been known as a serious infectious disease which is contracted by the inhalation of an airborne fungus, 'Coccidioides Immitis.' Cocci is endemic in the soil of various areas of the Southwest. Nowhere is it more prevalent however, than in the San Joaquin Valley of California; i.e., Fresno and Kings Counties.... "It is well known that disseminated Coccidioidomycosis is progressive, painful, and debilitating, and that it is uniformly fatal once it progresses to meningitis, if left untreated." The disease does not have a vaccine or an absolute cure. Treatments include surgical excision of tissue and bone, or taking the drug Fluconazole every day for life, plaintiffs say. "Epidemiological studies have established that, for unknown reasons, African-Americans, persons over the age of 55, and those in an immune-compromised state are at higher risk for developing the disseminated form of Coccidioidomycosis. [In fact, for African-Americans, the risk is tenfold that of the general population.]," plaintiffs say in the complaint. (Brackets in complaint.) Plaintiffs sued on behalf of three subclasses: African Americans, people 55 and older, and people who are immune-compromised who have been incarcerated at Pleasant Valley or Avenal prisons since July 8, 2009, and who have contracted Valley Fever. The defendants have been aware since at least 2006 that Valley Fever attacks prison inmates within these subclasses, but have failed to take adequate steps to protect them from the disease, plaintiffs say. "Approximately 40 inmates in the custody and control of defendants have died from cocci complications within the past seven years," according to the complaint. A 2007 article in the Annals of the New York Academy of Sciences "pointed out that the construction of new prisons in affected areas has led to a marked increase in the number of cocci cases and identified the high infection rates at these facilities," the complaint states. It continues: "In the previous year, 2006, the California State Public Health Department ('SPHD') published a formal study and report on cocci. Preventative measures were identified, however, the great majority of these measures were never implemented at any state prison facility, nor at either PSVP or ASP." The state failed to screen for inmates who are at high risk for valley fever and place them at facilities other than Pleasant Valley and Avenal prisons, the plaintiffs say. Without keeping high-risk individuals out of these prisons or taking measures to prevent their exposure to the disease, "the incarceration of the subclasses at PVSP and ASP was the equivalent of conducting a human medical experiment on the inmates, without their consent. While the great percentage of inmates might be expected to survive the disease, for an unacceptable percentage of inmates, including the plaintiff subclasses identified here, assignment to these facilities was a potential death sentence," plaintiffs say in the complaint. Once infected people are released from the prison system, they are on their own, without any compensation for the "additional punishment that has been unfairly added to their sentences," plaintiffs say. "Moreover, once released from defendants' custody, no health care system or assistance is provided by defendants to assist the plaintiff subclasses with the overwhelming cost and hazards associated with their illness. The defendants simply absolve themselves of all responsibility, leaving these former inmates who are African-Americans, over-55, and/or immune-compromised to fend for themselves in their attempt to obtain health-care for an illness that -- if left untreated -- is uniformly fatal," plaintiffs say in the complaint. Two weeks ago, U.S. District Judge Thelton Henderson ordered state corrections officials to move 2,600 high-risk inmates out of Avenal and Pleasant Valley prisons in an attempt to deal with the Valley Fever problem. The state has 90 days from the date of the order to move the prisoners. It is unclear whether this development will have any affect on plaintiffs' lawsuit. Named as defendants are the State of California, Gov. Edmund Brown, the California Department of Corrections and Rehabilitation (CDCR), CDCR Secretary Matthew Cate, CDCR Secretary Jeffrey Beard, PVSP Warden P.D. Brazelton, AVSP Warden James Hartley, and California Correctional Health Care Services. Plaintiffs seek punitive damages and a comprehensive, court- supervised medical monitoring program for the subclasses. The Plaintiffs are represented by: J. Paul Gignac, Esq. Mike Montalban Arias, Esq. ARIAS, OZZELLO & GIGNAC LLP 6701 Center Drive West, 14th Floor Los Angeles, CA 90045 Telephone: (310) 670-1600 Facsimile: (310) 670-1231 E-mail: j.paul@aogllp.com marias@aogllp.com - and - Ian Michael Wallach, Esq. Jason Kenneth Feldman, Esq. FELDMAN & WALLACH 606 Venice Boulevard, Suite C Venice, CA 90291 Telephone: (310) 577-2001 Facsimile: (310) 564-2004 E-mail: ian@feldmanwallach.com jason@feldmanwallach.com The case is Jackson, et al. v. State of California, et al., Case No. 1:13-cv-01055-LJO-SAB, in the U.S. District Court for the Eastern District of California. CANADA: RCMP Veterans File Class Action Over Disability Benefits ---------------------------------------------------------------- The Canadian Press reports that wounded RCMP veterans are pressing the federal government to stop clawing back their disability benefits. Former Nova Scotia and Newfoundland Mountie David White has launched a class-action lawsuit against the government to stop the practice. Mr. White says the clawback is costing him nearly $1,300 per month. Mr. White, who served for more than 20 years, is the representative plaintiff in a class-action suit started in 2008. It could represent up to 1,000 Mounties. He suffered hearing loss and developed sound sensitivity a decade ago in two service- related accidents in the mid-1990s and 2001. The incidents led to his involuntary release from the RCMP in 2002, for which he was given a pain and suffering pension from Veterans Affairs and long-term disability for several hearing impairments linked to his 30 years of service. But Mr. White and other injured RCMP members say most of that money is clawed back under a system similar to one that a judge deemed harsh and unfair in a class-action lawsuit by military veterans, but which still applies to the police veterans. As months drag on, he says aging and injured RCMP veterans are dying before they see any money returned to them. "It's disappointing," Mr. White said at his lawyer's office in downtown Halifax. "Some of our veterans are suffering and the clawback being stopped is definitely going to help them. They're getting older and it would be nice to have it resolved before too long." RCMP want same consideration as injured military vets Dan Wallace, Mr. White's lawyer, was set to meet with federal attorneys on July 15 in the hopes of crafting a deal for injured RCMP veterans who have seen their awards heavily skimmed off since 1975. Mr. Wallace, who also handled the protracted military veterans' case, said several meetings with Justice Department lawyers have been cancelled over the last year and a settlement has not been proposed for a class that could number around 800 people. He says it's not clear why Ottawa has allowed the case to drag on after a Federal Court judge ruled in May 2012 that Canadian Forces veterans should not have their awards clawed back because the money is not income. "People need the money and people are dying, so it would be nice for them to see the day when it ends," Mr. Wallace said. "It's really a question of dignity for a lot of these folks, so we hope the government will do the right thing." The need to move it along became clear in 2009 with the death of Gerard Buote, the man who initiated the case a year earlier. Soon after, White took over as the lead plaintiff. Mr. Wallace says if the meeting fails to produce proposals to settle the matter and end the clawback, the group will head to court in the fall to have the case certified as a class action. He says he's heard from about 200 people so far who want to join. Pierre-Alain Bujold, a spokesman with the Treasury Board, said in an email that he wouldn't comment on the case because it is before the courts. Both the Royal Canadian Legion and the Veterans Ombudsman have urged Ottawa to end the practice, calling it unfair and unnecessary in the wake of the Federal Court decision. Mr. White was diagnosed with tinnitus, which causes a steady ringing in his ears, hearing loss and hyperacusis, which effectively makes every sound -- like the turning of a page or water dripping -- extremely loud. He wears several devices, including hearing aids, earplugs and a machine, to deaden the sound but says nothing can take away the steady thrum in his ears. "I deal with this every day," he says. "I was medically discharged from the RCMP, I was unable to work, I can't go to large sporting events or anything where there's noise. But the income that I'm supposed to get from a disability pension is considered wage loss . . . and I lose it and that doesn't make sense to me." The government reduces RCMP veterans' long-term disability benefits by the amount of their disability pension. Mr. White was assessed by Veterans Affairs at being 42% disabled and has $1,297 disability benefits. He gets the remaining $67 per month. He estimates that he's lost $100,000 since he was released from the force. Mr. Wallace says he will ask for a return of all money that was clawed back, with interest. About 8,000 wounded military veterans were awarded a $887.8- million dollar settlement after former army sergeant Dennis Manuge launched a class-action suit against Ottawa in 2007. CASH STORE: Faces Class Action in Quebec Over Internal Controls --------------------------------------------------------------- The Cash Store Financial Services Inc. on July 16 disclosed that a proposed class action proceeding has been commenced in Quebec against the Company and certain of its present and former directors and officers. The claim is substantially similar to the recently announced proposed class action proceedings in New York, Alberta and Ontario and the previously disclosed complaint filed by Globis Capital Partners L.P. The plaintiffs allege, among other things, that the Company made misrepresentations during the period from November 24, 2010 to May 24, 2013 regarding the Company's internal controls and financial reporting and the third-party loan portfolio acquisition. The Company plans to defend itself vigorously against what it believes are unfounded allegations. The Company acknowledges that substantially similar class actions may continue to be commenced in Alberta, Ontario, New York and Quebec, as well as other jurisdictions. To the extent that such substantially similar proceedings are commenced, the Company will provide disclosure in its quarterly and annual filings. About Cash Store Financial Headquartered in Edmonton, Alberta, The Cash Store Financial is the only lender and broker of short-term advances and provider of other financial services in Canada that is listed on the Toronto Stock Exchange (TSX: CSF). Cash Store Financial also trades on the New York Stock Exchange (NYSE: CSFS). Cash Store Financial operates 512 branches across Canada under the banners "Cash Store Financial" and "Instaloans". Cash Store Financial also operates 25 branches in the United Kingdom. Cash Store Financial is a Canadian corporation that is not affiliated with Cottonwood Financial Ltd. or the outlets Cottonwood Financial Ltd. operates in the United States under the name "Cash Store". Cash Store Financial does not do business under the name "Cash Store" in the United States and does not own or provide any consumer lending services in the United States. Cash Store Financial employs approximately 1,900 associates. CONNECTICUT COMMUNITY: Settles 2 Suits Over Madoff Scam ------------------------------------------------------- James Sterngold, writing for The Wall Street Journal, reports that in one of the first lawsuits to go to trial involving Bernard L. Madoff's massive fraud, a group of investors is nearing a settlement with a Connecticut bank that they said should have uncovered the Ponzi scheme years before it collapsed, according to a lawyer involved in the cases whose clients aren't settling. The tentative settlement, reached just as the two sides were about to deliver closing arguments, may return a fraction of the $60 million that the investors said they lost. But any sums could be a blow for the bank, Connecticut Community Bank and its branch, Westport National Bank, which are controlled by William R. Berkley, chairman of a large insurance company. The bank, which has reported losses for the last four years, also faces a $28 million lawsuit from the trustee overseeing the liquidation of Mr. Madoff's securities firm and it is operating under a formal order from the Office of the Comptroller of the Currency demanding operational improvements as a result of what the regulator said were "unsafe and unsound" practices and violations of the law, according to a notice on the comptroller's website. Bill Mahone, the bank's general counsel, declined to comment on any of the suits. A spokesman for Mr. Berkley's insurance company, W.R. Berkley Corp., and Mr. Berkley's son, W. Robert Berkley Jr., who is the insurance company's president and a shareholder in the bank, didn't return calls or emails. The bank has maintained in the trial that it had few responsibilities beyond keeping records based on the fictitious accounts provided by Mr. Madoff's firm, handling occasional requests for redemptions and collecting fees. Mr. Madoff is serving a 150- year sentence in federal prison. The bankruptcy trustee, Irving Picard, has recovered $9.35 billion for investors so far. The customers of the Connecticut bank haven't been able to seek any recovery from Mr. Picard because technically they weren't direct customers of Mr. Madoff's firm The bank held money as custodian from more than 100 customers and had invested about $60 million in Mr. Madoff's firm, one of the largest Ponzi schemes in history, according to the suits. The money was lost after Mr. Madoff admitted to the scheme in December 2008, and his fund collapsed. Since the investors were legally customers of the bank, not Mr. Madoff's firm, they sued Connecticut Community Bank, alleging that it failed to take any steps to verify that Mr. Madoff actually held their assets and was earning the steady returns he claimed. The officer who oversaw the accounts testified in the trial, which began in June in U.S. District Court in Hartford, that he had received bundles of trading records from Mr. Madoff but had tucked them in files without verifying them. There were three separate federal suits by the customers, and a fourth in state court in Connecticut. The plaintiffs came from a range of states including Florida, New York, Ohio and Texas. The three federal cases were tried together, and the state case is pending. Customers in two of the three federal suits agreed to settle according to an email that was circulated on July 12, said Steven Gard, a lawyer for the plaintiffs in the one case that declined a settlement. The tentative settlements include the state case. The dollar amounts haven't been disclosed, Mr. Gard said, and since one of the federal suits was a class action it would require the judge's approval. Closing arguments in Mr. Gard's case, which covers two bank customers from Florida, are scheduled for Monday. His clients are seeking the return of about $1.2 million, he said. The other lawyers in the case, for the plaintiffs and the defendants, declined to comment on a settlement. The settlement and a possible verdict in the remaining lawsuit, as well as the bankruptcy trustee's suit, could come at a bad time for the bank. It reported $39 million in capital as of March 31, according to the latest data available on the website of the Federal Deposit Insurance Corp. From 2009 through the first quarter of this year, the bank, which operates in one of the wealthiest areas of the Northeast, lost $21 million, according to the FDIC data. The bank doesn't have liability insurance to cover any payments made from the Madoff case, according to court documents. Its coverage was canceled in this case because of an exemption for bankruptcies like Mr. Madoff's firm, according to court records. The bank sued its insurer but lost and the judgment was upheld after an appeal in 2011, according to the records. In 2009, the bank signed a 26-page formal written agreement with the Comptroller after an examination found unsafe and unsound banking practices, relating to credit and compliance risk management, and violations of the law at the bank, according to the document. The agreement doesn't detail the violations but it requires better board oversight and improved operations in every aspect of the business. CONSTELLATION ENERGY: Continues to Defend Royalty Payments Suit --------------------------------------------------------------- Constellation Energy Partners LLC continues to defend itself and a subsidiary against a class action lawsuit over royalty payments, according to the Company's May 31, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission. Jerry and Betty Wattenbarger, and Patricia Webb have filed a Class Action petition against Constellation Energy Partners LLC (CEP), Newfield Exploration Mid-Continent, Inc., and CEP Mid-Continent, LLC (CEPMC), a subsidiary of the Company, alleging they own oil, gas and mineral interests in lands and wells located in Nowata County, Oklahoma, subject to oil and gas leases owned and operated by Newfield, CEPMC or CEP and that the Defendants have underpaid royalties due and owing on the true value received or that should have been received by the Defendants for production from the Wattenbargers' and Webb's mineral interests. The lawsuit is captioned Jerry and Betty Wattenbarger and Patricia Webb, Individually and as Class Representatives on behalf of all similarly situated persons v. Newfield Exploration Mid-Continent, Inc., CEP Mid-Continent, LLC and Constellation Energy Partners, LLC. The Wattenbargers and Webb have alleged, among other things, breach of implied covenant to market; breach of express and implied lease obligations; violation of statutory law; breach of duty of good faith and fair dealing and of the duty to act as a reasonably prudent operator; breach of fiduciary duty; constructive fraud and failure to disclose facts surrounding deductions made from royalty payments. The Wattenbargers and Webb seek certification of a statewide class of plaintiffs, specify that class claims against CEPMC and CEP relate to the proper payment for production occurring on or after February 1, 2007, and limit damage claims against all Defendants to no more than $75,000 with respect to each Plaintiff and no more than $5 million in the aggregate for the Plaintiffs and the individual putative class members, in each case exclusive of interest and costs, but inclusive of any attorneys' fees. On December 1, 2011, this lawsuit was removed upon motion of the Defendants from the District Court of Nowata County, Oklahoma, to the United States District Court for the Northern District of Oklahoma. CEPMC and CEP filed their Answer to the Plaintiffs' petition on December 28, 2011, and filed a motion to defer class certification filings and proceedings on November 2, 2012, pending an appeal to the Tenth Circuit Court of Appeals addressing class certification orders in two royalty underpayment cases unrelated to this lawsuit. On November 28, 2012, the Northern District Court granted CEPMC and CEP's motion to strike the Scheduling Order and motion to stay with the parties free to discuss settlement and to conduct discovery as to issues relevant to settlement discussions and jurisdiction matters. On January 21, 2013 CEPMC and CEP filed Responses to the Wattenbargers and Webb's Second Request for Production of Documents. CEPMC and CEP intend to vigorously defend themselves in the lawsuit. Until the matter progresses further, the Company is unable to assess the likelihood of an unfavorable outcome or to estimate the amount or range of any possible loss to CEPMC or CEP. Houston, Texas-based Constellation Energy Partners LLC is a limited liability company formed in 2005 to acquire oil and natural gas reserves. All of the Company's oil and natural gas reserves are currently located in the Mid-Continent region of the United States, including the Cherokee Basin of Kansas and Oklahoma, the Woodford Shale in Oklahoma, and the Central Kansas Uplift in Kansas. COSTCO WHOLESALE: Appeal From Fuel MDL Settlement Still Pending --------------------------------------------------------------- Numerous putative class actions have been brought around the United States against motor fuel retailers, including Costco Wholesale Corporation, alleging that they have been overcharging consumers by selling gasoline or diesel that is warmer than 60 degrees without adjusting the volume sold to compensate for heat- related expansion or disclosing the effect of such expansion on the energy equivalent received by the consumer. The Company is named in the following actions: Raphael Sagalyn, et al., v. Chevron USA, Inc., et al., Case No. 7-430 (D. Md.); Phyllis Lerner, et al., v. Costco Wholesale Corporation, et al., Case No. 7-1216 (C.D. Cal.); Linda A. Williams, et al., v. BP Corporation North America, Inc., et al., Case No. 7-179 (M.D. Ala.); James Graham, et al. v. Chevron USA, Inc., et al., Civil Action No. 7-193 (E.D. Va.); Betty A. Delgado, et al., v. Allsups, Convenience Stores, Inc., et al., Case No. 7-202 (D.N.M.); Gary Kohut, et al. v. Chevron USA, Inc., et al., Case No. 7-285 (D. Nev.); Mark Rushing, et al., v. Alon USA, Inc., et al., Case No. 6-7621 (N.D. Cal.); James Vanderbilt, et al., v. BP Corporation North America, Inc., et al., Case No. 6-1052 (W.D. Mo.); Zachary Wilson, et al., v. Ampride, Inc., et al., Case No. 6-2582 (D. Kan.); Diane Foster, et al., v. BP North America Petroleum, Inc., et al., Case No. 7-2059 (W.D. Tenn.); Mara Redstone, et al., v. Chevron USA, Inc., et al., Case No. 7-20751 (S.D. Fla.); Fred Aguirre, et al. v. BP West Coast Products LLC, et al., Case No. 7- 1534 (N.D. Cal.); J.C. Wash, et al., v. Chevron USA, Inc., et al.; Case No. 4:7cv37 (E.D. Mo.); Jonathan Charles Conlin, et al., v. Chevron USA, Inc., et al.; Case No. 7 317 (M.D. Tenn.); William Barker, et al. v. Chevron USA, Inc., et al.; Case No. 7-cv-293 (D.N.M.); Melissa J. Couch, et al. v. BP Products North America, Inc., et al., Case No. 7cv291 (E.D. Tex.); S. Garrett Cook, Jr., et al., v. Hess Corporation, et al., Case No. 7cv750 (M.D. Ala.); Jeff Jenkins, et al. v. Amoco Oil Company, et al., Case No. 7-cv- 661 (D. Utah); and Mark Wyatt, et al., v. B. P. America Corp., et al., Case No. 7-1754 (S.D. Cal.). On June 18, 2007, the Judicial Panel on Multidistrict Litigation assigned the action, entitled In re Motor Fuel Temperature Sales Practices Litigation, MDL Docket No 1840, to Judge Kathryn Vratil in the United States District Court for the District of Kansas. On April 12, 2009, the Company agreed to settle the actions in which it is named as a defendant. Under the settlement, the Company agreed, to the extent allowed by law, to install over five years from the effective date of the settlement temperature- correcting dispensers in the States of Alabama, Arizona, California, Florida, Georgia, Kentucky, Nevada, New Mexico, North Carolina, South Carolina, Tennessee, Texas, Utah, and Virginia. Other than payments to class representatives, the settlement does not provide for cash payments to class members. On September 22, 2011, the court preliminarily approved a revised settlement, which did not materially alter the terms. On April 24, 2012, the court granted final approval of the revised settlement. A class member who objected has filed a notice of appeal from the order approving the settlement. The Plaintiffs have moved for an award of $10 million in attorneys' fees, as well as an award of costs and payments to class representatives. The Company has opposed the motion. No further updates were reported in the Company's June 11, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 12, 2013. Costco Wholesale Corporation and its subsidiaries operate membership warehouses based on the concept that offering members low prices on a limited selection of nationally branded and select private-label products in a wide range of merchandise categories will produce high sales volumes and rapid inventory turnover. The Issaquah, Washington-based Company also operates online businesses at costco.com in the U.S., costco.ca in Canada, and costco.co.uk in the U.K. COSTCO WHOLESALE: Continues to Defend "Ellis" Suit in California ---------------------------------------------------------------- Costco Wholesale Corporation continues to defend itself against a class action lawsuit titled Shirley "Rae" Ellis v. Costco Wholesale Corp., according to the Company's June 11, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 12, 2013. A case brought as a class action on behalf of certain present and former female managers, in which plaintiffs allege denial of promotion based on gender in violation of Title VII of the Civil Rights Act of 1964 and California state law, Shirley "Rae" Ellis v. Costco Wholesale Corp., United States District Court (San Francisco), Case No. C-4-3341-MHP. The Plaintiffs seek compensatory damages, punitive damages, injunctive relief, interest, and attorneys' fees. Class certification was granted by the district court on January 11, 2007. On September 16, 2011, the United States Court of Appeals for the Ninth Circuit reversed the order of class certification and remanded to the district court for further proceedings. On September 25, 2012, the district court certified a class of women in the United States denied promotion to warehouse general manager or assistant general manager since January 3, 2002. Currently the class is believed to be approximately 1,150 people. A trial has been set for January 2014. Costco Wholesale Corporation and its subsidiaries operate membership warehouses based on the concept that offering members low prices on a limited selection of nationally branded and select private-label products in a wide range of merchandise categories will produce high sales volumes and rapid inventory turnover. The Issaquah, Washington-based Company also operates online businesses at costco.com in the U.S., costco.ca in Canada, and costco.co.uk in the U.K. DOLLAR THRIFTY: Court Refused to Dismiss Suit Over Extra Charges ---------------------------------------------------------------- William Dotinga, writing for Courthouse News Service, reports that Dollar Rent a Car must face class-action claims that its practice of tacking extra charges onto contracts violates consumer law, a federal judge found. Sandra McKinnon and Kristen Tool sued Dollar Thrifty Automotive Group, an Oklahoma-based rental car company with more than 835 locations in the United States, after renting vehicles in Oklahoma and California, respectively. The women claimed that they orally declined additional services like liability insurance, but that Dollar employees misled them into checking boxes on the electronic pad that added the services onto their contracts. They claim in their class action that Dollar relies "on the hustle and rush of airports to send their customers away without having reviewed their rental charges, thereby giving Dollar a basis for claiming that their customers routinely agree to the add-on charges." Additionally, McKinnon and Tool allege that Dollar built its business model on incentivizing the practice, by paying its agents minimum wage but offering a 12 percent commission on add-ons and threatening to fire employees who fail to average 30 up-sales per day. The women brought actions for violations of California's unfair competition law and the Consumer Legal Remedies Act, a violation of a similar Oklahoma consumer law, and breach of contract and implied covenant. Dollar moved to dismiss the class action, largely on grounds that California law does not apply to out-of-state companies and transactions. The Company also argued that the contract on which McKinnon and Tool relied -- the online reservation -- does not constitute a true and final contract, which the women received when they picked up their vehicles. U.S. District Judge Samuel Conti agreed that the unlawfulness prong of California unfair competition claim cannot apply to out- of-state transactions. Since Dollar's business practices could amount to a nationwide scheme to trick customers, however, that defeats the presumption against extraterritoriality as to the unfair and fraudulent prongs of the state law. "Plaintiffs' pleadings have raised new facts suggesting that the court's analysis should change -- specifically, plaintiffs explain how Ms. McKinnon was harmed by reserving a car in California, being promised a certain price, and then being defrauded by a widespread scheme that defendants have engineered to produce exactly the outcome she suffered," Conti wrote. Dollar's alleged conduct in California "does not only amount to the provision of a price quote and the completion of an automated reservation process," the judge continued. "Based on plaintiffs' reasonably specific pleadings, defendants have a national scheme involving providing low reservation rates and then tricking customers into paying more once they pick up their cars. Plaintiffs' second amended complaint sufficiently makes clear that the presumption against extraterritoriality does not apply to limit plaintiffs' action in this case, and that defendants' conduct is more than mere endemic dishonesty -- it is actionable under the unfair competition law as an unfair and fraudulent business practice." Conti also found that Dollar's confirmation of an online reservation is a contract since it contains prices that must be honored. "Plaintiffs agreed, through a contract of adhesion, to pay what they thought was a fair price -- after all, if they knew that defendants would defraud them and make them pay more money, they would have rented cars from a more honest dealer," Conti wrote. "Defendants' refusal to honor the confirmation price in any way, and in fact to convince plaintiffs of the price's validity and then to alter it secretly, was a breach." Dollar Thrifty Automotive Group is a Fortune 1000 company, formed by Chrysler in 1990. Hertz acquired the Company in late 2012 for $2.3 billion. The Plaintiffs are represented by: Alan M. Mansfield, Esq. WHATLEY KALLAS LLC 1 Sansome Street, 35th Floor, PMB #131 San Francisco, CA 94104 Telephone: (415) 860-2503 Facsimile: (888) 331-9633 E-mail: alan@clgca.com - and - Joe R. Whatley, Jr., Esq. WHATLEY DRAKE & KALLAS LLC 380 Madison Avenue, 23rd Floor New York, NY 10017 Telephone: (212) 447-7070 Facsimile: (212) 447-7077 E-mail: jwhatley@wdklaw.com - and - Patrick J. Sheehan, Esq. WHATLEY KALLAS, LLC 60 State Street, 7th Floor Boston, MA 02109 Telephone: (617) 573-5118 Facsimile: (212) 447-7077 E-mail: psheehan@watleykallas.com - and - Alan M. Mansfield, Esq. THE CONSUMER LAW GROUP 10200 Willow Creek Road, Suite 160 San Diego, CA 92131 Telephone: (619) 308-5034 Facsimile: (888) 341-5048 E-mail: alan@clgca.com The Defendants are represented by: Peter S. Hecker, Esq. SHEPPARD MULLIN RICHTER & HAMPTON LLP Four Embarcadero Center, Seventeenth Floor San Francisco, CA 94111-4109 Telephone: (415) 434-9100 Facsimile: (415) 434-3947 E-mail: phecker@sheppardmullin.com - and - John Ward, Esq. Ross B. Bricker, Esq. JENNER AND BLOCK LLP 353 N. Clark St. Chicago, IL 60654-3456 Telephone: (312) 222-9350 Facsimile: (312) 840-7650 E-mail: jward@jenner.com rbricker@jenner.com - and - Kenneth E. Keller, Esq. KRIEG KELLER SLOAN ROMAN & HOLLAND LLP 555 Montgomery Street, 17th Floor San Francisco, CA 94111 Telephone: (415) 249-8330 Facsimile: (415) 249-8333 E-mail: kkeller@kksrr.com The case is McKinnon, et al. v. Dollar Thrifty Automotive Group, Inc., et al., Case No. 3:12-cv-04457-SC, in U.S. District Court for the Northern District of California. EASYSAVER REWARDS: Center for Class Action Fairness Files Brief --------------------------------------------------------------- Ted Frank, an adjunct fellow at the Manhattan Institute Center for Legal Policy, in an article for PointofLaw.com, reports that in February, the district court approved the coupon settlement in In re EasySaver Rewards Litigation and an $8.85M attorney award, and the Center for Class Action Fairness filed an appeal on behalf of its objector client. On July 12, the Center for Class Action Fairness filed its opening brief, with the following issues presented: 1. The Class Action Fairness Act ("CAFA") expressly contemplates and sets forth rules for coupon settlements that include relief other than coupons. 28 U.S.C. Sec. 1712. Did the district court err as a matter of law in holding that CAFA did not apply to a coupon settlement because it also paid class members a total of about $225,000 in cash? 2(a). 28 U.S.C. Sec. 1712 requires that a court calculating an attorney fee for a "proposed settlement in a class action [that] provides for a recovery of coupons to a class member" to value the coupons "based on the value to class members of the coupons that are redeemed." Accord In re HP Inkjet Printer Litig., No. 11- 16097, -- F.3d --, 2013 WL 1986396 (9th Cir. May 15, 2013). Did the district court commit an error of law in determining attorneys' fees without determining the "value to class members of the coupons that are redeemed" and ascribing a $20 value to a coupon that was not stackable with already existing discounts? 2(b). In the alternative, if the Class Action Fairness Act does not apply, did the district court commit clear error in finding that the value of the settlement was $38 million and awarding $8.85 million in attorney awards, when the class would receive only about $225,000 in cash plus coupons that were unlikely to be redeemed and even less likely to be redeemed in such a manner to provide the full face value to class members? 3. Nachshin v. AOL, LLC, 663 F.3d 1034 (9th Cir. 2011), held that it was error for cy pres to favor local charities when there was a national class, and criticized the possibility of conflicts of interest between class counsel and cy pres recipients. Did the district court commit an error of law or abuse its discretion in approving a cy pres component of a settlement involving a national class that favored the alma mater of class counsel, and only distributed funds to local San Diego-area institutions? 4(a). Under Klier v. Elf Atochem N. Am., Inc., 658 F.3d 468 (5th Cir. 2011), a settlement fund "belongs solely to the class members." Did the district court err as a matter of law in approving a settlement that provided over $3 million for cy pres but only about $225,000 for class members when there were class members who had not been fully compensated and 99.8% of the class had not made claims? 4(b). In the alternative, if Klier does not apply, In re Baby Products Antitrust Litig., 708 F.3d 163 (3d Cir. 2013), requires a district court to consider the ratio of cy pres to actual class recovery when evaluating the fairness of a settlement. Did the district court err as a matter of law in rejecting Perryman's request that this factor be considered where cy pres recipients would receive more than ten times as much cash as the class would and class counsel would receive more than forty times as much? As always, the Center is not affiliated with the Manhattan Institute. EL GRECO: Two Workers File Class Action Over Unpaid Overtime ------------------------------------------------------------ Georgia Pabst, writing for the Journal Sentinel, reports that two workers at El Greco Family Restaurant have filed a federal lawsuit contending the business and its owner failed to pay them overtime. The plaintiffs are seeking to make the case a class-action suit. Omar Chavez worked as a dishwasher and chef's assistant. Juan Garcia was employed as a chef at the restaurant, 9143 W. Appleton Ave. The restaurant and its owner, Gus Gliatis, are named as defendants. No one from the restaurant was available for comment. In the complaint, the workers allege they and others who have worked there as a chef, chef's assistant, cook and/or dishwasher were not paid time and a half for working more than 40 hours in any given week. They say that when they worked more than 40 hours a week they were paid at the regular pay rate and not paid overtime, which means their wages fell below the minimum wage in violation of wage laws. Further, they contend that El Greco did not maintain complete and accurate time records. The complaint states that Mr. Gliatis "specifically was involved in the decisions to implement certain policies that resulted in El Greco failing to pay its chefs, chef's assistants, cooks and dishwashers the minimum wage (and) overtime compensation . . . ." It's not clear how many other workers might be affected if the plaintiffs succeed in getting class-action status, according to the complaint. ENVIVIO INC: Continues to Defend IPO-Related Suits in California ---------------------------------------------------------------- Envivio, Inc., is defending itself against class action lawsuits arising from its initial public offering, according to the Company's June 11, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 30, 2013. On October 5, 2012, a complaint captioned Wiley v. Envivio, Inc., et al. CIV-517185, was filed in the Superior Court of California, County of San Mateo, naming as defendants the Company, each of its directors, its chief executive officer, its chief financial officer, and certain underwriters of the Company's initial public offering. The lawsuit purports to be a class action on behalf of purchasers of shares issued in the IPO and generally alleges that the registration statement for the IPO contained materially false or misleading statements. The complaint purports to assert claims under the Securities Act of 1933, as amended, and seeks unspecified damages and other relief. On October 19, 2012, a similar complaint captioned Toth v. Envivio, Inc. et al. CIV- 517481 was filed in the same court. On November 2, 2012, the defendants removed the cases to the United States District Court for the Northern District of California where they were assigned case numbers 12-cv-05637-CRB and 12-cv-05636-CW. A similar complaint was filed in the United States District Court for the Northern District of California on December 20, 2012, entitled Thomas v. Envivio, Inc., et al. C 12-06464. The Company is, at this time, unable to assess whether any loss or adverse effect on its financial condition is probable or remote or to estimate the range of potential loss, if any. San Francisco, California-based Envivio, Inc. is a provider of software-based IP video processing and distribution solutions that enable the delivery of high-quality video to consumers. The Company's research and development center is located in the metropolitan area of Rennes, France, and it has a presence in Australia, Austria, Brazil, China, England, India, Japan, Singapore and the United Arab Emirates. EXXON MOBIL: EPA Inspects Refinery Following Leak Complaints ------------------------------------------------------------ Susan Buchanan, writing for Huffington Post, reports that government agencies and neighbors are keeping an eye on Baton Rouge's ExxonMobil complex, located next to the Mississippi River on Scenic Highway north of the Governor's Mansion. Neighbors want the authorities and the plant to do more to lower emissions and to alert them about hazardous discharges. Meanwhile, the Louisiana Dept. of Environmental Quality is deciding how it might penalize ExxonMobil for not reporting changes in a June 2012 leak. Last month, New Orleans lawyers Smith Stag, LLC filed a class action suit on behalf of residents affected by that leak. Neighbors are watching the U.S. Environmental Protection Agency for its handling of findings from a surprise inspection of the complex's refinery last July. Tonga Nolan, secretary of the Standard Heights Community Association, last week said her young daughter became violently ill in the early hours of June 14, 2012 after a chemical leak at ExxonMobil. Standard Heights is directly south of the complex. "We're footsteps from the Exxon plant, my daughter's bed was near what you'd call a showcase window and the fumes got in," Ms. Nolan said last week. "She was vomiting and bleeding, and we rushed her to the hospital." Ms. Nolan said as a child she viewed Exxon, Honeywell and other nearby plants as places where people made a living. Since then, she's become concerned about industrial threats. "Our community doesn't have a park, and our kids are playing outside with runny eyes and noses, asthma and nosebleeds," she said. Ms. Nolan noticed a lot of what seem to be premature deaths and wonders why. "In the last seven years, thirteen neighbors on my street of all ages, up to 65, have died of emphysema, cancer, female and other problems," she said. Smith Stag, LLC in New Orleans filed a class action suit last month of behalf of ten African American, Standard Heights residents and seven minor children, sickened by the June 14, 2012 leak. Early in the morning of the accident, a bleeder plug, which slowly drains off gas and liquids at the complex's Aromatics Production Unit, leaked benzene and other hazardous substances. "On the day of the incident and in a report to DEQ six days later, Exxon grossly underestimated the amount and types of hazardous substances emitted," attorney Stuart Smith said last week. The suit, seeking compensation for personal injuries, pain and suffering and property damage, will be tried in state district court in East Baton Rouge in a year or two. Residents of Dixie and other communities near the plant can join the petitioners, Smith said. "It's time that ExxonMobil faces the music, acknowledges people's losses and then moves them out of that neighborhood," he said. ExxonMobil reported its June 14, 2012 incident in a timely manner, Louisiana Dept. of Environmental Quality spokesman Rodney Mallett said last week. But after that, the company failed to notify DEQ of changes in the nature and rate of its discharges, he said. DEQ filed a compliance order and potential penalty notice against ExxonMobil on July 19, 2012. According to background information in that order, the company discovered the leaking bleeder plug at around 4:35 a.m. on June 14 and notified the Louisiana State Police of an unauthorized discharge at around 5:04 a.m. ExxonMobil reported that the release was controlled at 5:06 a.m. and said the amount of benzene emitted had exceeded the state's required, reportable quantity or RQ of ten pounds. Then the company reported it had surpassed the state's RQ of 1,000 pounds for toluene. The next day, ExxonMobil said that 1,364 pounds of benzene had been emitted on June 14. In a June 20, 2012 report submitted to DEQ, ExxonMobil detailed pollutants released on June 14 as follows: 28,688 pounds of benzene, 10,882 pounds of toluene, 1,100 pounds of cyclohexane, 1,564 pounds of hexane and 12,605 pounds of additional Volatile Organic Compounds. Last August, the company admitted its June 14 releases had been greater than what it reported on June 20. But according to ExxonMobil, the June 14, 2012 leak wasn't a health threat. "ExxonMobil conducted air monitoring at more than a hundred points along our fence line on the day of the incident, and with DEQ we continued to monitor air quality for two weeks after the incident," Stephanie Cargile, public and government affairs manager at ExxonMobil Baton Rouge, said last week. "Four types of air-monitoring equipment were used for a total of 236 readings. With respect to the fence line along Scenic Highway, all readings were well below the state's ambient air standard for benzene. Only two of the 236 readings taken detected any emission readings at all. These two readings were at the 0.20 parts per million level, which is a fraction of the state's annual ambient air standard for benzene and below standards set by the National Institute for Occupational Safety and Health and the Occupational Safety and Health Administration." Ms. Cargile said ExxonMobil and DEQ received no community complaints of odors or health impacts on June 14, 2012 or in the week after the incident. "Unfortunately, activist groups spread misinformation after the plant incident, trying to incite fear and concern by alleging that it had impacted the community," she said. The company kept the community informed, Ms. Cargile said. "On the morning of the incident, we proactively notified local media and elected officials," she said. An ExxonMobil community phone line was updated with incident information, and the company phoned civic association contacts and members of its Community Dialogue Group over the next few days. Company managers talked with Baton Rouge neighbors at face-to-face meetings, she said. "We provided factual information and answers to clarify the misinformation circulated by activists." EPA made a surprise visit to the Baton Rouge refinery from July 16 to 20, 2012 to see if it was in compliance with the Clean Air Act. An EPA report about the visit, obtained by the New Orleans-based Louisiana Bucket Brigade in February under the Freedom of Information Act, said the refinery contained heavily corroded pipes and ruptured pipelines; pipes and other equipment were overdue for internal inspection; and documentation for emergency and shutdown procedures was incomplete. "We have reviewed findings from the inspection with EPA to fully understand each allegation," Cargile said last week. EPA's report wasn't a citation or notice of violation, she said, and the company has given EPA additional information since the inspection to address its concerns. "The EPA is still reviewing the inspection report to evaluate whether any of its observations require enforcement action," she said. Fast forward from last summer at the plant to this spring. A leak in a tail gas clean-up unit at ExxonMobil's refinery was reported to DEQ on May 22. DEQ issued a compliance order and notice of potential penalties to ExxonMobil on May 24, and said an ongoing leak from a pipe had released up to 24 tons of sulphur dioxide a day. The compliance order required ExxonMobil to take all steps needed to meet air quality regulations; reduce production until repairs were completed; conduct offsite monitoring; and control sulphur dioxide emissions. On May 30, the Louisiana Bucket Brigade did a door-to-door survey of 92 residents in Standard Heights, asking about the impact of the sulphur dioxide leak. Thirty six percent said they had suffered nausea, 22 percent reported headaches, 15 percent had respiratory irritation, 7 percent had eye irritation and 4 percent reported skin problems. Standard Heights residents phoned the Bucket Brigade during the plant incident and reported foul smells, the Brigade said. Residents interviewed last week said they want to be notified about excess emissions. Tonga Nolan said she and her mother have never received calls from ExxonMobil about imminent, hazardous releases. But Lois Dorsey, a retired school teacher who lives next to the Exxon plant gate in Dixie, said she and her neighbors do receive phone calls. And Dorsey contacts the plant when she has concerns. "Recently, I asked the plant if it was prepared for hurricane season, and they said they were," she said last week. Ms. Dorsey, a 64-year-old retired school teacher, has grown up next to the plant. "I may be the longest resident near the plant in Dixie," she said. Ms. Dorsey is asthmatic but hasn't had an attack in years. "The air is cleaner than it used to be," she said. "I watch my diet, have regular checkups and keep a log." She also keeps her windows closed. Ms. Dorsey is a member of ExxonMobil's Community Dialogue Group in Baton Rouge. She said anyone can attend the group's meetings. Melanie Heck, a clerical worker and single mom of four raising two kids in Standard Heights, said she constantly worries about her children if they're home when she's at work. Her big fear is plant lockdowns. "In an emergency, we're supposed to shut our windows, turn off the air conditioning and stay in the house," she said. "The plant takes injured employees to the hospital but we can't drive away." If she's home, the moment she hears a siren from the plant she gets her kids in the car and drives off before the area is cordoned. "The authorities lock us in here in ten minutes," she said. Mr. Mallet said any orders to shelter in place are made by local law-enforcement authorities. "We don't make that call at DEQ," he said. Rhonda Swazer, a six-year resident of Standard Heights, last week said if she threw a rock from her back door, it would hit the ExxonMobil plant. "Odors from the plant aren't bad every day," she said. "But when they are bad, it's like whoa," she exclaimed. "Suddenly you're nauseated, have a killer headache and need to lie down." On those occasions, her 26-year-old son lies down and coughs a lot. "We'd like Exxon to warn us before they start burning something so we can leave," Ms. Swazer said. She doesn't receive warning calls from the plant. Stephanie Anthony, a former Standard Heights resident who moved away after Gustav damaged her home last August, said Standard Heights, Dixie and other communities nearby, including nearby schools, are polluted. "The company sends out newsletters about how much they're doing to help the schools, and employees from the plant do some tutoring," she said. "But those are Band-Aid approaches." If ExxonMobil really wanted to do something meaningful it would have clinics and asthma camps for kids in the area, she said. "Exxon's like a man who gives the image of being an ideal husband and father to his fishing buddies but meanwhile he's not taking care of his family," Ms. Anthony said. Last week, Ms. Cargile said interaction between company employees and residents is important. "We regularly host Community Dialogue Group meetings, where those who live near our plants can speak directly with company management about our operations," she said. "We maintain a 24-hour, information phone line with the current status of our operations at 225-977-0410. We distribute a quarterly newsletter to about 26,000 households, participate in civic and neighborhood meetings, and offer tours and employee speakers for neighborhood groups." Ms. Cargile said the company's Baton Rouge employees spend 40,000 hours a year volunteering in local schools and non-profits. "They roll up their sleeves at events like HOPE Fest, where more than 700 neighbors enjoy science demonstrations and learn about community resources, and the United Way Day Action, in which employees painted the cafeteria at Istrouma High School." Both events are sponsored by ExxonMobil. She weighed in out-of-town environmental groups. "Visiting activists who go from community to community to fund raise, spread misinformation and use media stunts to garner attention simply have no role here," Ms. Cargile said. ExxonMobil's environmental performance in Baton Rouge continues to improve, Ms. Cargile said. "From 1990 to 2012, we saw a 75 percent decrease in VOC emissions, a 63 percent decrease in SO2 emissions, a 39 percent decrease in NOX emissions and a 73 percent decrease in CO emissions," she said. Flare VOC emissions at the complex declined by more than 31 percent from 2010 to 2012. "These improvements resulted from an investment of about $250 million per year in new projects locally to better protect the environment," she said. Safety continues to improve at ExxonMobil Baton Rouge, Ms. Cargile also said. "The Baton Rouge complex had its best-ever, personnel safety performance in 2012, with a Total Recordable Incident Rate down 35 percent from 2011 and down 75 percent from the previous five-year period," she said. "Over the past five years, we have reduced the number of incidents that exceed a reportable quantity, with an 86 percent reduction of events at our refinery and a 47 percent reduction at our chemical plant." Among the neighbors interviewed for this story, however, all but one felt ExxonMobil Baton Rouge needs to do more to reduce emissions, increase plant safety and keep them informed. And residents don't want to be chastised for questioning conditions at the Baton Rouge complex. Tonga Nolan said speaking out about her concerns and working as a neighborhood advocate got her fired from her job as an attorney early this year. But she said safety of her family and community is more important to her than her profession. "I'm a mother, daughter and family member first and then an attorney," she said. FREDERICK'S OF HOLLYWOOD: Awaits Prelim. OK of "Weber" Suit Deal ---------------------------------------------------------------- Frederick's of Hollywood Group Inc. is awaiting preliminary approval of its settlement of a class action lawsuit filed by Michelle Weber, according to the Company's June 11, 2013, Form 10- Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 27, 2013. On February 2, 2012, a former California store employee filed a purported class action lawsuit in the California Superior Court, County of San Francisco, naming Frederick's of Hollywood, Inc., one of the Company's subsidiaries, as a defendant (Michelle Weber, on behalf of herself and all others similarly situated v. Frederick's of Hollywood, Inc., Case No. CGC-12-517909). The complaint alleges, among other things, violations of the California Labor Code, failure to pay overtime, failure to provide meal and rest periods and termination compensation and violations of California's Unfair Competition Law. The complaint seeks, among other relief, collective and class certification of the lawsuit (the class being defined as all California retail store hourly employees), unspecified damages, costs and expenses, including attorneys' fees, and such other relief as the Court might find just and proper. The Company contests these allegations and denies any liability with respect to the lawsuit. On April 2, 2012, the Company answered the Plaintiff's first amended complaint. The parties agreed to stay discovery proceedings, engaged in mediation, and on May 23, 2013, the parties entered into a Joint Stipulation of Settlement and Release, which was filed with the Court on May 31, 2013. Without admitting or denying liability, the Company has agreed to pay a gross settlement amount of $365,000 in connection with the settlement. The hearing for the Court's preliminary approval of the settlement was scheduled for June 26, 2013, at which time a final approval hearing date will be set. After preliminary approval, class members will receive notice of the settlement and will have an opportunity to elect not to participate or file objections to the settlement. The Company expects that funding of payment of the settlement will occur in the second quarter of fiscal year 2014. Frederick's of Hollywood Group Inc. -- http://www.fredericks.com/ -- through its subsidiaries, sells women's apparel and related products under its proprietary Frederick's of Hollywood(R) brand predominantly through U.S. mall-based specialty stores and through its catalog and Web site. The Company was incorporated in New York and is headquartered in Hollywood, California. FREDERICK'S OF HOLLYWOOD: In Talks With "Harvey-Smith" Parties -------------------------------------------------------------- The class action lawsuit initiated by Kassandra Harvey-Smith has been stayed while the parties discuss the possibility of settlement, according to Frederick's of Hollywood Group Inc.'s June 11, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended April 27, 2013. On December 18, 2012, a former California store employee filed a purported class action lawsuit in the California Superior Court, County of Los Angeles, against the Company, Frederick's of Hollywood, Inc. and Frederick's of Hollywood Stores, Inc. (Kassandra Harvey-Smith, on behalf of herself and all others similarly situated v. Frederick's of Hollywood Group Inc. et al, Case No. BC497673). The complaint alleges, among other things, violations of the California Labor Code, failure to pay overtime, failure to provide meal and rest periods and termination compensation, various additional wage violations and violations of California's Unfair Competition Law. The complaint seeks, among other relief, collective and class certification of the lawsuit (the class being defined as all California retail store hourly employees), unspecified damages, costs and expenses, including attorneys' fees, and such other relief as the Court might find just and proper. The Company contests these allegations and intends to vigorously defend the lawsuit. This lawsuit is in its early stages and the Court has ordered a 90-day stay while the parties discuss the possibility of settlement. Accordingly, the Company is unable to estimate its potential liability in the event of an unfavorable outcome with respect to these allegations. Frederick's of Hollywood Group Inc. -- http://www.fredericks.com/ -- through its subsidiaries, sells women's apparel and related products under its proprietary Frederick's of Hollywood(R) brand predominantly through U.S. mall-based specialty stores and through its catalog and Web site. The Company was incorporated in New York and is headquartered in Hollywood, California. GENESIS HEALTHCARE: Ogletree Discusses FLSA Class Action Ruling --------------------------------------------------------------- Patrick F. Hulla, Esq. -- patrick.hulla@ogletreedeakins.com -- and A. Craig Cleland, Esq. -- craig.cleland@ogletreedeakins.com -- at Ogletree Deakins report that the U.S. Supreme Court has ruled that a class-action lawsuit filed by a worker under the Fair Labor Standards Act (FLSA) was properly dismissed because the worker's suit was moot when she failed to accept an offer of judgment from her employer. The offer was a dollar amount that the law entitled her to no more and no less. According to the Court, "the worker had no personal interest in representing putative, unnamed claimants, nor any other continuing interest that would preserve her suit from mootness." Thus, the Court ruled, "the mere presence of collective-action allegations in the complaint cannot save the suit from mootness once the individual claim is satisfied." In other words, once the employer offered to pay her what it might legally owe her, she could no longer pursue claims on behalf of other, unnamed workers. (Genesis Healthcare, et al. v. Symczyk, No. 11-1059, Supreme Court, 2013) An offer not accepted In 2009, Laura filed a lawsuit on behalf of herself and "all other persons similarly situated," arguing that her employer violated the FLSA. Laura's employer made an offer of judgment under Federal Rule of Civil Procedure 68, including a payment for alleged unpaid wages, attorneys' fees, costs and expenses. It stipulated that if Laura did not accept the offer within 10 days, it would be deemed withdrawn. Laura never responded. Her employer filed a motion to dismiss, arguing that because it offered her complete relief on her individual damages claim, she no longer had a personal stake in the outcome of the suit, rendering her action moot. The trial judge dismissed the suit, concluding that no one else had joined the suit and that the Rule 68 offer of judgment fully satisfied Laura's individual claim. The 3rd Circuit Court of Appeals agreed that the Rule 68 offer mooted Laura's claim, but it reversed the lower court's finding that the collective action is not moot. The court explained that "strategic" use of Rule 68 offers before certification could "short-circuit the class action process." High Court: Class-action moot In the Supreme Court's decision, Justice Clarence Thomas noted that to invoke federal court jurisdiction, a plaintiff must show that he or she has a legally recognized interest or personal stake in the outcome. A corollary to this requirement is that an actual controversy must exist at all stages of review and not merely when the complaint is filed. Otherwise, the action must be dismissed as moot. The Court assumed -- and Laura conceded -- that Laura's individual claim was moot. Instead, the Court focused on whether her class-action claims were valid. Since no other claimants had opted in, Thomas concluded, Laura's suit "became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action." Thus, Laura's case was appropriately dismissed as moot. What it means for employers Several trends may emerge from this decision. First, for collective actions in their infancy, expect more plaintiffs to move for conditional collective-action certification to be filed shortly after complaints are filed. To avoid the court's ruling, more and more of these cases are likely to be pleaded as hybrid class and collective actions. Likewise, to avoid the Rule 68 bar, plaintiffs will likely begin filing more cases in state court under state law. Now, it would be ideal if the U.S. Supreme Court would consider the incompatibility of hybrid cases, which may be more attractive if substantially more wage-and-hour claims filed in federal court include an analogous state law claim. Perhaps the court was hinting at this eventuality by stating "Rule 23 actions are fundamentally different from collective actions under the FLSA." Several times the majority contrasted Rule 23 class actions (Rule 23 of the Federal Rules of Civil Procedure cover most class actions) and FLSA collective actions as "fundamentally different" creatures. For example, the Court noted that collective actions are about "joining co-plaintiffs" (and, by implication, not about representing absent class members), that conditional certification's "sole" significance is sending court-approved notice and that, whatever it means, conditional certification is "not tantamount to" class certification. GRAND FALLS-WINDSOR: May Face Suit Over Salmon Festival Crowding ---------------------------------------------------------------- CBC News reports that one concert-goer is so upset with last weekend's Salmon Festival in central Newfoundland that she is considering a class-action lawsuit. Debbie Dwight drove from Toronto to attend the festival in Grand Falls-Windsor, which featured the Eagles, the Tragically Hip and other acts. Ms. Dwight and her husband bought VIP tickets, which were supposed to have provided prominent seating. Instead, she said it was oversold and unsafe. "If there had been any incident there last night, there was no way anybody anyone was getting in, and no way that anyone was getting out," Ms. Dwight told CBC News. "The people need to know when they go to a festival like that, that their safety is primary, and it's not just about the bottom line," she said. Ms. Dwight's complaints about overcrowding in the VIP section were reiterated by others in social media, with some saying their experience was ruined as several thousand people were herded into the area. Many who attended were also upset about long lineups to buy water, and an apparent shortage of water supplies at some points. Ms. Dwight was astonished to hear announcers tell attendees at the festival to stay hydrated, even amid the lineups. "Obviously they didn't know there wasn't water to drink," Ms. Dwight wrote in a newly created Twitter account, @salmonfestfail. Ms. Dwight said she intended to "poll dissatisfied patrons" for a possible class-action suit against the promoters and the Town of Grand Falls-Windsor. Dehydration caused medical concerns A physician who worked in the medical tent said dehydration was an ongoing concern on July 13, as were problems caused by drinking alcohol in blistering heat. Temperatures soared above 30 C for much of the afternoon. Dr. Jared Butler said medical staff did what they could to help concertgoers stay hydrated. "We actually gave up our own supplies throughout the course of the day," he told CBC News on July 15. "All the staff [who] were on site there brought in their own water for themselves, but at the end of the day, I know all my water was given away to people who needed it. So, you do what you can to make sure [those] who need a drink of water can have one." HOFFMANN-LA ROCHE: Norton Rose Discusses Accutane Suit Ruling ------------------------------------------------------------- Dominic Dupoy, Esq. -- dominic.dupoy@nortonrosefulbright.com -- at Norton Rose Fulbright Canada LLP, reports that claiming to act on behalf of all Quebecers who have developed some form of inflammatory bowel disease as a result of taking the drug Accutane, Yann Lebrasseur filed a motion seeking certification of a class action. However, on June 27, 2013, the Quebec Superior Court refused to allow the action to proceed. In his motion, Mr. Lebrasseur alleged that he developed Crohn's disease as a result of taking Accutane. He accused the manufacturer, Hoffmann-La Roche Limited, of placing a dangerous product on the market and of failing to properly warn health professionals and consumers about the risks associated with Accutane. The product monograph prepared by the manufacturer and approved by Health Canada did mention numerous undesirable side effects of the drug, more particularly, the risk of inflammatory bowel disease. Justice Savard of the Quebec Superior Court dismissed the motion on the ground that the facts alleged did not seem to justify the conclusions sought and thus the action did not satisfy the test of Article 1003(b) C.C.P. Mr. Lebrasseur did not file any scientific articles showing or suggesting any causal link between the use of the drug and the onset of Crohn's disease. Moreover, the Court found that the undesirable side effects of Accutane had been properly disclosed by the manufacturer in its monograph. Justice Savard observed that Mr. Lebrasseur had simply alleged a causal relationship between taking Accutane and the onset of Crohn's disease without providing any supporting evidence. The Court also considered whether the claims of the members of the proposed group raised identical, similar or related questions of law or fact, within the meaning of Article 1003(a) C.C.P. Justice Savard pointed out that certain questions are more individual in nature. For example, she mentioned the dosage and the duration of treatment for each patient, the nature of each member's disease, differing risk factors among patients, the information communicated by the treating physicians about the risks associated with the drug and the validity of the patients' consent to take the drug. She also observed that the amount of moral and compensatory damages was an individual issue. On the other hand, questions relating to the marketing of the product or the manufacturer's failure to discharge its duty to warn are common issues. This decision confirms that the petitioner must have a personal claim in order to bring a class action and that, to be certified, a class action must be supported by solid evidence, not just vague, general allegations. IGATE CORP: Pomerantz Law Firm Files Class Action in California --------------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP has filed a class action lawsuit against iGATE Corporation and certain of its officers. The class action, filed in United States District Court, Northern District of California, and docketed under CV 13 2737 PSG LHK, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of iGATE between March 14, 2012 and May 21, 2013 both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased iGATE securities during the Class Period, you have until August 13, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. There is no out of pocket cost to you for your participation. iGATE offers a range of information technology ("IT") solutions to large and medium-sized organizations using an offshore/onsite model. The Company's services include client/server design and development, conversion/migration services, offshore outsourcing, enterprise resource planning package implementation and integration services, and software development. The Complaint alleges that throughout the Class Period, Defendants made materially false and misleading statements regarding the Company's business, operational and compliance policies. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (i) the Company's Chief Executive Officer and President "Murthy" was involved in an improper relationship with a subordinate employee in violation of iGATE's explicit policies to the contrary; and (ii) Murthy's improper conduct created a risk that he would be terminated from the Company, jeopardizing the Company's future success. On May 20, 2013, the Company disclosed that its Board of Directors terminated the employment of President and CEO Phaneesh Murthy, effective immediately, after an internal investigation revealed that Murthy had a relationship "with a subordinate employee and a claim of sexual harassment" in violation of iGATE's company policies and Murthy's employment contract. On this news, iGATE securities declined $1.58 per share or nearly 10%, to close at $14.82 per share on May 21, 2013. On May 22, 2013, the Company further revealed that the termination of the CEO was "'for cause,' and Mr. Murthy is not entitled to severance payment under the terms of his Employment Agreement with the Company." In response to his termination, Defendant Murthy acknowledged that he had a personal relationship with a Company employee, which was against company policy stating, "[i]t was a personal relationship. The company policy states that any two employees having a relationship have to inform the superiors." On this news, iGATE securities declined an additional $0.64 per share or more than 4%, to close at $14.18 per share on May 22, 2013. The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates its practice in the areas of corporate, securities, and antitrust class litigation. The law firm has offices in New York, Chicago, Florida, and San Diego. INDIANA: BMV Starts to Issue Credits to Overcharged Hoosiers ------------------------------------------------------------ Rafael Sanchez, writing for TheIndyChannel.com, reports that the Indiana Bureau of Motor Vehicles will credit Hoosiers for overcharges that were discovered in a recent class-action lawsuit. The BMV said on July 12 that credits will be applied to customers' totals during online or in-branch transactions, effective immediately. The organization announced lower fees in June after determining that charges for new and renewed driver's licenses had been miscalculated. The BMV cut the fees for standard operator's licenses by $3.50 on June 28. The new fees range from $14.50 for a four-year license to $17.50 for a six-year license. Every Hoosier who renewed or obtained a new license since March 2007 is due a credit, except drivers who were 75 and older when they renewed the license. The refunds are expected to impact tens of thousands of Hoosiers, but the total figure on the refunds has not been released. The BMV said each customer's credit will be capped at $9. "We felt this was the most effective way that we can make Hoosiers whole by immediately crediting their accounts," said BMV spokesman Josh Gillespie. Attorneys that filed the suit against the BMV said they think the credits aren't enough and Hoosiers aren't getting all the money they're owed. The attorneys told the Call 6 Investigators that they plan to continue the case. "This is the ultimate example of the fox watching the henhouse for the BMV to unilaterally announce that they've done the math, they've got it figured out and they can be trusted to handle the problem," said attorney Richard Schevitz, of the Cohen and Malad law firm. "The resolution of this case requires court oversight." The next court date is scheduled for July 25. According to Indianapolis Star's Kristine Guerra, a class-action lawsuit filed last March stated that the BMV has "systematically overcharged" Hoosiers for licenses since 2007, collecting as much as $30 million to $40 million more than allowed under state law. It alleged that the agency charged drivers under the age of 75 from $4 to $7 more than the state allows. In a response to the suit, filed by Irwin B. Levin of the Indianapolis law firm Cohen & Malad, the BMV later admitted that it "may have inadvertently overcharged" a significant number of drivers. Effective immediately, the BMV will return the overcharged fees in the form of a credit. This means, according to the agency, that the next time an Indiana driver conducts a transaction at a local BMV branch or through its website, the charge will reflect the driver's credit. "In order to make Hoosiers whole, we believe it is important to return the overcharge directly to those who have been impacted," R. Scott Waddell, commissioner of the BMV, said. "It is the right thing to do." JOHNSON & JOHNSON: NZ Woman Raises Awareness on Surgical Mesh Woes ------------------------------------------------------------------ Poppy Wortman, writing for Herald on Sunday, reports that one Kiwi woman's crusade against surgical mesh manufacturers has prompted others to join her online support group and share their stories. Carmel Berry, from Auckland, New Zealand, has joined a class action against five manufacturers in the United States, after suffering complications from polypropylene mesh implanted during surgery for a prolapsed uterus in 2004. "ACC declined my claims, so this is an opportunity for me to get compensation and hopefully make the manufacturers realize that they've been negligent with their product," she said. Last year, the Herald on Sunday revealed that hundreds of patients had suffered complications after having surgical mesh inserted. Made from pig collagen or polypropylene, the mesh is used in hernia, prolapsed pelvic organs and incontinence operations. Ms. Berry's lawyer, Rebecca Gilsenan, said the class action gave Australians and New Zealanders their first chance to have their voices heard. "Women are continuing to come forward, and we are in the first stage of sorting through whether they have eligible products or not," she said. "It goes to show there are a lot of women who have been implanted with this product suffering terrible injuries and not knowing how widespread the problem is." Filing claims will be completed by the end of this week. Ms. Gilsenan said a mistrial declared on July 10 in the United States as a result of a witness' testimony about marketing claims was an inconvenience but not a problem for the substance of the case. Ethicon -- a Johnson & Johnson company and one of the manufacturers of the mesh -- issued a statement saying: "Ethicon is committed to advancing the standard of care for women's health. For more than a decade, Ethicon have invested in the research, development and clinical study of products to treat a wide range of pelvic disorders." Ethicon spokeswoman Meshlin Khouri said patient safety was the first priority and the company encouraged all patients with questions about their procedures to contact their surgeon. Ms. Berry said her main aim was to raise awareness about the mesh and connect people. "For so long my doctor told me I was the only person to ever have this problem, that it's so rare, that I was one of those unfortunate, unlucky ones. Yet I now have a support group of 58 women in it that have made contact with me." Ms. Berry said hits on her meshdownunder website had gone "ballistic" and the Facebook page had received 8,000 more views. LAC-MEGANTIC TRAIN: Rochon Genova Files Class Action ---------------------------------------------------- Rochon Genova LLP disclosed that a class action proceeding (motion for authorization) was filed on July 15 relating to the Lac-Megantic train derailment and subsequent devastation suffered by this small community. Legal action is being brought to provide compensation to the many Lac-Megantic victims who have suffered from very serious losses. The action seeks recovery for damages sustained by those who have lost loved ones in the explosion and on behalf of persons injured. Claims for property loss and business losses are also included. The proposed representative plaintiffs are Guy Ouellet, whose partner, Diane Bizier died in the explosion. Yannick Gagne, is the second representative plaintiff and was the owner of Musi-Cafe. Three of M. Gagne's employees died in the fire which completely destroyed his establishment. Daniel Larochelle who has lived and practiced law in Lac-Megantic for over 15 years knows many of the victims personally. He stated: "The suffering endured by this community and the suffering that is still ongoing has been truly incomprehensible". He added: "I want this legal action to bring some hope to my community as we start to rebuild". Me Larochelle has assembled a team of class action lawyers to help the community navigate through the legal challenges ahead. Those firms include: Consumer law Group in Montreal, Rochon Genova LLP of Toronto and Lieff Cabraser Heimann and Bernstein LLP of New York and San Francisco. These firms have extensive experience pursuing large tort actions and in seeking compensation for victims following disasters including the BP Gulf Oil Spill litigation and in Exxon Valdez. LAC-MEGANTIC TRAIN: Siskinds Mulls Class Action ----------------------------------------------- CTV Montreal reports that the Lac-Megantic train disaster is certain to yield a class-action lawsuit worth, possibly, hundreds of millions of dollars and involve a number of defendants. One law firm -- Siskinds LLP -- is weighing up whether to be the first to launch a massive class action suit, which is certain to come in the wake of a disaster that has seen 28 people lose their lives with the toll expected to rise to 50. While Maine, Montreal & Atlantic Railway Inc. is certain to be included in any lawsuit as the railway company carrying the heavy cargo of crude oil, its lack of apparent assets could mean that several other parties be included in any suit. Any lawsuit could include the following defendants: -- Maine, Montreal & Atlantic Railway Inc.; -- The Canadian government. If the federal government failed in terms of regulations and oversight; -- Irving Oil. Irving owned the Western Bakken Crude oil from North Dakota that would ultimately cause heavy explosions that decimated the Eastern Townships town. Irving could be included if it's proven the company did not arrange for proper transport of its hazardous product; -- The community of Nantes. The neighboring town, 13 kilometers west of Lac-Megantic, may be included if the investigation reveals the volunteer fire department did something to trigger the release of the train. "Given the scores of people killed and the infrastructure destroyed, the businesses that undoubtedly have lost income because of this event, one would imagine the damages ultimately will be vastly in excess of a hundred million dollars and quite possibly a multiple of that," said Dimitri Lascaris -- dimitri.lascaris@siskinds.com -- of Siskinds, which is a law firm based in London, Ontario, but with an affiliate in Quebec. Siskinds is seriously weighing whether to launch a massive class action suit on behalf of the many victims. If they do not, another law firm surely will. In Quebec, the first firm to file a class action suit is generally given the entire case provided a judge feels the firm can handle it. LINN ENERGY: Kantrowitz Retained to File Securities Class Action ---------------------------------------------------------------- The law firm of Kantrowitz, Goldhamer & Graifman, P.C., on July 12 disclosed that it was retained to file a class action lawsuit on behalf of purchasers of Linn Energy, LLC common stock concerning possible violations of federal securities laws. Linn is an independent oil and natural gas company that engages in the acquisition and development of oil and natural gas properties. Through a series of articles, Barron's described the Company as "the country's most overpriced large energy producer," for using non Generally Accepted Accounting Principles ("GAAP") accounting to mask considerable weakness in its distributable cash flows and calling into question the sustainability of its dividend. Further, Barron's questioned the Company's accounting for its derivative contracts by, for example, excluding the cost of its puts from its cash flow, while including the gains. Then, on July 1, 2013, Linn disclosed that the Securities and Exchange Commission commenced an informal investigation in connection with the Company's hedging strategies, use of non-GAAP financial measures, and that the Commission was looking into its pending acquisition of Berry Petroleum Company. Upon this news, shares of Linn stock fell to their lowest price in three years by Friday July 5, 2013, from a close of $33.29 per share on July 1, 2013, to a low of $21.23 early Friday, on heavy trading volume. If you own common shares of Linn and would like to discuss this action, or if you have any questions concerning your legal rights or interests, please contact: Gary S. Graifman, Esq., at Kantrowitz, Goldhamer & Graifman, P.C., toll-free at 1-800-660- 7843 or via email at ggraifman@kgglaw.com or by writing to Kantrowitz, Goldhamer & Graifman, 747 Chestnut Ridge Road, Chestnut Ridge, New York 10977. The Kantrowitz, Goldhamer & Graifman, P.C. firm has significant experience successfully prosecuting complex securities fraud class actions on behalf of defrauded investors. LOUISIANA-PACIFIC: 6th Cir. Partially Revives Siding Class Action ----------------------------------------------------------------- Alex Lawson, writing for Law360, reports that the Sixth Circuit on July 12 partially revived a putative class action alleging defects in Louisiana-Pacific Corp.'s Trimboard house siding, ruling that the product's 10-year warranty trumps Ohio's four-year statute of limitations for bringing product liability claims. A three-judge panel unanimously ruled that because the Trimboard's guarantee contained an explicit promise of normal performance for 10 years after it was installed, plaintiff Jason Holbrook can sufficiently claim that Louisiana-Pacific breached its express warranty. "Because Holbrook filed suit within 10 years of the Trimboard's installation on his home and less than two years after discovering the defective Trimboard, his claim for breach of that express warranty is not barred by the statute of limitations," the opinion said. An Ohio federal court had dismissed Holbrook's claims, saying that he had not shown that Louisiana-Pacific had made any express warranty to him because he was the third party in a contract between Louisiana-Pacific and a private contractor. On appeal, the panel roundly rejected this argument, finding that because Holbrook was the "ultimate consumer" of the product, he did not need to show "privity of contract or third-party beneficiary status to establish a breach-of-warranty claim." Mr. Holbrook alleged that he installed the Trimboard siding on his house in 2003, and first noticed that it was deteriorating in July 2010. He filed his putative class action in July 2012. The first line of Trimboard's warranty protects it against delamination, splitting, cracking and chipping for a period of 10 years from the date of installation. While reversing the lower court on the issue of express warranty, the panel upheld the lower court's dismissal of implied warranty and advertising-based warranty claims, as neither of those contained an explicit guarantee that could push aside the statue of limitations. The judges also ruled that the district court was correct to dismiss Mr. Holbrook's claims under the Ohio Products Liability Act and the Ohio Deceptive Trade Practices Act. The panel said that because Mr. Holbrook's complaint alleged only economic damages, he did not assert a plausible claim under the OPLA, which only provides relief for physical injury or damage to property other than the product in question. Holbrook attempted to argue that the defectiveness of the Trimboard might cause physical damage to his home, but his complaint did not allege that the home had suffered any actual damage. As for the ODTPA, the judges deferred to precedent from the Ohio Court of Appeals that holds that consumers do not have standing to raise claims under that law because it is "substantially similar" to the federal Lanham Act, which also prevents consumers from bringing action. "LP appreciates this thoughtful ruling from the Court -- in fact, prior to the filing of the lawsuit, Louisiana-Pacific made an offer through its warranty program consistent with the terms of the Limited Warranty endorsed by the Court, and it now looks forward to the opportunity to address the merits of the remaining claim after remand," Kip T. Bollin, an attorney with Thompson Hine LLP who represented Louisiana-Pacific. Louisiana-Pacific is also defending Trimboard against similar class action claims in North Carolina federal court. Counsel for Mr. Holbrook declined to comment on July 12. Judges Arthur L. Alarcon, John M. Rogers and Helene N. White sat on the panel for the Sixth Circuit. Mr. Holbrook is represented by Scott Moriarity -- samoriarity@locklaw.com -- of Lockridge Grindal Nauen PLLP, Charles J. Laduca -- charlesl@cuneolaw.com -- and Victoria O. Romanenko -- vicky@cuneolaw.com -- of Cueno Gilbert & LaDuca LLP, Jack Landskroner -- jack@lgmlegal.com -- and Drew T. Legando -- drew@lgmlegal.com -- of Landskroner Grieco Madden and Charles E. Schaffer -- cschaffer@lfsblaw.com -- of Levin Fishbein Sedran & Berman. Louisiana-Pacific is represented by John Parker Sweeney, James E. Weatherholtz and T. Sky Woodward of Womble Carlyle Sandridge & Rice LLP and Kip T. Bollin and Conor A. McLaughlin -- Conor.McLaughlin@thompsonhine.com -- of Thompson Hine LLP. The case is Holbrook et al. v. Louisiana-Pacific Corp., case number 12-4166, in the U.S. Court of Appeals for the Sixth Circuit. LUCASFILM: Settles Class Action Over Anti-Poaching Conspiracy ------------------------------------------------------------- Howard Mintz, writing for San Jose Mercury News, reports that Lucasfilm and Pixar have settled a class-action lawsuit alleging they were part of a Silicon Valley conspiracy to not poach workers from rival companies, according to a federal judge's order filed on July 14. In a brief order, U.S. District Judge Lucy Koh indicated she has received a letter from lawyers in the case disclosing the two companies have settled their part of the hotly contested case, leaving five companies in the litigation. The order did not disclose the terms of the settlement. There was no indication in the order that the other companies defending the anti-poaching claims have likewise settled. The lawsuit alleges that by agreeing not to poach from rivals' workforces, the companies doused competition, costing employees a chance to jump to better, higher-paying jobs in the valley's competitive job market. The remaining companies facing the anti-poaching allegations are Apple, Intel, Intuit, Google Advertisement and Adobe. The companies are accused in the lawsuit of cutting deals with each other to not hire away their coveted employees, particularly in the engineering ranks. In previous orders, Judge Koh has indicated that lawyers for an estimated 100,000 employees impacted by the case have presented strong evidence that top executives, including late Apple CEO Steve Jobs and Google CEO Eric Schmidt, had side assurances to steer clear of raiding rival workforces. The companies have repeatedly denied the allegations. The companies did settle a similar case with the U.S. Justice Department several years ago. The federal government has a separate case pending against eBay involving the identical anti- poaching legal claims. The case before Judge Koh is expected to go to trial next year if the remaining five companies do not settle. MPG OFFICE: Levi & Korsinksy Files Class Action in Maryland ----------------------------------------------------------- Levi & Korsinsky LLP on July 12 disclosed that it has filed a class action lawsuit in The Circuit Court of Baltimore City, Maryland on behalf of holders of MPG Office Trust, Inc. preferred stock. The complaint challenges the proposed merger between MPG and affiliates of Brookfield Office Properties Inc. and a tender offer proposed by Brookfield for MPG preferred shares. Pursuant to the contract governing MPG preferred stock, said shareholders are currently owed approximately $8.58 per share in accrued and unpaid dividends. Indeed, MPG has not paid dividends to its preferred shareholders since 2008. The April 25, 2013 tender offer by Brookfield, however, offers no compensation to preferred shareholders for their accrued and unpaid dividends. The filed complaint alleges that the proposed tender offer and merger violate the terms of the contract governing the Preferred stock, since the contract states that preferred shares would never be converted without shareholder consent. The complaint further alleges that the terms of the tender offer are wrongfully coercive and unlawful, since preferred shareholders would be forced to choose between tendering their shares and foregoing the accrued dividends owed to them, or converting their shares pursuant to the terms of the merger. The Court has 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 a decision. Plaintiffs are represented by Donald J. Enright of Levi & Korsinsky LLP. To obtain additional information, contact Mr. Enright or Joseph E. Levi, Esq. either via email at jlevi@zlk.com or by telephone at (877) 363-5972, or visit http://zlk.9nl.com/mpg-officetrust/ Levi & Korsinsky is a national firm with offices in New York and Washington D.C. The firm has extensive expertise in prosecuting securities litigation involving financial fraud, representing investors throughout the nation in securities and shareholder lawsuits. CONTACT: Levi & Korsinsky, LLP Joseph Levi, Esq. Eduard Korsinsky, Esq. Tel: 212-363-7500 Toll Free: 877-363-5972 Fax: 212-363-7171 Web site: http://www.zlk.com NAM TAI: Pomerantz Grossman Files Class Action in New York ---------------------------------------------------------- Pomerantz Grossman Hufford Dahlstrom & Gross LLP has filed a class action lawsuit against Nam Tai Electronics, Inc. and certain of its officers. The class action, filed in United States District Court, Southern District of New York, and docketed under 13 CV 3371, is on behalf of a class consisting of all persons or entities who purchased or otherwise acquired securities of Nam Tai between August 6, 2012 and April 26, 2013, both dates inclusive. This class action seeks to recover damages against the Company and certain of its officers and directors as a result of alleged violations of the federal securities laws pursuant to Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5 promulgated thereunder. If you are a shareholder who purchased Nam Tai securities during the Class Period, you have until July 16, 2013 to ask the Court to appoint you as Lead Plaintiff for the class. A copy of the Complaint can be obtained at http://www.pomerantzlaw.com To discuss this action, contact Robert S. Willoughby at rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll free, x237. Those who inquire by e-mail are encouraged to include their mailing address, telephone number, and number of shares purchased. There is no out of pocket cost to you for your participation. Nam Tai is an electronics design and manufacturing services provider to original equipment manufacturers ("OEMs"). The Company manufactures cell phones, palm-sized PCs, personal digital assistants, electronic dictionaries, calculators, digital camera accessories, components including liquid crystal display modules ("LCMs") and panels, radio frequency modules, and flexible printed circuit subassemblies. The Complaint alleges that throughout the Class Period, Defendants made false and/or misleading statements, as well as failed to disclose material adverse facts about the Company's business, operations, and prospects. Specifically, Defendants made false and/or misleading statements and/or failed to disclose that: (1) intense competition had forced the Company to lower its unit sales prices, thereby threatening the Company's future profitability; (2) anticipated cancellation and fluctuation of orders by its key customers would cause it to halt capital investment into technology platforms; (3) Due to declining margins and volatility, the Company would have to halt its best quality LCM production operations services in both its Shenzhen and Wuxi manufacturing facilities in order to minimize further losses and preserve cash; and (4) as a result of the foregoing, the Company's statements were materially false and misleading at all relevant times. On April 29, 2013, the Company disclosed that customer orders for its liquid crystal display modules were much lower than originally anticipated. The Company noted that it relies on a very small number of customers forcing it to lower its prices to meet customers' needs. Furthermore, the Company disclosed that it was considering halting its best quality LCM production operations service in both its Shenzhen and Wuxi manufacturing facilities by the end of June 2013 in order to minimize further losses and preserve cash. On this news, the Company's shares declined $3.58 per share, or over 31.6%, to close at $7.75 per share on April 29, 2013. The Pomerantz Firm concentrates its practice in the areas of corporate, securities, and antitrust class litigation. The firm has offices in New York, Chicago, Florida, and San Diego. NATIONAL FINANCIAL: Signs MOU to Settle Merger-Related Suit ----------------------------------------------------------- National Financial Partners Corp. entered into a memorandum of understanding to settle a merger-related class action lawsuit, according to the Company's June 11, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission. On May 21, 2013, a putative stockholder class action lawsuit was filed against National Financial Partners Corp. (the "Company") and the members of the Company's Board of Directors in the Supreme Court of the State of New York, captioned Gotham Investors, v. Jessica Bibliowicz, et al., Index No. 651831/2013 (the "State Action"). The complaint alleges that the members of the Company's Board of Directors violated their fiduciary duties in connection with (i) the Company's entry into the Agreement and Plan of Merger, dated as of April 14, 2103 (the "Merger Agreement"), among the Company, Patriot Parent Corp. ("Parent") and Patriot Merger Corp., a direct wholly owned subsidiary of Parent ("Merger Sub"), providing for the merger of Merger Sub with and into the Company (the "Merger") and (ii) disclosures provided in the definitive proxy statement filed with the Securities and Exchange Commission ("SEC") by the Company on May 17, 2013 (the "Proxy Statement"), in connection with the special meeting of the Company's shareholders held on June 19, 2013. Hearing on the plaintiff's motion to preliminarily enjoin the June 19, 2013 special meeting was scheduled on June 17, 2013. On June 7, 2013, a second putative stockholder class action lawsuit was filed against the Company and the Board of Directors in the United States District Court for the Southern District of New York, captioned Branch v. National Financial Partners Corp., No. 13 Civ. 3925 (SAS) (the "Federal Action"). The Federal Action alleges that the Proxy Statement fails to include material information in violation of Sections 14(a) and 20(a) of the Securities Exchange Act of 1934, as amended, and that the Company's Board of Directors violated their fiduciary duties in connection with the Company's entry into the Merger Agreement and the Company's filing of the Proxy Statement, and seeks both injunctive relief and damages. On June 11, 2013, counsel for the plaintiff in the Federal Action notified counsel for the Company that the plaintiff no longer intends to pursue his case and that he will be dismissing the Federal Action. On June 10, 2013, solely to avoid the burden, expense, and disruption resulting from litigation, and without admitting any liability or wrongdoing, the Company and the other named defendants executed a memorandum of understanding ("MOU") with the plaintiff in the State Action regarding an agreement in principle that was reached to settle that case. The MOU provides, among other things, that the parties will seek to enter into a stipulation of settlement that will provide for the release of all claims concerning the Company's entry into the Merger Agreement, the sale process leading up to the Company's entry into the Merger Agreement, and the disclosures in the Proxy Statement, whether or not those claims were asserted in the State Action and whether or not those claims could have been asserted in the State Action. The MOU also provides that the stipulation of settlement will enjoin all members of the putative class from seeking to prosecute actions challenging the Merger Agreement and the Proxy Statement (or other disclosures concerning the Proxy Statement). The MOU further provides that the stipulation of settlement will provide for the dismissal with prejudice of the State Action. The subject claims will not be released, and the State Action will not be dismissed, unless and until the Merger is consummated and the stipulation of settlement is approved by the court in the State Action. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the court will approve such settlement even if the parties were to enter into such stipulation. Additionally, as part of the MOU, the Company has agreed to make certain additional disclosures related to the proposed transactions described in the Proxy Statement. Founded in 1998 and headquartered in New York, National Financial Partners Corp. -- http://www.nfp.com/-- and its benefits, insurance and wealth management businesses provide a full range of advisory and brokerage services to the Company's clients. NFP serves corporate and high net worth individual clients throughout the United States of America and in Canada, with a focus on the middle market and entrepreneurs. PILOT FLYING J: Prelim. Class Action Settlement Gets Court OK ------------------------------------------------------------- Cameron McWhirter, writing for The Wall Street Journal, reports that a federal judge approved a preliminary class-action settlement on July 16 between Pilot Flying J, the largest truck- stop chain in North America, and some of its trucking customers who alleged the company defrauded them through a diesel-rebate program. The settlement, worked out by Pilot and plaintiffs in eight of at least 22 lawsuits pending against it, requires the company to have auditors examine its trucking accounts and pay any money owed, plus 6% interest. It also calls for Pilot to assume all legal and auditing costs. The settlement requires Pilot to have auditors examine its accounts. Judge James Moody approved the deal in the U.S. District Court in Little Rock, Ark., where National Trucking Financial Reclamation Services LLC, one of the plaintiffs, filed suit against Pilot in April. Under the terms, other trucking firms that believe they were shorted under the rebate plan can apply to become part of the settlement or pursue their own legal action. Though the settlement heads off further litigation against Pilot in the cases it covers, the plaintiffs can review and challenge any audits or payments. The settlement allows lawyers for Pilot Chief Executive Jimmy Haslam III and other executives to turn their attention to a federal criminal probe into allegations that some members of Pilot's sales staff promised volume discounts to some of its trucking customers that would be paid in the form of rebates, and then shorted them on what was owed. Five of the company's sales employees have pleaded guilty in connection with the case and have agreed to cooperate with federal prosecutors. Mr. Haslam has said repeatedly that he had no knowledge of the alleged fraud scheme and has declined to comment on the whether any of the company's employees committed crimes. However, he told The Wall Street Journal in May that some employees were guilty "of violating how Pilot Flying J team members are supposed to act." "We're glad that Mr. Haslam and his company stepped up and did the right thing," said Michael Roberts, an attorney for National Trucking Financial Reclamation. The settlement agreement, worked out over a period of months, doesn't specify an amount to be paid by the company, and any payments are expected to vary by customer. Since a separate federal investigation into Pilot became public in April, the company has conducted its own internal audit of accounts and has written checks to companies that it believes were shorted on rebates. Those companies, even if they haven't sued Pilot, will be getting extra interest payments, said Pilot spokesman Tom Ingram. Mr. Ingram declined to provide specifics on how much money has been paid out so far or how many companies may have been shorted. But he said that "the numbers, while significant, represent a relatively small percentage of the number of total customers and total [diesel] revenues involved." Pilot officials have said they have about 5,000 trucking-company customers. "This is an unfortunate time for our customers and our company," Mr. Haslam said in a statement on July 16. "But we remain committed to making things 100% right with our customers, to put systems in place to help ensure this does not happen again, and to re-earn our customers trust." The alleged fraud, which is also the subject of the criminal probe, dates back to 2008 and in some cases earlier, according to an affidavit filed by the Federal Bureau of Investigation in the U.S. District Court in Knoxville, Tenn., where Pilot is based. Though no charges have been filed from that investigation, FBI and Internal Revenue Service agents executed search warrants April 15 at Pilot headquarters, as well as at the homes of company salespeople in other parts of the country. Agents seized computers, reports and other material. Pilot said on July 15 that six employees have been fired or resigned as a result of the alleged fraud scheme, and another three have been placed on administrative leave. PINELLAS COUNTY, FL: Sheriff Summoned in Lunch Break Suit Trial --------------------------------------------------------------- Curtis Krueger and Laura C. Morel, writing for Tampa Bay Times, report that Pinellas County's sheriff and his two predecessors will be summoned to court this week for a trial that could cost the county millions of dollars. It centers on an unlikely issue: lunch breaks. Attorney Wil Florin says the class action lawsuit, which has worked its way through the court system since 2006, is about much more. The lawsuit contends that roughly 1,000 deputies who have worked at the Pinellas County Jail since 2004 have been shortchanged because they get paid for eight hours per shift, but work 8.5 hours. "It's going to be about life inside that jail and how the sheriff can't continue to take the position that these guys are not working the entire time they're in there," Mr. Florin said. "It's an environment unlike any other." The lawsuit was filed in 2006 by a retired detention deputy, Douglas J. Morgan. He said deputies were required to show up for work half an hour before their shifts for a mandatory briefing. He said he and other deputies weren't being paid for that half hour. The Sheriff's Office has said it does pay deputies for the briefing, but not for their half-hour lunch breaks, according to court records. Most people probably don't get paid for lunch breaks. But Ms. Florin maintains that at the jail, lunch breaks are breaks in name only. Even on break, he said, deputies often have to listen to radios, keep an eye on inmates and be prepared to jump back into the job at any moment. "There isn't such a thing as a break anytime when you're on the inside," Ms. Florin said. "If you go on break, you're not really on break." Often, he said, "their break consists of somebody bringing their food to their post." Sheriff Bob Gualtieri declined to speak about the pending lawsuit. The attorney handling the case did not return calls. The trial, which was scheduled to start on July 17, is expected to last all week and part of the next. It seeks compensation for deputies over a nine-year period that covers all or part of the administrations of Sheriff Gualtieri, and former sheriffs Jim Coats and Everett Rice. If the Sheriff's Office wins the case, Pinellas County won't have to make a payout. But if it loses, the county could potentially have to pay millions in lost wages, interest and even adjustments to retirements. Sheriff's deputies currently earn from $41,284 to $67,143 per year, a spokeswoman said. About 750 deputies work at the jail. The case is a class action lawsuit, and covers all the jail deputies who were affected by the pay policy during the nine-year period. It doesn't cover other employees or supervisors, unless they used to be deputies. Pinellas-Pasco Circuit Judge John A. Schaefer initially ruled that for legal reasons, this case did not qualify as a class action suit. However the 2nd District Court of Appeal reversed that decision, clearing the way for trial. PINNACLE ENTERTAINMENT: Defends Consolidated Merger-Related Suit ---------------------------------------------------------------- Pinnacle Entertainment, Inc., is defending itself against a consolidated merger-related class action lawsuit, according to the Company's May 31, 2013, Form 10-K/A filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. In December 2012, the Company entered into a definitive agreement to acquire all of the outstanding common shares of Ameristar Casinos Inc. ("Ameristar") in an all cash transaction valued at $26.50 per share representing total consideration of $2.8 billion, including assumed debt. Ameristar operates these casinos: Ameristar Casino Resort Spa St. Charles (serving the St. Louis, Missouri metropolitan area); Ameristar Casino Hotel Kansas City (serving the Kansas City metropolitan area); Ameristar Casino Hotel Council Bluffs (serving the Omaha, Nebraska metropolitan area and southwestern Iowa); Ameristar Casino Resort Spa Black Hawk (serving the Denver, Colorado metropolitan area); Ameristar Casino Hotel Vicksburg (serving Jackson, Mississippi and Monroe, Louisiana); Ameristar Casino Hotel East Chicago (serving the Chicagoland area); and Cactus Petes Resort Casino and The Horseshu Hotel and Casino in Jackpot, Nevada (serving Idaho and the Pacific Northwest). The transaction is expected to close by the end of the third quarter of 2013, subject to closing conditions and regulatory approvals. On December 24, 2012, a putative shareholder class action lawsuit related to the Company's proposed acquisition of Ameristar was filed in Nevada District Court for Clark County, captioned Joseph Grob v. Ameristar Casinos, Inc., et al. (the "Grob action"). The complaint names Ameristar and members of Ameristar's Board of Directors (the "Ameristar Defendants"); and Pinnacle Entertainment, Inc., PNK Holdings, Inc., and PNK Development 32, Inc. as defendants (the "Pinnacle Defendants"). The complaint generally alleges that the Board of Directors of Ameristar, aided and abetted by Ameristar and the Pinnacle Defendants, breached their fiduciary duties owed to Ameristar's shareholders in connection with Pinnacle's proposed acquisition of Ameristar. The action includes claims for, among other things, an injunction halting the proposed acquisition of Ameristar by Pinnacle, and an award of costs and expenses to the putative plaintiff shareholder, including attorneys' fees. Thereafter, other plaintiffs filed additional complaints in the same court making essentially the same allegations and seeking similar relief to the Grob action. On January 15, 2013, the court issued an order consolidating the actions, and any subsequently filed actions, into a single, consolidated action. The action is still in the initial stages and there has been no discovery. The Company believes that the allegations directed against it lack merit and intends to defend itself vigorously. Pinnacle Entertainment, Inc. -- http://www.pnkinc.com/-- is a Delaware corporation headquartered in Las Vegas, Nevada. Pinnacle is an owner, operator and developer of casinos and related hospitality and entertainment facilities. PROGRESSIVE NORTHERN: Judge Rejects Driver Coverage Class Action ---------------------------------------------------------------- Matt Fair, writing for Law360, reports that a Pennsylvania federal judge axed a putative class action on July 10 accusing Progressive Northern Insurance Co. of failing to let customers waive uninsured motorist coverage for vehicles added to existing policies, ruling state law only required a waiver for newly purchased policies. U.S. District Judge Jan DuBois said that recent Pennsylvania Supreme Court precedent held that so-called after-acquired-vehicle clauses included in Progressive's auto insurance policies automatically extended coverage terms and released the insurer from having to ask customers if they wanted to waive so-called stacked uninsured and underinsured motorist benefits which would increase coverage limits whenever a new vehicle was added to a preexisting policy. "The Pennsylvania Supreme Court was clear in its ruling that an insurer need not obtain a new stacking waiver when the insured adds a new vehicle to an existing policy under a continuously operating after-acquired-vehicle clause," Judge DuBois wrote. "As a result, [the plaintiff] is not entitled to stacked UM benefits, and has not stated a claim for which relief can be granted. Accordingly, Progressive's motion is granted and [the] complaint is dismissed." Judge DuBois said that the state Supreme Court's 2007 opinion in Sackett v. Nationwide Mutual Insurance Co., known as Sackett II, held that the terms of a pre-existing policy -- including a waiver of uninsured and underinsured motorist coverage -- automatically extended to any new vehicles added to the policy. The justices based their decision, which clarified an earlier opinion in the case, in large part on an amicus brief submitted by the commissioner of Pennsylvania's Insurance Department who explained that the state did not treat the addition of a new vehicle as a new purchase of coverage and thus did not require insurers to execute new stacking waivers. Alfred Seiple, whose suit was removed to federal court in April after it was originally filed in the Philadelphia County Court of Common Pleas, alleged that Progressive had violated the Pennsylvania Motor Vehicle Financial Responsibility Law when it only agreed to provide him with up to $100,000 for damages he suffered after a May 2012 motorcycle accident. He claimed that he would've been eligible to receive up to $300,000 if he'd elected to extend uninsured motorist coverage to all three of the motorcycles included on his policy. However, Progressive said in its motion to dismiss that Mr. Seiple's decision to waive stacked insurance when he initially purchased the policy in 2009 meant that the other motorcycles were not eligible for coverage. James Haggerty, an attorney with Haggerty Goldberg Schleifer & Kupersmith PC representing Seiple, told Law360 on July 12 that he intended to appeal the decision to the Third Circuit. On appeal, he suggested the Third Circuit could certify a question back to the Pennsylvania Supreme Court to clarify its decision in Sackett. "We're hopeful that the Third Circuit will correct the errors made by the trial judge," he said. Mr. Seiple is represented by James Haggerty of Haggerty Goldberg Schleifer & Kupersmith PC; and Vincent Margiotti of McMenamin & Margiotti LLC. Progressive is represented by G. Franklin McKnight IV -- fmcknight@nldhlaw.com -- of Nelson Levine DeLuca & Hamilton. The case is Alfred Seiple v. Progressive Northern Insurance Co., case number 2:13-cv-01826, in U.S. District Court for the Eastern District of Pennsylvania. SAMSUNG TELECOM: Accused of Selling Defective Galaxy S Phones ------------------------------------------------------------- Amira Anderson, individually and on behalf of all other similarly situated California residents v. Samsung Telecommunications America, LLC, a Delaware Limited Liability Company, Case No. 8:13- cv-01028-JVS-RNB (C.D. Cal., July 10, 2013) is brought on behalf of California residents, who purchased an alleged defective Samsung Galaxy S mobile phone. The Plaintiff alleges that the Defendant's Galaxy S mobile phones suffer from a software or hardware defect, which causes the phones to randomly freeze, shut down, and power-off while in standby mode, rendering the phones inoperable and unfit for their intended use and purpose. She asserts that she repeatedly attempted to have her defective phone repaired or replaced under Samsung's warranties prior to filing this action. Instead, she contends, Samsung and its authorized agents and resellers provided her and the Class members with ineffective and damaging "software updates" and phone resets and replacement Galaxy S phones suffering from the same defect. Ms. Anderson is a resident of San Diego County, California. On September 29, 2011, she purchased a Samsung Galaxy S Vibrant through TMobile, acting as Samsung's authorized agent and reseller. Soon after she purchased her Galaxy S phone, she experienced the defect alleged within all warranty periods. Samsung is a Limited Liability Company incorporated under Delaware law and headquartered in Richardson, Texas. Samsung designed, manufactured, distributed and sold consumer electronic products, including the defective Samsung Galaxy S mobile phones. The Plaintiff is represented by: Jeffrey R. Krinsk, Esq. Mark L. Knutson, Esq. William Richard Restis, Esq. FINKELSTEIN AND KRINSK LLP 501 West Broadway, Suite 1250 San Diego, CA 92101-3593 Telephone: (619) 238-1333 Facsimile: (619) 238-5425 E-mail: jrk@classactionlaw.com mlk@classactionlaw.com wrr@classactionlaw.com SMARTHEAT INC: Awaits Ruling on Bid to Dismiss Securities Suit -------------------------------------------------------------- SmartHeat Inc. is awaiting a court decision on its motion to dismiss a securities class action lawsuit pending in New York, according to the Company's June 11, 2013, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. On August 31, 2012, a putative class action lawsuit, Steven Leshinsky v. James Wang, et. al., which purported to allege federal securities law claims against the Company and certain of its former offers and directors, was filed in the United States District Court for the Southern District of New York. Thereafter, two plaintiffs filed competing motions to be appointed lead plaintiff in the proceeding. A lead plaintiff was appointed and an amended complaint was filed on January 28, 2013, by the Rosen Law Firm. The amended complaint included Oliver Bialowons, the Company's President, and Michael Wilhelm, the Company's former Chief Financial Officer, as defendants in the proceeding though they were not officers of the Company during the alleged class period. A second amended complaint was filed on April 8, 2013, under the caption Stream Sicav, Dharanendra Rai et al. v. James Jun Wang, Smartheat, Inc. et al., removing Messrs. Wilhelm and Bialowons as defendants. The second amended complaint alleges two counts against the Company, both for violations of the federal securities laws arising from alleged insider sales or management sales of securities and alleged false disclosures relating to those sales. On May 8, 2013, the Company filed a motion to dismiss the second amended complaint on the grounds that the plaintiffs did not, in fact, allege that a member of the Company's senior management team had sold their shares. In the event the motion to dismiss is not successful, the Company says it intends to vigorously defend this action, as the Company believes the allegations against it are without merit. Any adverse decision in this action, requiring the Company to pay substantial damages to the plaintiffs could result in a material adverse effect on its results of operations and could harm its reputation. The Company believes this lawsuit is frivolous and without merit and will contest it vigorously. Mr. Wilhelm's Resignation On February 23, 2013, Michael Wilhelm resigned from his position as the Company's Chief Financial Officer due to being "named personally in a groundless shareholder suit, where the alleged (unproven) actions in question are alleged to have taken place long before [his] involvement with the company." Mr. Wilhelm was added as a defendant to the class action lawsuit filed against the Company, its directors, and certain of its former officers, originally captioned Steven Leshinsky v. James Wang, et. al, now captioned Stream Sicav, Dharanedra Rai et al. v. James Jun Wang, Smartheat Inc. et al., in an amended complaint filed by the Rosen Law Firm on January 28, 2012. The Company disclosed that it had difficulty in retaining a suitable replacement for Mr. Wilhelm due to the class action lawsuit. In the interim, and so as to have a principal accounting officer that could sign the certifications under Sections 302(a) and 906 of the Sarbanes Oxley Act of 2002 necessary to complete and file this Annual Report on Form 10-K, the Company appointed Yangkai Wang as its Acting Chief Accountant on June 7, 2013. While Mr. Yingkai Wang has served as a financial manager to the Company's subsidiaries since 2007, he has limited relevant education and training in U.S. GAAP and related SEC rules and regulations. About SmartHeat Inc. Founded by James Jun Wang, a former executive at Honeywell China, SmartHeat Inc. -- http://www.smartheatinc.com/-- is a U.S. company with its primary operations in China. SmartHeat manufactures heat exchangers, custom plate heat exchanger units (PHE Units), heat meters and heat pumps. ULTA SALON: Continues to Defend Employment Suit in California ------------------------------------------------------------- On March 2, 2012, a putative employment class action lawsuit was filed against Ulta Salon, Cosmetics & Fragrance, Inc. and certain unnamed defendants in state court in Los Angeles County, California. On April 12, 2012, the Company removed the case to the United States District Court for the Central District of California. The plaintiff and members of the proposed class are alleged to be (or to have been) non-exempt hourly employees. The lawsuit alleges that Ulta violated various provisions of the California labor laws and failed to provide the plaintiff and members of the proposed class with full meal periods, paid rest breaks, certain wages, overtime compensation and premium pay. The lawsuit seeks to recover damages and penalties as a result of these alleged practices. The Company denies the plaintiff's allegations and is vigorously defending the matter. No further updates were reported in the Company's June 11, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 4, 2013. Ulta Salon, Cosmetics & Fragrance, Inc., provides one-stop shopping for prestige, mass and salon products and salon services in the United States. The Company was incorporated in Delaware and is headquartered in Bolingbrook, Illinois. UNITED STATES: Freddie Mac, Fannie Mae Shareholders File Suit ------------------------------------------------------------- Kessler Topaz Meltzer & Check, LLP disclosed that preferred shareholders of Freddie Mac and Fannie Mae on July 11 filed a class action lawsuit challenging the US Government's appropriation of their dividend, liquidation, and related distribution rights in August 2012. As part of the 2008 federal bail-out, mortgage giants Fannie Mae and Freddie Mac issued the US Department of Treasury $189 billion of senior preferred stock. These new securities entitled the Government to be paid dividends on their investment in Fannie and Freddie at a rate of 10% per year. The junior preferred shareholders received no dividends in the interim. In 2012, as the real estate market stabilized and began to improve, Fannie and Freddie began generating consistent and growing profits, enabling them to repay the government and resume dividend payments to junior preferred stockholders. Instead, the US Department of Treasury and the Federal Housing Finance Administration -- both arms of the U.S. Government -- unilaterally amended the Treasury's senior preferred stock agreements to grant the Government the right to receive all of Fannie and Freddie's profits and net worth as dividends (or as a liquidation preference). None of these dividend payments are being applied towards paying down the principal of the senior preferred stock; rather, the Government has structured the new contracts to effectuate a "cash sweep" of all of Fannie and Freddie's profits and keep these entitles in a perpetual state of distress. Plaintiffs allege that the Government's unilateral amendment of the senior preferred stock agreements constitutes a "taking" under the Fifth Amendment to the US Constitution requiring payment of just compensation. They seek to represent a class of Fannie and Freddie junior preferred shareholders who owned their preferred shares on August 17, 2012, and therefore suffered the complete loss of their dividend and liquidation rights. Plaintiffs are represented jointly by Hamish Hume of Boies Schiller & Flexner and Lee Rudy and Eric Zagar of Kessler Topaz Meltzer & Check. Preferred shareholders interested in participating in the lawsuit and protecting their right to receive a recovery are urged to contact plaintiffs' counsel below. About Boies Schiller Boies, Schiller & Flexner LLP, founded in 1997, has grown to over 250 lawyers practicing in offices strategically located throughout the United States. Over the past ten years BSF has tried more than 350 cases before juries and judges in federal and state courts throughout the United States and participated in more than 150 international arbitration proceedings throughout the world. The Firm regularly serves as lead counsel on complex, high profile global matters. Boies Schiller is currently litigating a class action complaint against the United States related to the appropriation of the economic and voting rights of AIG's shareholders. About Kessler Topaz Kessler Topaz is a 100-lawyer firm based in Radnor, PA and San Francisco, CA that specializes in class action litigation, primarily on behalf of pension fund investors. The firm has recovered billions of dollars for investors, including most recently as co-lead counsel in In re Bank of America Securities Litigation (SDNY 2012) ($2.425 billion class settlement), and as co-lead counsel in In re Southern Peru Copper (Del. Ch. 2011) ($2.1 billion trial verdict). The full case caption for the Fannie Mae/Freddie Mac class action is Cacciapelle v. United States of America, 13-cv-00385-MMS. Contact: Hamish Hume, Esq. BOIES, SCHILLER & FLEXNER LLP Telephone: (202) 237-2727 E-mail: hhume@bsfllp.com Eric Zagar, Esq. Darren Check, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP: Telephone: (610) 667-7706 E-mail: ezagar@ktmc.com dcheck@ktmc.com UROPLASTY INC: Glancy Binkow Files Class Action in Minnesota ------------------------------------------------------------ Glancy Binkow & Goldberg LLP, representing investors Uroplasty, Inc. on July 13 disclosed that it has filed a class action lawsuit in the United States District Court for the District of Minnesota on behalf of a class comprising all purchasers of Uroplasty securities between July 26, 2012 and June 13, 2013, inclusive. A COPY OF THE COMPLAINT IS AVAILABLE FROM THE COURT OR FROM GLANCY BINKOW & GOLDBERG LLP. PLEASE CONTACT US TOLL-FREE AT 888-773- 9224, OR AT 212-682-5340, OR BY EMAIL TO SHAREHOLDERS@GLANCYLAW.COM TO DISCUSS THIS MATTER OR IF YOU PURCHASED UROPLASTY SECURITIES PRIOR TO THE CLASS PERIOD. IF YOU INQUIRE BY EMAIL PLEASE INCLUDE YOUR MAILING ADDRESS, TELEPHONE NUMBER AND NUMBER OF SHARES PURCHASED. Uroplasty is a medical device company that engages in the development, manufacture and marketing of products for the treatment of voiding dysfunctions, including treatment of overactive bladder. The Complaint alleges that throughout the Class Period defendants issued false and/or misleading statements and failed to disclose material adverse facts about the Company's business, operations and prospects. Specifically, defendants misrepresented or failed to disclose that: (1) the Company lacked adequate internal and financial controls; and (2) as a result, the Company's statements were materially false and misleading at all relevant times. On June 14, 2013, the Company announced that it was delaying the filing of its annual report on Form 10-K for the year ended March 31, 2013, until the completion of a review of its internal control over financial reporting. According the Company, in connection with a review of employee expense reimbursements conducted at the direction of the Audit Committee of the Company's board of directors, the Company uncovered "issues related to the internal controls surrounding the employee expense reimbursement approval process," in addition to "issues in internal control related to the recognition of orders and the payment of sales commissions at the end of fiscal quarters." As a result of this news, shares of Uroplasty declined $0.26 per share, or 10.48%, to close on June 14, 2013, at $2.22 per share, on heavy trading volume. If you are a member of the Class described above you may move the Court no later than August 30, 2013 to serve as lead plaintiff; however, you must meet certain legal requirements. If you wish to learn more about this action or if you purchased Uroplasty securities prior to the Class Period or have any questions concerning this announcement or your rights or interests with respect to these matters, please contact: Michael Goldberg, Esq. Glancy Binkow & Goldberg LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Toll-Free at 888-773-9224 - or - Gregory Linkh, Esq. Glancy Binkow & Goldberg LLP 122 E. 42nd Street, Suite 2920 New York, NY 10168 Telephone: 212-682-5340 E-mail: shareholders@glancylaw.com Web site: http://www.glancylaw.com If you inquire by email please include your mailing address, telephone number and number of shares purchased. VODAFONE HUTCHISON: LCM Seeks "Ideal Plaintiffs" in Class Action ---------------------------------------------------------------- Adam Bender, writing for Computerworld, reports that the company funding a class action lawsuit against Vodafone Hutchison Australia has said it will issue the court case by the end of August. The LCM Litigation Fund is currently scouring its list of more than 10,000 unhappy former Vodafone customers who have joined the lawsuit for "ideal plantiffs" for the case, according to an update to the class action participants sighted by Computerworld Australia "Finding the right people to represent everyone is an important part of this legal claim and it can't start without them," wrote LCM managing director Patrick Coope. "We are presently speaking with a number of people who have indicated they are willing to take on this role. We expect to finish this part of the process in the next few weeks." "The lawyers will then need to finish preparing the necessary court documents," he wrote. "We will then need to speak to Vodafone to comply with the rules of the Federal Court of Australia." Law firm Piper Alderman initially announced plans in February to serve Vodafone with the class action. LCM stepped in after Piper Alderman failed to secure funding for the class action. Vodafone has been investing billions to upgrade its network. The company launched a 4G network last month and has just opened it to new customers. Vodafone didn't comment. VOTORANTIM CIMENTOS: Continues to Defend "Oliveira" Suit vs. Unit ----------------------------------------------------------------- In August 2007, Marcelo Soares de Oliveira filed a class action (acao popular) against Votorantim Cimentos S.A.'s subsidiary, Votorantim Cimentos Norte e Nordeste S.A. (VCNNE), the legal representative of Companhia de Mineracao do Tocantins - Mineratins, the State of Tocantins, State Governor of Tocantins and the President of the Permanent Commission for Tender Processes of the Treasury Secretariat of State of Tocantins, claiming that the tender process by means of which VCNNE won the rights to be the assignee of the mineral rights related to the DNPM Process No. 860.933/1982 then held by Companhia de Mineracao do Tocantins - Mineratins should be nullified due to failure in the tender procedures which shall cause damages to the State Treasury. It is also requested an injunction in order to immediately suspend the effects of the tender, which has not been decided by the court yet. In May 2008, VCNNE presented defense arguing that such lawsuit is related (conexo) to another lawsuit and, therefore, this new one should be judged together with the previously filed one and requesting the lawsuit to be dismissed. In April 2009, the State Prosecutor agreed that the lawsuits are related and should be judged together. The expectation of loss under this claim is considered possible and the Company has not recorded any provision in connection with this claim. No further updates were reported in the Company's May 31, 2013, Form F-1/A filing with the U.S. Securities and Exchange Commission. Votorantim Cimentos S.A. -- http://www.vcimentos.com.br/-- is a global vertically-integrated heavy building materials company, with operations in North and South America, Europe, Africa and Asia. The Company is headquartered in Sao Paulo, Brazil. VOTORANTIM CIMENTOS: Still Awaits Decision in "Mato Grosso" Suit ---------------------------------------------------------------- On December 11, 2000, the Public Prosecutor of Mato Grosso filed a civil class action against Votorantim Cimentos S.A. seeking the annulment of certain environmental licenses granted to the Company and the suspension of its operations in the Paraguai/Parana River. The court excluded the Company from the civil class action and the Public Prosecutor has appealed. In August 2007, a court, in a unanimous decision, agreed that IBAMA correctly granted the licenses to the Company. The Company is awaiting a final decision from a higher court. No further updates were reported in the Company's May 31, 2013, Form F-1/A filing with the U.S. Securities and Exchange Commission. Based on the advice of its external legal counsel, the Company believes the probability of loss under this claim is possible. The Company has not recorded any provision with respect to this claim. Votorantim Cimentos S.A. -- http://www.vcimentos.com.br/-- is a global vertically-integrated heavy building materials company, with operations in North and South America, Europe, Africa and Asia. The Company is headquartered in Sao Paulo, Brazil. VOTORANTIM CIMENTOS: Still Awaits Expert Report in Imbituba Suit ---------------------------------------------------------------- Votorantim Cimentos S.A. is still waiting for an expert report to be prepared and issued in the class action lawsuit alleging that thestorage and transportation of petcoke in the Port of Imbituba resulted in environmental damage, according to the Company's May 31, 2013, Form F-1/A filing with the U.S. Securities and Exchange Commission. In July 2011, the Associacao dos Moradores da Rua de Baixo, the Instituto Conexao Ambiental and the Associacao de Surf de Imbituba filed a class action against CRB Operacoes Portuarias S.A., or CRB, the Company's indirect subsidiary, Companhia Docas de Imbituba, the city of Imbituba and the Fundacao do Meio Ambiente, or FATMA, claiming that the storage and transportation of petcoke in the Port of Imbituba resulted in environmental damage and also adversely affected the health of residents of the area. The plaintiffs also claim that CRB breached a conduct agreement (termo de ajustamento de conduta) it entered into with the State Attorney's Office, pursuant to which it: (1) would adopt steps towards adequate storage of petcoke at the terminal of the Port of Imbituba; (2) would adequately store petcoke in the terminal until November 30, 2003; (3) would provide an environmental operating permit to FATMA by the end of 2003; (4) would delay restrictions on the use of the property of the city's fire department until the end of the concession of the Port of Imbituba, intermediate with the federal government the permanent transfer property ownership to the facilities of the city's fire department and stimulate the local business community by donating R$52,000 to the Fundo Municipal do Corpo de Bombeiros, or FMCB, by the end of 2003; (5) would donate R$100,000 to the FMCB for the acquisition of a paramedical vehicle to be used in the city by the end of 2003; and (6) the State Attorney would agree not to take any legal action against the agencies, entities or individuals that signed the conduct agreement in the event the conditions of the conduct agreement were fulfilled during the applicable period. In addition, an injunction was issued against CRB and other defendants that prohibited these companies from storing and transporting petcoke in the Port of Imbituba. CRB has provided evidence demonstrating the renovations and investments made and appealed the injunction that caused it to close its petcoke operations at the port and appealed a daily fine of U.S.$100,000 in the event that CRB did not close its petcoke operations. As a result of the appeal, the injunction was temporarily suspended. On December 12, 2011, the CRB and the plaintiffs reached a partial agreement before the District Court of Imbituba, pursuant to which CRB has undertaken to carry out six proposed improvements. Moreover, on January 5, 2012, CRB entered into an adjustment of conduct agreement (termo de ajustamento de conduta) with FATMA, pursuant to which FATMA agreed to reduce certain previously imposed penalties in light of the costs involved in implementing the improvements. In May 2012, the District Court of Imbituba appointed expert testimony to provide support for the alleged environmental damage arising from the storage of petcoke at the terminal of the Port of Imbituba. The District Court notified the parties to present their inquiries and the names of their technical assistants. The Company is currently waiting for the expert report to be prepared and issued by the court's expert. Based on the advice of its external legal counsel, CRB believes the probability of loss under this claim is probable. The Company has not recorded any provision with respect to this claim because this claim is related to an obligation to limit the emissions of solid particles with respect to its future operations. The amount in dispute is R$1,000. Votorantim Cimentos S.A. -- http://www.vcimentos.com.br/-- is a global vertically-integrated heavy building materials company, with operations in North and South America, Europe, Africa and Asia. The Company is headquartered in Sao Paulo, Brazil. VOTORANTIM CIMENTOS: Still Awaits for Fla. AG and DOJs' Next Move ----------------------------------------------------------------- Prestige Concrete Products, a subsidiary of Votorantim Cimentos S.A., was party to two consolidated civil class actions alleging antitrust violations by a number of companies having cement and ready-mix concrete operations in the state of Florida. The court dismissed certain of the claims and parties in motions to dismiss and subsequently refused to certify any classes. The cases were all settled and/or voluntarily dismissed in February and March 2012. Subsequent to the commencement of the civil class actions, the Florida Attorney General and the U.S. Department of Justice conducted investigations having, to the Company's knowledge, similar subject matter but a narrower scope than the civil class actions. The last communications with either agency occurred in May 2012 with no indication by either agency of any intention to conduct further investigation or to file any charges. No further updates were reported in the Company's May 31, 2013, Form F-1/A filing with the U.S. Securities and Exchange Commission. Votorantim Cimentos S.A. -- http://www.vcimentos.com.br/-- is a global vertically-integrated heavy building materials company, with operations in North and South America, Europe, Africa and Asia. The Company is headquartered in Sao Paulo, Brazil. VOTORANTIM CIMENTOS: Still Defends Suit Alleging Cartel Formation ----------------------------------------------------------------- Votorantim Cimentos S.A. continues to defend itself against a class action lawsuit alleging breach of Brazilian antitrust law as a result of alleged cartel formation, according to the Company's May 31, 2013, Form F-1/A filing with the U.S. Securities and Exchange Commission. The Office of the Public Prosecutor of Rio Grande do Norte filed a civil class action against Votorantim Cimentos S.A. (VCSA), together with eight other defendants, including several of Brazil's largest cement manufacturers alleging breach of Brazilian antitrust law as a result of alleged cartel formation, and seeking, among other things, that: (1) defendants pay an indemnity, on joint basis, in the amount of R$5,600 million in favor of the class action plaintiffs for moral and collective damages; (2) defendants pay 10.0% of the total amount paid for cement or concrete acquired by the consumers of the brands negotiated by the defendants, between the years 2002 and 2006, as compensation for damages to individual consumers; and (3) defendants suffer the following penalties under Articles 23, Item I and 24 of the Law No. 8.884/94: (i) in addition to the fine referred to in item (1), a fine ranging from 1.0% to 30.0% of the annual gross revenues relating to the fiscal year immediately prior to the year in which the administrative proceeding was initiated, which may never be in an amount less than the monetary advantage gained; and (ii) ineligibility, for a period of at least five years, to obtain financing from governmental financial institutions or to participate in competitive government bidding processes conducted by federal, state or municipal governmental entities or with governmental agencies. Because the total amount of the claims referred to in item (1) above amounts to R$5,600 million and the claims allege joint liability, the Company has estimated that, based on the Company's market share, its share of the liability would be approximately R$2,400 million. However, there can be no assurance that this apportionment would prevail and that the Company will not be held liable for a different portion, which may be larger, or for the entire amount of this claim. The Company's expectation of loss under this matter is considered possible, and the Company has not established any provision for this claim. Furthermore, there can be no assurance that the Company will not be required to pay other amounts as compensation for damages caused to consumers in accordance with item (2), and/or the fine referred to in item (3). The Company's expectation of loss under this matter is considered possible, and the Company has not established any provision for this claim. Votorantim Cimentos S.A. -- http://www.vcimentos.com.br/-- is a global vertically-integrated heavy building materials company, with operations in North and South America, Europe, Africa and Asia. The Company is headquartered in Sao Paulo, Brazil. VOTORANTIM CIMENTOS: Still Negotiates to Settle Serra do Mar Suit ----------------------------------------------------------------- The parties in the class action lawsuit alleging Votorantim Cimentos S.A. and other defendants' operations are causing serious environmental damage in the Serra do Mar region are still currently negotiating a settlement with the Public Prosecutor of the State of Sao Paulo, according to the Company's May 31, 2013, Form F-1/A filing with the U.S. Securities and Exchange Commission. The Office of the Public Prosecutor of the State of Sao Paulo has filed a civil class action against Votorantim Cimentos S.A. ("VCSA") and other companies alleging that their respective operations are causing serious environmental damage in the Serra do Mar region and consequently seeking indemnification to compensate such damage. The court has ordered expert testimony to estimate the environmental damages in the Serra do Mar region. However, this expert testimony has not yet been completed given that the appointed expert has declined to testify. This civil class action was last suspended in May 2012 for a term of 90 days. The suspension was renewed for another 90-day period commencing in August 2012. The parties are currently negotiating a settlement with the Public Prosecutor of the State of Sao Paulo. Based on the advice of its external legal counsel, the Company believes the probability of loss under this claim is probable, and the Company has recorded a provision of R$1.8 million in connection with this claim. Votorantim Cimentos S.A. -- http://www.vcimentos.com.br/-- is a global vertically-integrated heavy building materials company, with operations in North and South America, Europe, Africa and Asia. The Company is headquartered in Sao Paulo, Brazil. YELP INC: Business Owners Appeal Class Action Ruling ---------------------------------------------------- Christopher Zara, writing for International Business Times, reports that a group of business owners suing Yelp Inc. for extortion, filed an appeal in San Francisco's 9th Circuit Court of Appeals on July 11, hoping to reverse a judge's earlier decision that the crowd-sourced review giant is not liable for user reviews that negatively impact businesses. In 2011, U.S. District Judge Edward Chen ruled that, under the Communications Decency Act of 1996, the much-maligned company is not responsible for content written by its users. It's a position backed by free-speech advocates such as the Electronic Frontier Foundation (EFF), which has come out in support of Yelp in the case. Specifically, EFF says the website -- and other user- generated sites like it -- is protected under section 230 of the act, which states the following: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." According to EFF, the clause is a vital tool in maintaining freedom of expression on the Internet. "In other words, online intermediaries that host or republish speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others say and do," the group said on its website. Critics both in and out of the courtroom continue to go to great lengths to characterize Yelp as an unscrupulous bully, bent on wielding its influence to extort advertising revenue from small businesses on the receiving end of the countless negative rants by Yelp users. In their lawsuit, the merchants claim that Yelp offers to hide negative reviews and highlight positive ones in exchange for advertising purchases. Some merchants have also accused Yelp of zapping positive reviews as retribution for businesses that don't advertise. Yelp has long denied such claims and said in a blog post in May that "conspiracies" about its operations have been debunked by independent studies. The website also stands by its automated review filter, which it says weeds out trolls and fake reviews to create an unbiased picture of user consensus toward any particular business. "It's an algorithm," Vince Sollito, Yelp's vice president of corporate communications, told NBC Connecticut last year. "It's automatic and it takes into account all of the patterns of data and signals we know about reviewers to help us to determine which content is the most helpful and what we can show." Nevertheless, anti-Yelp sentiment is rampant on the Internet and social media. Sites like YelpFiction.com, Yelp-Sucks.com and YelpLawsuit.com offer Yelp critics both legal advice and a place to vent their frustrations. The "Tell Your Story" page on Yelp- Sucks.com features hundreds of comments from entrepreneurs who say Yelp has negatively affected their businesses. On Facebook, pages like Yelp Extortion and others feature similar stories. Last year, a Freedom of Information Act request filed with the FTC revealed nearly 700 complaints against Yelp over the last four years, with some business owners comparing the website to the Mafia. According to Entrepreneur magazine, which reported on the July 11 appeal, the case against Yelp is expected to be decided this week. * Class Actions v. Asbestos Companies Not Possible in Russia ------------------------------------------------------------ Andrew E. Kramer, writing for The New York Times, reports that the city of Asbest in Russia -- city of about 70,000 people on the eastern slopes of the Ural Mountains -- is a pleasant enough place to live except for one big drawback: when the wind picks up, clouds of carcinogenic dust blow through. Asbest means asbestos in Russian, and it is everywhere here. Residents describe layers of it collecting on living room floors. Before they take in the laundry from backyard lines, they first shake out the asbestos. "When I work in the garden, I notice asbestos dust on my raspberries," said Tamara A. Biserova, a retiree. So much dust blows against her windows, she said, that "before I leave in the morning, I have to sweep it out." The town is one center of Russia's asbestos industry, which is stubbornly resistant to shutting asbestos companies and phasing in substitutes for the cancer-causing fireproofing product. In the United States and most developed economies, asbestos is handled with extraordinary care. Until the 1970s, the fibrous, silicate mineral was used extensively in fireproofing and insulating buildings in America, among other uses, but growing evidence of respiratory ailments due to asbestos exposure led to limits. Laws proscribe its use and its disposal and workers who get near it wear ventilators and protective clothes. The European Union and Japan have also banned asbestos. (A town called Asbestos in Quebec, Canada, has stopped mining asbestos, though it hasn't changed its name.) But not here, where every weekday afternoon miners set explosions in a strip mine owned by the Russian mining company Uralasbest. The blasts send huge plumes of asbestos fiber and dust into the air. Asbest is one of the more extreme examples of the environmental costs of modern Russia's deep reliance on mining. "Every normal person is trying to get out of here," Boris Balobanov, a former factory employee, now a taxi driver, explained. "People who value their lives leave. But I was born here and have no place else to go." Of the half-dozen people interviewed who worked at the factory or mine, all had a persistent cough, a symptom of exposure to what residents call "the white needles." Residents also describe strange skin ailments. Doctors interviewed at a dermatology ward say the welts arise from inflammation caused by asbestos. The International Agency for Research on Cancer, which is a branch of the World Health Organization, is in the midst of a multiyear study of asbestos workers in Asbest. Because of the large number of people exposed in the city, the researchers are using the location to determine whether the asbestos causes ailments other than lung cancer, including ovarian cancer. "All forms of asbestos are carcinogenic to humans," the group said. Standing on the rim of the world's largest open pit asbestos mine provides a panoramic scene. Opened in the late 1800s, it is about half the size of the island of Manhattan and the source of untold tons of asbestos. The pit descends about 1,000 feet down slopes created by terraced access roads. Big mining trucks haul out fibrous, gray, raw asbestos. The Uralasbest mine is so close by that a few years ago the mayor's office and the company relocated residents from one outlying area to expand its gaping pit. So entwined is the life of the town with this pit that many newlyweds pose on a viewing platform on the rim to have their pictures taken. The city has a municipal anthem called "Asbestos, my city and my fate." In 2002, the City Council adopted a new flag: white lines, symbolizing asbestos fibers, passing through a ring of flame. A billboard put up by Uralasbest in Asbest proclaims "Asbestos is our Future." The class-action lawsuits that demolished asbestos companies in the United States are not possible in Russia's weak judicial system, which favors powerful producers. Russia, which has the world's largest geological reserves of asbestos, mines about a million tons of asbestos a year and exports about 60 percent of it. Demand is still strong for asbestos in China and India, where it is used in insulation and building materials. The Russian Chrysotile Association, an asbestos industry trade group, reports that annual sales total about 18 billion rubles, or $540 million. And the business is growing, mostly because other countries are getting out of the business. The mine and the factory Uralasbest owns are the principal employers. The town depends on the jobs that mining asbestos and making asbestos products bring. Nationwide, the industry employs 38,500 Russians directly while about 400,000 people depend on the factories and mines for their livelihood, if supporting businesses in the mining towns are counted. About 17 percent of Asbest residents work in the industry. Asbest is a legacy of the philosophy known as gigantism in Soviet industrial planning. Many cities wound up with only one, huge factory like this town's sprawling asbestos plant. The cities, known as monotowns, were an important engine of the economy. A Russian government study counted 467 cities and 332 smaller towns that depend on a single factory or mine. A total of 25 million people out of Russia's population of 142 million people live in towns with only one main industry that cannot close, even if it is polluting. In a sign of just how scarce other employment options are in Asbest, a guard requires cars leaving the factory to open their trunks, lest anyone try to steal scrap metal for resale. That is about the only other way to make a meager living in Russia's old industrial towns. The trade association says that the type of asbestos mined in Russia, called chrysotile, is less harmful than other types. The United States, though, has tightly restricted its use. The country imports about 1,000 tons of asbestos, mainly from Brazil, for use in aerospace and automotive industries for items like clutch pads. "They consider it dangerous but we consider it safe," said the association's spokesman, Vladimir A. Galitsyn. Russia has three research institutes dedicated to studying uses for asbestos. "As a representative of the industry, I don't see any problem," he said. Properly handled, asbestos is safe, he said, and it saves lives in fires. "We are not the enemy of our workers. If they died, then people would be afraid to work for us." Valentin K. Zemskov, 82, worked at the mine for 40 years and developed asbestosis, a respiratory illness caused by breathing in asbestos fibers, which scar lung tissue. "There was so much dust you couldn't see a man standing next to you," he said of his working years. For the disability, the factory adds 4,500 rubles, or about $135, to his monthly retirement check, which would be enough to cover only a few restaurant meals. Still, he said the city had no other choice. "If we didn't have the factory, how would we live?" he said, gasping for air as he talked in the yard of a retirement home. "We need to keep it open so we have jobs." A monument to residents who died was made, grimly, of a block of asbestos ore, with the inscription "Live and Remember." "Of course asbestos dust covers our city," said Nina A. Zubkova, another resident of the retirement home. "Why do you think the city is named Asbest?" * Class Actions Challenge "Church Plan" Status of Pension Plans --------------------------------------------------------------- McDermott Will & Emery reports that recent complaints challenging the "church plan" status of certain pension plans maintained by church-sponsored hospital systems may signal the beginning of a new wave of lawsuits challenging underfunded church pension plans. Sponsors of church plans would be well advised to examine their church plans and assess the risk associated with the plan's funded status and the strength of their position that the plan qualifies as a church plan. At least five complaints have now been filed by plaintiffs' class action law firms challenging the "church plan" status of certain pension plans maintained by church-sponsored hospital systems. Employee benefit plans that qualify as "church plans" generally are exempt from many of the federal tax law and federal pension law requirements (largely under the Employee Retirement Income Security Act of 1974, or ERISA) that apply to other plans, including minimum vesting rules, U.S. Department of Labor reporting and disclosure rules, Pension Benefit Guaranty Corporation premium payment and insurance protection, and (most critically) minimum funding requirements for pension plans. The objective of these class action lawsuits is a court order or settlement that would force the targeted hospital systems to provide additional funding for the plans, part of which funding would end up as huge legal fees for the plaintiffs' lawyers. According to the complaints, certain of the targeted plans are notably underfunded when compared to the funding that would be required for nonchurch pension plans subject to ERISA. The imposition of ERISA's funding requirements on pension plans having projected liabilities that greatly exceed assets would impose a significant financial hardship on the sponsors of those plans. Background ERISA generally imposes extensive requirements on the sponsors of employee benefit plans. However, Section 33(3) of ERISA exempts from ERISA's requirements any plan "established and maintained . . . for its employees (or their beneficiaries) by a church or by a convention or association of churches." Many nonprofit hospital systems originally founded by religious orders continue to maintain frozen or active pension plans that have been ruled by the Internal Revenue Service (IRS) to be, or are treated as being, "church plans" and thus exempt from ERISA and its funding and other requirements. Recent complaints, filed on behalf of church plan participants by two plaintiffs' class action firms, allege that the pension plans of the named hospital systems do not qualify as church plans, with the goal of subjecting those plans to more stringent ERISA requirements and obtaining a court order or settlement resulting in more funding of the pension benefits earned under those plans. By way of example, plaintiffs in one of the recent complaints claim that the underfunding in that particular pension plan is around $1.2 billion. Substance of Complaints The complaints attempt to overturn a well-settled IRS ruling position on church plan status by making three arguments in each case. The first argument is that church plan status should not be allowed at all for hospital-sponsored pension plans. This argument alleges that a church plan must be established by a church or convention or association of churches, and not by a hospital or hospital system (even if that hospital or hospital system is a church-sponsored and church-affiliated organization). For this allegation to succeed, the court reviewing the complaint would have to disagree with more than 30 years of IRS and Department of Labor rulings, as well as prior case law, holding that an entity controlled by or associated with a church can establish and maintain a church plan. These rulings look at several factors to determine whether the organization sponsoring the church plan is controlled by or affiliated with a church, such as the power of the church to appoint and replace the members of the plan sponsor's governing board, the common religious bonds of the plan sponsor and the church, and inclusion of the plan sponsor in a directory or other listing of church-affiliated entities. The complaints in essence say that this is a misreading of the law and ask the court to find that a church plan may be sponsored only by a church or by a convention or association of churches. The second argument is that, even if the church plan could be sponsored by the hospital system, the hospital system in each case is insufficiently controlled by or associated with the church. The complaints examine what they assert to be the hallmarks of church control and church association, and allege that the hospital system entities do not exhibit these hallmarks of control and association sufficiently. The complaints specifically allege that each hospital "purports to share only some religious convictions with the Catholic Church, while deliberately choosing to distance itself from, and/or deny, other religious convictions of the Catholic Church when it is in its economic interest to do so." Those economic interests include hiring non-Catholic employees, performing or authorizing medical procedures prohibited by the Catholic Church, providing spiritual support and encouragement to patients that is divergent from and contrary to the Catholic Church teachings, investing in business enterprises not related to the Catholic Church and, for certain of the named hospital systems, partnering in for-profit ventures with organizations that do not require religious convictions common to the Catholic Church. The complaints conclude that, because the hospital systems are not "associated with" the Catholic Church in this stricter sense, "substantially all" of the employees participating in the plans are not employees of a tax-exempt organization that is controlled by or associated with a church or convention of churches, and as a result the plans are not church plans. The third argument is that the church plan exemption under ERISA violates the First Amendment to the U.S. Constitution. This argument essentially is that permitting an organization to avoid the requirements of ERISA because of its control by or association with a church is a means of establishing a religion in violation of the First Amendment. This argument is worded so broadly that, if accepted, it would appear to invalidate the entire church plan exemption from ERISA. This appears to be a "reserve" argument that plaintiffs' lawyers might pursue even if the other two arguments are unsuccessful. What's Next? These recent complaints challenging church plan status likely are the beginning of a new wave of lawsuits challenging underfunded church pension plans. Now that the number of these lawsuits is up to five, sponsors of church plans would be well advised to examine their church plans and assess both the risk associated with the plan's funded status and the strength of their position that the plan qualifies, and is being maintained and administered consistently, as a church plan. In this regard it is worth noting that the IRS will rule, and is continuing to issue favorable rulings, on the status of a plan as a church plan. Arbitration Clause Hinders Employees From Joining Class Action Alan Semuels, writing for Los Angeles Times, reports that when Jose Tadeo Gamez Flores realized that his employer had failed to pay him for all the hours he was working as a janitor, he did what many other employees might do in the same situation: He tried to sue to recover the lost wages. But Mr. Flores, 34, ran into an obstacle when he tried to file a class-action lawsuit to get back his and other janitors' wages. He had signed away his right to file a lawsuit against his employer. After being hired, Mr. Flores had been presented with a pile of papers to sign. And he had unknowingly agreed not to take any legal problem with his bosses to the courts, but instead go to a private arbitrator handpicked by his employer. "This is the equivalent to saying you have to give up your right to vote in an election," said Ari Moss, Flores' attorney. "It's about punishing the poor and the weak, and saying you don't have the right to come and seek redress." Emboldened by a series of Supreme Court decisions and an employers' job market, many companies are starting to require workers to sign away their rights in return for a job. It is a trend that experts worry could further wear away employees' power in the workplace. The contracts make it harder for employees to join class-action lawsuits, take their employers to court, or leave to go work somewhere else. "You can see this common thread of making it more difficult to have your day in court," said David Yamada, a professor at Suffolk University Law School in Boston. "The legal climate for employees is a tough one." Employers defend arbitration agreements as a low-cost way to resolve disputes while freeing up space in the overburdened court system. But some lawyers label arbitrators "corporate courts" because the arbitrator is hired by the employer, and because employers statistically win much more in arbitration than they do in courts. "It unevens the playing field," said Paul Bland, a senior attorney at Public Justice. "It used to be if you took away a right that you would have under normal law, the courts would throw it out." The use of these arbitration agreements has become more common since a 2011 Supreme Court decision, AT&T Mobility vs. Concepcion, that made it easier to prevent workers from participating in class-action lawsuits, Mr. Bland said. That further complicates things for employees who have small claims that aren't big enough for a lawyer to take on unless they turn into a class-action lawsuit. Mazhar Saleem is bound to his employer by a number of contracts that made it difficult to earn enough money to live, but also hard to go work anywhere else. He drives a town car for a company in New York as an independent contractor, rather than as a full-time employee. That means he doesn't get benefits, never receives overtime, and isn't guaranteed set hours. But he also signed a non-compete contract when he started working, meaning he can't drive a car for anyone else in New York. So even if his employer doesn't give him any work, he's not allowed to go find it elsewhere, says his attorney, Michael Scimone, with the law firm Outten and Golden. "It ties into the larger theme of employers trying to use contracts to alter pieces of the employment relationship that are supposed to be governed by law," Mr. Scimone said. Non-compete clauses, once a staple of the high-tech world, are being extended to cover hairdressers, auto mechanics, exterminators and other professions that courts would traditionally not uphold them for, lawyers say. They essentially mean an employee can't leave a job to take another one nearby, unless he or she wants to stop working for a year or so. It's a way to keep promising employees from leaving, said Matt Marx, a Massachusetts Institute of Technology professor who has studied these contracts. "Given the increased job mobility of today's world, companies are saying, 'We can't count on people to be here forever. We have to lock them up with contracts,'" he said. In a recent case in Worcester, Mass., three women working at a hair salon tried to leave after their conditions at work deteriorated. All three received cease-and-desist letters when they started working elsewhere, because they had signed non- compete clauses. They had to wait a year for the clauses to expire before they could work in the area again. In other contracts being distributed at the workplace, employees agree to pay the costs of litigation if they lose, and employers shorten the amount of time in which employees can sue them. All of these contracts make it less likely for employees to win against their bosses in court -- if they are even allowed to take them to court. That means lawyers will be more hesitant to take on workplace cases because it has gotten more difficult for them to win them, said Catherine Fisk, an employment law professor at the University of California-Irvine's law school. "The less likely an employee is to file a claim, the less incentive a company has to extend money and other resources to prevent the illegal discrimination from happening," she said. Two recent Supreme Court decisions have made it harder for employees to win discrimination suits. Many employment lawyers say they're not surprised that courts have made life tougher for employees. Since the beginning of the Roberts court, experts say, the Supreme Court has issued decision after decision cutting back employees' legal avenues to complain. "Since the Warren court, employers have done well at the Supreme Court, but in the Roberts court, they have done exceptionally well," said Cynthia Estlund, a professor at New York University's School of Law. John Roberts Jr. became chief justice in 2005. Law historians trace the court's conservative leanings to the long stretches of Republicans in the White House in the 1980s and 2000s that allowed presidents to appoint more conservative judges to lower courts and to the Supreme Court. Adding up seven years of decisions, the workplace is getting to be a tough place for many, said Cliff Palefsky, an employment lawyer at McGuinn, Hillsman & Palefsky in San Francisco. Employers already can ask employees to work harder for less because the job market is still so sluggish in many fields. But in some cases, employees who think they can find a better situation elsewhere are going to have trouble doing so. "The law is being undermined and it's putting some workers in a bind," Mr. Palefsky said. In some situations, when non-compete clauses are mixed with arbitration agreements, he said, "We're one step away from indentured servitude." * Class Actions Over Privacy Breach on the Rise ----------------------------------------------- Lawrence T. Gresser and Karen H. Bromberg, writing for New York Law Journal, report that in one of the largest privacy class action suits ever filed, the U.S. Court of Appeals for the Seventh Circuit recently affirmed a federal district court decision allowing a class action to proceed against comScore, an online data research company, for alleged violations of federal privacy statutes. The class, which is likely to total well over one million members, includes all individuals who have downloaded the company's software since 2005. At the heart of the complaint is plaintiff's claim that comScore's software collects more personal information about users than is disclosed in the company's terms of service and that the company sells this information to third parties, who in turn use the data for marketing research. Historically, plaintiffs have had a difficult time showing that they have sustained damages from alleged privacy violations, and this has frustrated most attempts to bring privacy class actions. However, in comScore, the lead plaintiffs were found to have standing, and the purported class was certified, based on statutory damages, not actual damages. The comScore decision and other recent decisions allowing privacy cases to proceed in the absence of actual damages suggest that the legal landscape may be changing, and that privacy could be the next significant frontier in consumer class action litigation. This article provides an overview of privacy actions, reviews the defenses -- injury and standing -- that have made it difficult for plaintiffs to prevail, and discusses recent case law and the future of privacy class action litigation. Consumer Privacy Actions Security breaches involving personal information are occurring more frequently and affecting many more people than in the past. According to a June 2013 report from the Privacy Rights Clearinghouse, "the total number of records containing sensitive personal information involved in security breaches in the United States is 608,087,870 in 3,763 data breaches since January 2005." The result, unsurprisingly, has been an increase in privacy litigation in general, and a rise in the frequency of privacy class actions in particular. Consumer privacy actions are typically based on allegations of inappropriate collection of personal data resulting from: (i) human error, theft, or malicious attacks; or (ii) the affirmative acts of companies collecting personal data without appropriate notice and consent. These lawsuits have most often included common law claims of negligence, breach of contract, unjust enrichment, trespass to personal property/chattel, invasion of privacy, and/or breach of the implied covenant of good faith and fair dealing, as well as statutory claims under state consumer protections acts and state data breach notification laws. More recently, plaintiffs have sued under federal statutory causes of action such as the Computer Fraud and Abuse Act, an anti-hacking statute (the CFAA). But, as discussed infra, privacy plaintiffs asserting these claims have confronted significant obstacles. Common Obstacles: Standing and Injury To bring a private action in federal court, a plaintiff must show that he or she has suffered "injury in fact" sufficient to meet the case or controversy requirement of Article III of the U.S. Constitution. This injury must be "concrete and particularized" and "actual or imminent," not merely speculative.5 Absent concrete allegations that a privacy plaintiff has suffered actual economic losses from the disclosure or mishandling of personal information, a number of courts have rejected allegations that plaintiffs suffered injury in fact and have dismissed privacy class actions on standing grounds. Such was the case for the plaintiffs in In re Google Street View Elec. Commc'ns Litig. There, the court dismissed plaintiffs' claims under California's consumer protection statute because plaintiffs failed to plead facts showing that Google's alleged collection of their Wi-Fi usage data caused plaintiffs to lose or expend money. A similar inability to allege actual damages resulted in the dismissal of a $5 million class action lawsuit against the social networking site LinkedIn, involving the alleged compromise of 6.5 million users' passwords. Here, the plaintiffs pled a total of nine causes of action including breach of contract, unjust enrichment, breach of the implied covenant of good faith and fair dealing, breach of an implied contract to reasonably safeguard user information, negligence and negligence per se. Holding that any damage to LinkedIn users was abstract and that plaintiffs failed to provide evidence of injury that was concrete and particularized, the court dismissed the complaint. In LaCourt v. Specific Media, plaintiffs alleged that Specific Media, an online third-party ad network, used flash cookies, which cannot be deleted and never expire, to track users across websites and to circumvent the privacy and security controls of users who had set their browsers to block third-party cookies. The plaintiffs asserted state law claims for invasion of privacy, consumer protection violations, unfair competition, trespass, and unjust enrichment, and a federal claim for violation of the CFAA. The federal district court in California found that plaintiffs, who did not articulate how they were deprived of the economic value of their personal information, failed to allege harm or economic injury sufficient to demonstrate standing. Changing Landscape? Recent cases however, suggest that the legal landscape may be changing. In 2010, the U.S. Court of Appeals for the Ninth Circuit held in Edwards v. First Am. that a plaintiff who had suffered no monetary loss nonetheless had standing to challenge a violation of the Real Estate Settlement Procedures Act (RESPA). RESPA prohibits the payment of "any fee, kickback, or thing of value" in exchange for business referrals. The statute provides that when a violation occurs, the defendant can be held liable in an "amount equal to three times the amount of any charge paid for such settlement service." The court held that because RESPA gave the plaintiff a statutory cause of action, the plaintiff had standing to pursue claims against the defendants despite its failure to allege any actual or concrete injury from the RESPA violation. Although Edwards arose in the narrow context of an alleged RESPA violation, the implications of the decision for privacy litigation have not been lost on plaintiffs' lawyers: They are increasingly filing purported privacy class actions based upon alleged violations of federal privacy laws with statutory damages provisions, including the Electronic Communications Privacy Act (ECPA), also known as the Wiretap Act (18 U.S.C. Sections 2510, et seq.), and the Stored Communications Act (SCA) (18 U.S.C. Sections 2701, et seq.). In addition to providing a potential avenue for avoiding standing problems, the relatively modest statutory damages available under these statutes can be enormous when aggregated over a class. Privacy Class Actions After 'comScore' The comScore decision shows that if plaintiffs are found to have standing to bring privacy claims based solely on statutory damages, with no need to make "concrete and particularized" allegations of actual damages, the resulting class actions can be enormous. In comScore, the U.S. District Court for the Northern District of Illinois certified a putative privacy class based on the statutory damages available under the ECPA and the SCA and the superiority of the class action mechanism for resolving plaintiffs' CFAA claims, notwithstanding uncertainty about the existence and amount of plaintiffs' actual damages. Plaintiffs in comScore brought claims for unjust enrichment and for violations of the SCA, the ECPA, and the CFAA, alleging that defendants improperly obtained and used personal information after consumers downloaded and installed the company's software. The crux of plaintiffs' claims was that comScore's data collection violated the terms of the User License Agreement and the Downloading Statement. The court denied class certification on the unjust enrichment claim, but granted certification for the federal statutory claims, rejecting comScore's argument that the issue of whether each individual plaintiff suffered damage or loss from the alleged privacy violations precluded class certification. The court ruled that the SCA and the ECPA provided statutory damages for which only a violation must be established, and noted that although the CFAA required proof of loss aggregating to at least $5,000 in value, "individual factual damages issues do not provide a reason to deny class certification when the harm to each plaintiff is too small to justify resolving the suits individually." Courts in the Ninth Circuit have likewise permitted privacy class actions to go forward based solely on claimed violations of federal statutes with statutory damages provisions. In Gaos v. Google, the U.S. District Court for the Northern District of California dismissed the named plaintiff's common law claims but allowed her claims under the SCA to survive, holding that "the SCA provides a right to judicial relief based only on a violation of the statute without additional injury." See also In re Facebook Privacy Litig. (plaintiffs established standing when they alleged a violation of the ECPA); In re Zynga Privacy Litig.19 (holding that "a violation of one's statutory rights under the SCA is a concrete injury); Cousineau v. Microsoft (denying motion to dismiss for lack of Article III standing where plaintiff alleged an SCA violation). However, the Fourth Circuit has reached the opposite conclusion. In Van Alstyne v. Elec. Scriptorium the Fourth Circuit ruled that a plaintiff must prove actual damages to recover a statutory award under the SCA. See also Sterk v. Best Buy Stores, (claim for violation of Video Privacy Protection Act based on alleged disclosure of plaintiff's movie purchase history was insufficient to confer Article III standing). It is not too soon to wonder whether the emerging split between courts permitting privacy cases to go forward based solely on statutory damages and those requiring actual damages will eventually be resolved by the U.S. Supreme Court -- and to wonder what might happen there. The implications of this seemingly narrow question for class action jurisprudence and for online businesses are enormous: comScore suggests that if a lead plaintiff in a purported privacy class action can overcome the standing hurdle by citing statutory damages, then the class certification hurdle may also be manageable. The stakes are high. * Fraudsters Target Customers in Bank Fee Class Action ------------------------------------------------------ Herald on Sunday reports that legal action on bank fees has given fresh inspiration to scammers, the banking industry warns. A large number of Australian customers have been contacted by fraudsters who say if they make a small payment, the fees claimed in the class action will be released to them. Bankers' association chief executive Kirk Hope said: "It's likely fraudsters will capitalize on the group action in New Zealand to obtain payments from customers or gain access to their personal banking details." He said it was a reminder customers should never give out passwords or PINs to anyone. Another email has also gone out claiming to be from Westpac, asking customers to update their online banking details. It gives a link for customers to follow. This should be ignored. * Landscape of Arbitration Agreements Faces Significant Evolution ----------------------------------------------------------------- Christina M. Kennedy, Esq. -- ckennedy@foley.com -- at Foley & Lardner, reports that the landscape of arbitration agreements and their effect on class action matters has been an area of significant evolution in recent years. Indeed, just two weeks ago, Foley & Lardner reported on the latest Supreme Court decision that seemed to put a damper on the belief that arbitration agreements might provide a helpful avenue to stemming the tidal wave of employment and wage and hour class actions that has washed over many employers in recent years. And then, at the end of its fall 2012 term, the Supreme Court has now reenergized that hope with its decision in American Express Co. v. Italian Colors Restaurant, where the Court ruled that express class action waivers are enforceable, even where precluding claims from proceeding on a class basis seems to make them economically non- viable. The "high" cost of arbitration is an oft-relied upon argument put forth by individual plaintiffs when seeking to invalidate an arbitration clause mandating either individual litigation or arbitration, as opposed to class arbitration, of their claims. Not persuaded by this claim, in American Express, the Court ruled that merchants seeking to sue American Express were bound by the terms of their agreements to arbitrate their claims on an individual, non-class basis. The Court reached this conclusion despite the merchants' arguments that the cost of pursing the antitrust claims on an individual basis was "too high" to vindicate their rights, and the most any could hope to recover in damages is $38,549, far less than the estimated million dollar price tag it would take to gather the experts and evidence to prove their case. The merchants thus claimed that these cost differentials essentially meant they could not "vindicate their statutory rights" and should not be forced to arbitrate on an individual basis. The Court was not convinced, and in its opinion, it stated, "the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim." Rather, "courts must 'rigorously enforce' arbitration agreements according to their terms." This is so, the Court further explained, even in the face of ". . . the fact that it is not worth the expense involved in proving a statutory remedy does not constitute the elimination of the right to pursue that remedy." American Express represents an important victory for those seeking to enforce arbitration clauses with class action waivers, which a trending number of employers have adopted since the Supreme Court's decision in AT&T Mobility v. Concepcion. Questions nevertheless remain as to whether the Supreme Court, and lower courts, would view claims other than antitrust claims in a different light. Would a court be more willing to look at the cost for plaintiffs seeking to recover for unpaid wages or discrimination? As those questions get fleshed out, in the interim, the Supreme Court's most recent decision is certainly a "win" in terms of employers fighting against cost challenges to arbitration clauses and using such clauses as a potential mechanism to fight off costly class action litigation. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. 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