/raid1/www/Hosts/bankrupt/CAR_Public/130724.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, July 24, 2013, Vol. 15, No. 144
Headlines
ACTAVIS INC: Still Faces Suits Over Cipro in State Courts
ACTAVIS INC: Trial Yet to be Set in TCPA Breach Suits v. Anda
ACTAVIS INC: Medical West Issues Under Consideration in "Nack"
ACTAVIS INC: Moves to Junk Claims in Stock Suit Over Prochieve
ACTAVIS INC: Faces Issues Over Brand & Generic Drug Makers Deals
ANADARKO PETROLEUM: Must Face Investor Suit Over BP Oil Spill
APPLE INC: Suit Over Copycat Apps Can Proceed as Class Action
AVX CORPORATION: Faces Suits Over Pollution in S.C. Property
BECK ENERGY: Ohio Appeals Court to Hear Class Suit Over Oil Leases
BOEING INC: 83 Asiana Passengers File Class Suit Over July 6 Crash
CANADA: Ontario Court Certifies Sixties Scoop Class Action
CELLCOM ISRAEL: Subscribers' Class Action Dismissed With Prejudice
DOLLAR TREE: Decertification of FSLA Violations Suit Under Appeal
DOLLAR TREE: Discovery Continues in Suit by Calif. Employee
DOLLAR TREE: Still Facing FLSA Violations Suits in 5 States
DOLLAR TREE: Settles "Seating" Suit Filed by Former Associate
DOLLAR TREE: Suit Over Store Employees' Rest Breaks Remanded
DOLLAR TREE: Employee Misclassification Suit Now in Federal Court
DOLLAR TREE: Labor Suit by Store Employee Moved to Federal Court
EAGLE MATERIALS: Drywall Price Fixing Suit Consolidated in Penn.
ELECTRONIC ARTS: Awaits Final OK of Antitrust Suit in Calif.
FORD MOTOR: Faces Class Action Over MyFord Touch Defects
FORD MOTOR: Hagens Berman Files Class Action Over MyFord Touch
FOREST LABORATORIES: Still Faces Antitrust MDL in Illinois
FOREST LABORATORIES: Plaintiffs Amend Suit Over Celexa, Lexepro
FOREST LABORATORIES: Sued in Calif. Over Lexapro Advertising
FOREST LABORATORIES: Discovery Ongoing in Suit Over Celexa
FOREST LABORATORIES: Moves to Dismiss Claims in "Barrett" Suit
GOLD RESOURCE: Colo. Court Grants Motion to Dismiss Class Action
ING US: Sued by 401(k) Plan Sponsors Over Alleged ERISA Breach
IPARTY CORP: Settles "Halstead" Suit Over Merger With Party City
LOUISIANA: Education Dep't Sued Over State Funding Formula
LOUISIANA-PACIFIC CORP: Court Reinstates Trimboard Class Action
MCKESSON CORP: Milford to Get $72,000 in Class Action Payout
MICHAELS STORES: Wins OK of Accord in Suit by Former Employees
MICHAELS STORES: "Carson" Suit Remanded to San Diego Super. Court
MICHAELS STORES: "Tyler" Zip Code Lawsuit Remanded to Mass. Court
MICHAELS STORES: Faces Suit Over Framing Products Discount
MICHAELS STORES: Accord in Suit Over Card Terminals Approved
MURPHY USA: 3 Hot Fuel Suits in California Remanded for Trial
NATIONAL FINANCIAL: Faces Suit Over Merger With Patriot Parent
NETSPEND HOLDINGS: "Koehler" Plaintiff Denied Injunction Request
NVIDIA CORPORATION: Appeal v. Approval of GPU Suit Accord Pending
NEW NEWSCORP: Motion to Dismiss N.Y. Securities Suit Pending
NEW NEWSCORP: MDL Related to HarperCollins' eBooks Continues
NEW NEWSCORP: Antitrust Suit Settlement Over eBooks Sale Approved
NEW NEWSCORP: Canadian Suit Over HarperCollins' eBooks Ongoing
NEW NEWSCORP: DRM Lawsuit in N.Y. Faces Dismissal Motion
NF INVESTMENT: Carlyle Seeks Reconsideration in Antitrust Suit
NF INVESTMENT: Appeal v. Dismissal of Securities Suit in Abeyance
NVIDIA CORPORATION: Suit Over Weak Die/Packaging Now Closed
NVIDIA CORPORATION: Appeal Filed Against Dismissal of Stock Suit
NVIDIA CORPORATION: Books $475MM in MCP & GPU Warranty Charges
PLANTRONICS INC: Paying Settlements in Bluetooth Headset Suit
SEARS HOLDINGS: Still Faces Suits by Hourly & Salaried Associates
SIGNET JEWELERS: Suit Over Employment Practices in Arbitration
SIGNET JEWELERS: Discovery Ongoing in Gender Discrimination Suit
SPORT CHALET: Settles "Bennett" Suit by Wheelchair-Bound Persons
SRO ENTERTAINMENT: Salmon Fest Class Action Uncertain, Lawyer Says
STARBURST II: Kansas Court Junks Consolidated Securities Action
SUPERVALU INC: Still Faces RICO Violations Suit in Wisconsin
SUPERVALU INC: Seeks Rehearing After Reversal of Dismissal Order
SWISHER HYGIENE: Stock Suit Plaintiffs File Consolidated Claim
TOYOTA MOTOR: July Hearing Set in Product Liability Suit Accord
TOYOTA MOTOR: July Hearing in Suit Over Non-Recalled Vehicles Set
TOYOTA MOTOR: Settlement in Lawsuit by ADR Investors Approved
UNITED TELEPHONE: Cramming Suit Won't Proceed as Class Action
* 30,000 Minnesotans Have Yet to Receive LCD Settlement Checks
*********
ACTAVIS INC: Still Faces Suits Over Cipro in State Courts
---------------------------------------------------------
Actions remain pending against Actavis, Inc. in various state
courts, including California, Kansas, Tennessee, and Florida over
its alleged unlawful, anticompetitive conduct in connection with
alleged agreements related to the development, manufacture and
sale of the drug substance ciprofloxacin hydrochloride, according
to Exhibit 99.1 of the company's June 17, 2013, Form 8-K filing
with the U.S. Securities and Exchange Commission.
Beginning in July 2000, a number of suits were filed against the
Company, The Rugby Group, Inc. ("Rugby") and other company
affiliates in various state and federal courts alleging claims
under various federal and state competition and consumer
protection laws. Several plaintiffs have filed amended complaints
and motions seeking class certification.
Approximately 42 were cases filed against the Company, Rugby and
other Company entities. Many of these actions have been dismissed.
Actions remain pending in various state courts, including
California, Kansas, Tennessee, and Florida. The actions generally
allege that the defendants engaged in unlawful, anticompetitive
conduct in connection with alleged agreements, entered into prior
to the Company's acquisition of Rugby from Sanofi Aventis
("Sanofi"), related to the development, manufacture and sale of
the drug substance ciprofloxacin hydrochloride, the generic
version of Bayer's brand drug, Cipro.
The actions generally seek declaratory judgment, damages,
injunctive relief, restitution and other relief on behalf of
certain purported classes of individuals and other entities. In
the action pending in Kansas, the court has administratively
terminated the matter. There has been no action in the cases
pending in Florida and Tennessee since 2003. In the action pending
in the California Superior Court for the County of San Diego ( In
re: Cipro Cases I & II, JCCP Proceeding Nos. 4154 & 4220 ), on
July 21, 2004, the California Court of Appeal ruled that the
majority of the plaintiffs would be permitted to pursue their
claims as a class.
On August 31, 2009, the California Superior Court granted
defendants' motion for summary judgment, and final judgment was
entered on September 24, 2009. On October 31, 2011, the California
Court of Appeal affirmed the Superior Court's judgment. On
December 13, 2011, the plaintiffs filed a petition for review in
the California Supreme Court. On February 15, 2012, the California
Supreme Court granted review. On September 12, 2012, the
California Supreme Court entered a stay of all proceedings in the
case pending possible action by the United States Supreme Court in
an unrelated case that raises similar legal issues.
In addition to the pending actions, the Company understands that
various state and federal agencies are investigating the
allegations made in these actions. Sanofi has agreed to defend and
indemnify the Company and its affiliates in connection with the
claims and investigations arising from the conduct and agreements
allegedly undertaken by Rugby and its affiliates prior to the
Company's acquisition of Rugby, and is currently controlling the
defense of these actions.
ACTAVIS INC: Trial Yet to be Set in TCPA Breach Suits v. Anda
-------------------------------------------------------------
No trial date yet has been set in lawsuits alleging violations of
the Telephone Consumer Protection Act (TCPA) against Anda, Inc., a
subsidiary of Actavis, Inc., according to Exhibit 99.1 of the
company's June 17, 2013, Form 8-K filing with the U.S. Securities
and Exchange Commission.
The suit is Medical West Ballas Pharmacy, Ltd., et al. v. Anda,
Inc., (Circuit Court of the County of St. Louis, State of
Missouri, Case No. 08SL-CC00257).
In January 2008, Medical West Ballas Pharmacy, LTD, filed a
putative class action complaint against the Company alleging
conversion and alleged violations of the Telephone Consumer
Protection Act ("TCPA") and Missouri Consumer Fraud and Deceptive
Business Practices Act.
In April 2008, plaintiff filed an amended complaint substituting
Anda, Inc., a subsidiary of the Company, as the defendant. The
amended complaint alleges that by sending unsolicited facsimile
advertisements, Anda misappropriated the class members' paper,
toner, ink and employee time when they received the alleged
unsolicited faxes, and that the alleged unsolicited facsimile
advertisements were sent to the plaintiff in violation of the TCPA
and Missouri Consumer Fraud and Deceptive Business Practices Act.
The TCPA allows recovery of minimum statutory damages of $500 per
violation, which can be trebled if the violations are found to be
willful. The complaint seeks to assert class action claims on
behalf of the plaintiff and other similarly situated third
parties. In April 2008, Anda filed an answer to the amended
complaint, denying the allegations. In November 2009, the court
granted plaintiff's motion to expand the proposed class of
plaintiffs from individuals for which Anda lacked evidence of
express permission or an established business relationship to "All
persons who on or after four years prior to the filing of this
action, were sent telephone facsimile messages advertising
pharmaceutical drugs and products by or on behalf of Defendant."
In November 2010, the plaintiff filed a second amended complaint
further expanding the definition and scope of the proposed class
of plaintiffs. On December 2, 2010, Anda filed a motion to dismiss
claims the plaintiff is seeking to assert on behalf of putative
class members who expressly consented or agreed to receive faxes
from Defendant, or in the alternative, to stay the court
proceedings pending resolution of Anda's petition to the FCC. On
April 11, 2011, the court denied the motion. On May 19, 2011, the
plaintiff's filed their motion seeking certification of a class of
entities with Missouri telephone numbers who were sent Anda faxes
for the period January 2004 through January 2008. The motion has
been briefed and was scheduled for hearing on May 15, 2013. No
trial date has been set in the matter.
On May 1, 2012, an additional action under the TCPA was filed by
Physicians Healthsource, Inc., purportedly on behalf of the "end
users of the fax numbers in the United States but outside Missouri
to which faxes advertising pharmaceutical products for sale by
Anda were sent." ( Physicians Healthsource Inc. v. Anda Inc .
United States District Court for the Southern District of Florida,
12 CV 60798). On July 10, 2012, Anda filed its answer and
affirmative defenses. The matter is in its preliminary stages and
no trial date has been set.
ACTAVIS INC: Medical West Issues Under Consideration in "Nack"
--------------------------------------------------------------
Several issues raised in plaintiff's motion for class
certification in the matter Medical West Ballas Pharmacy, Ltd., et
al. v. Anda, Inc., (Circuit Court of the County of St. Louis,
State of Missouri, Case No. 08SL-CC00257) are currently under
consideration in the Eighth Circuit Court of Appeals in an
unrelated case to which Anda is not a party, Nack v. Walburg, No.
11-1460, according to Exhibit 99.1 of Actavis, Inc.'s June 17,
2013, Form 8-K filing with the U.S. Securities and Exchange
Commission.
Nack concerns whether there is a private right of action for
failing to include any opt-out notice on faxes sent with express
permission, contrary to a Federal Communications Commission (FCC)
Regulation that requires such notice on fax advertisements. The
Eighth Circuit granted Anda leave to file an amicus brief and to
participate during oral argument in the matter, which was held on
September 19, 2012. No decision has been issued to date.
In a related matter, on November 30, 2010, Anda filed a petition
with the FCC, asking the FCC to clarify the statutory basis for
its regulation requiring "opt-out" language on faxes sent with
express permission of the recipient (the "FCC Petition"). On May
2, 2012, the Consumer & Governmental Affairs Bureau of the FCC
dismissed the FCC Petition. On May 14, 2012, Anda filed an
application for review of the Bureau's dismissal by the full
Commission, requesting the FCC to vacate the dismissal and grant
the relief sought in the FCC Petition. The FCC has not ruled on
the application for review.
Anda believes it has substantial meritorious defenses to the
putative class actions brought under the TCPA, including but not
limited to its receipt of consent to receive facsimile
advertisements from many of the putative class members, and
intends to defend the actions vigorously. However, these actions,
if successful, could have a material adverse effect on the
Company's business, results of operations, financial condition and
cash flows.
ACTAVIS INC: Moves to Junk Claims in Stock Suit Over Prochieve
--------------------------------------------------------------
A motion to dismiss all claims in an amended complaint filed in a
securities suit against Actavis, Inc. in relation to disclosures
regarding approval of Prochieve progesterone gel, remains pending,
according to Exhibit 99.1 of the company's June 17, 2013, Form 8-K
filing with the U.S. Securities and Exchange Commission.
On June 8, 2012, the Company and certain of its officers were
named as defendants in a consolidated amended class action
complaint filed in the United States District Court for the
District of New Jersey (In re: Columbia Laboratories, Inc.
Securities Litigation, Case No. CV 12-614) by a putative class of
Columbia Laboratories' stock purchasers.
The amended complaint generally alleges that between December 6,
2010 and January 20, 2012, Watson and certain of its officers, as
well as Columbia Laboratories and certain of its officers, made
false and misleading statements regarding the likelihood of
Columbia Laboratories obtaining FDA approval of Prochieve
progesterone gel, Columbia Laboratories' developmental drug for
prevention of preterm birth. Watson licensed the rights to
Prochieve from Columbia Laboratories in July 2010.
The amended complaint further alleges that the defendants failed
to disclose material information concerning the statistical
analysis of the clinical studies performed by Columbia
Laboratories in connection with its pursuit of FDA approval of
Prochieve. The complaint seeks unspecified damages. On August 14,
2012, the defendants filed a motion to dismiss all of the claims
in the amended complaint. The motion to dismiss remains pending.
Watson believes the case is without merit and that it has
substantial meritorious defenses, which it intends to vigorously
pursue. Additionally, Watson maintains insurance to provide
coverage for the claims alleged in the action. However, litigation
is inherently uncertain and the Company cannot predict the outcome
of this litigation. The action, if successful, or if insurance
does not provide sufficient coverage against such claims, could
adversely affect the Company and could have a material adverse
effect on the Company's business, results of operations, financial
condition and cash flows.
ACTAVIS INC: Faces Issues Over Brand & Generic Drug Makers Deals
----------------------------------------------------------------
Actavis Inc. faces issues related to settlements between brand and
generic drug manufacturers, according to Exhibit 99.1 of the
company's June 17, 2013, Form 8-K filing with the U.S. Securities
and Exchange Commission.
Companies are required to file with the Federal Trade Commission
and the Department of Justice certain types of agreements entered
into between brand and generic pharmaceutical companies related to
the manufacture, marketing and sale of generic versions of brand
drugs. This requirement, as well as new legislation pending in
U.S. Congress related to settlements between brand and generic
drug manufacturers, could affect the manner in which generic drug
manufacturers resolve intellectual property litigation and other
disputes with brand pharmaceutical companies and could result
generally in an increase in private-party litigation against
pharmaceutical companies or additional investigations or
proceedings by the FTC or other governmental authorities.
The impact of this requirement, the pending legislation and the
potential private-party lawsuits associated with arrangements
between brand name and generic drug manufacturers, is uncertain
and could adversely affect the company's business.
For example, in January 2009, the FTC and the State of California
filed a lawsuit against the company alleging that the company's
settlement with Solvay related to the company's ANDA for a generic
version of Androgel is unlawful. Numerous private parties
purporting to represent various classes of plaintiffs filed
similar lawsuits.
The company also received requests for information and Statements
of Objection in connection with investigations into settlements
and other arrangements between competing pharmaceutical companies
by the European Competition Commission. For example, two of the
company's Arrow Group subsidiaries currently are the subject of a
European Competition Commission Statement of Objection related to
their 2002 and 2003 settlements of patent litigation related to
citalopram. Any adverse outcome of these actions or
investigations, or actions or investigations related to other
settlements the company entered into, could have a material
adverse effect on the company's business, results of operations,
financial condition and cash flows.
ANADARKO PETROLEUM: Must Face Investor Suit Over BP Oil Spill
-------------------------------------------------------------
Margaret Cronin Fisk and Laurel Brubaker Calkins, writing for
Bloomberg News, report that Anadarko Petroleum Corp., a partner in
the BP Plc well that blew up in 2010 and triggered the largest
U.S. offshore oil spill, must face a lawsuit claiming it misled
investors, a judge said.
U.S. District Judge Keith P. Ellison in Houston dismissed most of
the investors' allegations on July 15 while finding they had
sufficient reason to sue over a statement by an Anadarko senior
vice president, Robert Daniels, after the spill that the company
had no involvement in design or procedures at BP's Macondo well.
"The court finds that one statement in the complaint, made by
defendant Daniels, is adequately pled" under the federal law
governing securities-fraud claims, Judge Ellison said in his
ruling. "Full dismissal is therefore not warranted."
The investors accused Anadarko, which held a 25 percent interest
in London-based BP (BP/)'s well, of understating its role in the
project and falsely claiming it faced minimal financial liability
from the 2010 blowout off the Louisiana coast. The securities-
fraud suit, a class action, was filed seeking recovery of billions
of dollars of lost share value.
Anadarko disputed the investor claims and asked Ellison to throw
out the case.
"We are pleased that almost all of the claims in the Goodwin case
have been dismissed," John Christiansen, a spokesman for The
Woodlands, Texas-based Anadarko, said in an e-mail, citing the
name of a plaintiff. "We will continue to defend the sole
remaining claim."
30 Days
Judge Ellison gave the plaintiffs 30 days to re-plead, or re-
argue, dismissed allegations.
"We're pleased the court has held that Anadarko has to answer
these allegations," John Browne, an investor attorney, said in a
phone interview. "We're going to evaluate our options about re-
pleading."
The April 2010 blast aboard the Deepwater Horizon drilling rig
killed 11 workers and generated hundreds of lawsuits against BP;
Vernier, Switzerland-based Transocean Ltd., owner of the rig; and
Houston-based Halliburton Co., which provided cementing services
for the project.
The lawsuits also named Anadarko and Mitsui & Co. (8031)'s MOEX
Offshore 2007, which had a 10 percent share in the well, as
defendants. Anadarko agreed to pay BP $4 billion to settle its
share of oil-spill claims by private parties. MOEX settled for
$1.07 billion.
Anadarko fell from $73.94 on April 20, 2010, to $34.83 on June 9,
2010, losing $19.3 billion in market capitalization, the
shareholders said.
Class Status
The investors bringing the lawsuit, led by the pension funds of
U.S. Virgin Islands retirees, seek to represent all investors in
Anadarko from June 12, 2009, to June 9, 2010.
The investors claimed Anadarko wasn't a passive partner in the
Macondo well. It "expressly approved and funded a series of
extremely risky decisions made in connection with drilling the
well," the investors said in court filings. Those decisions
"contributed directly to the disaster," they said.
Once the spill occurred, Anadarko attempted to prop up its shares
by continuing to downplay its role in the project, the investors
said.
The plaintiffs focused on a statement by Mr. Daniels in a May 4,
2010, conference call. Mr. Daniels said well design and
procedures were completed before Anadarko became involved in the
project, the plaintiffs said, citing the call.
'Not Involved'
"When you typically approve these as a non-operator, you basically
approve just the capital spending level in the targeted zones from
a geological perspective, as opposed to looking at the detail,
well design or procedures. We were not involved in that at all on
this well," Mr. Daniels said, according to Judge Ellison's
decision.
Judge Ellison found Mr. Daniels's statement could be considered
misleading.
"Viewing the statement in isolation, the inference that Mr.
Daniels spoke with knowledge that his statement was misleading, or
with reckless disregard for whether it was true, is 'cogent and
compelling' -- particularly because he spoke so directly and did
not use any qualifying or hedging words," Judge Ellison said.
The judge said that while the statement was "actionable," it was
"apparently an isolated occurrence, not repeated by Mr. Daniels or
any other Anadarko executive."
Judge Ellison found no merit in the investors' other claims,
including allegations that Anadarko misrepresented its commitment
to safety and its risk-management practices, and was responsible
for misstatements by BP.
Judge Ellison also rejected the plaintiffs' claim that Anadarko
misstated its insurance coverage for the disaster.
The case is In re Anadarko Petroleum Corp. Class Action
Litigation, 12-cv-00900, U.S. District Court, Southern District of
Texas (Houston).
APPLE INC: Suit Over Copycat Apps Can Proceed as Class Action
-------------------------------------------------------------
Jennifer Brown, writing for Canadian Lawyer, reports that a
decision by the Quebec Superior Court to authorize a class action
to go ahead against Apple Inc. may have set the bar to a new low
for certification by not first sorting out whether downloading
free apps deliberately breached the privacy of users.
In Gad Albilia v. Apple Inc. the court authorized a class action
alleging a deliberate breach of privacy by Apple. The class
includes all "residents in Canada who have purchased or otherwise
acquired an iPhone or iPad and who have downloaded free apps from
the App Store" since Dec. 2008 to the present, "or any other group
to be determined by the Court."
Mr. Albilia, a computer engineer, claims Apple knowingly allowed
third parties to design apps that when downloaded would provide
personal information without first telling users and obtaining
their consent.
According to Christine Carron --
christine.carron@nortonrosefulbright.com -- a partner with Norton
Rose Fulbright Canada LLP, 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 if the allegations are
proven to be correct, they would entitle class members to punitive
damages, even in the absence of compensatory damages.
"The class description was just anyone who owned an i-device and
had downloaded a free app. That would have caught any number of
apps that could have actually obtained proper consent first," says
Ms. Carron. "Normally defining a class so broadly would be a bar
to certification or at least the judge should have redefined the
class, but instead he said the judge on the merits can adjust
accordingly."
The court had no list of apps in particular, no consents to look
at, so in the absence of information that would have determined
whether a class action was appropriate and whether description
should be restricted the court went ahead an certified.
"I think this judgment is not consistent with some of the other
judgments we have seen coming out of the court on the bar you need
to meet for certification," says Ms. Carron noting there are
probably hundreds or thousands of apps caught by this class
definition.
"By simply pushing forward the problem onto the shoulders of the
judge on the merits is going to unnecessarily complicate life and
make the trial a very difficult if not unworkable one for all the
parties involved," she adds. "It really is just postponing the
inevitable."
The appropriate time to deal with an overly-broad description of a
class would be at certification, says Ms. Carron, so that those
involved at trial know what facts are at issue and what the legal
issues are that have to be met.
"I think it's an unfortunate decision in that regard," says
Carron.
Counsel for Apple challenged the inclusion of all the apps in one
class but the judge did not accept their arguments.
Mr. Albilia is also involved in other class actions and appears to
have based his case involving Apple apps on a similar action
taking place in the U.S.
While Mr. Albilia alleges he downloaded numerous apps including
those identified in the American case that are reported to collect
and transmit personal information, Mr. Albilia in fact does not
have a cause of action himself.
In his decision, Justice Pierre Nollet wrote Mr. Albilia: ". . .
does not allege having used those Apps and he has no personal
knowledge as to which Apps actually collect and transmit such
information. In fact, he relies almost entirely on the American
case, the Wall Street Journal and the Eric Smith's article to
support his claim. This is all hearsay at this point. This does
not disqualify the Petitioner as a representative. The Court must
provide Petitioner and the Class Members the opportunity to prove
their allegations. Because of the nature of Class Actions, the
bar should not be set too high when it comes to approving a proper
representative."
AVX CORPORATION: Faces Suits Over Pollution in S.C. Property
------------------------------------------------------------
AVX Corporation accrued approximately $0.3 million with respect to
lawsuits relating to alleged pollution from a property adjacent to
the company's Myrtle Beach, South Carolina factory, AVX disclosed
in its May 22, 2013 Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended March 31, 2013.
There are two suits pending with respect to property adjacent to
the company's Myrtle Beach, South Carolina factory claiming
property values have been negatively impacted by alleged migration
of certain pollutants from the company's property. On November
27, 2007, a suit was filed in the South Carolina State Court by
certain individuals as a class action. Another suit is a
commercial suit filed on January 16, 2008 in South Carolina State
Court.
The company intends to defend vigorously the claims that have been
asserted in these two lawsuits. At this stage of the litigation,
there has not been a determination as to responsible parties or
the amount, if any, of damages. Based on the company's estimate of
potential outcomes, the company accrued approximately $0.3 million
with respect to these cases as of March 31, 2013.
BECK ENERGY: Ohio Appeals Court to Hear Class Suit Over Oil Leases
------------------------------------------------------------------
Jamison Cocklin, writing for The Vindicator's Vindy.com, reports
that the 7th District Court of Appeals in Youngstown, Ohio, is
expected soon to hear a class-action lawsuit that could affect
hundreds of property owners in Ohio angered by long-term oil and
gas leases that lock up their land.
For some time now, courts across the state have heard from
landowners who say restrictive oil and gas leases signed for as
little as $50 per acre before the Utica Shale boom have prevented
them from pitching their land to larger companies -- offering
leases for thousands of dollars per acre with a chance to earn
lucrative royalties if their mineral rights are put into
production.
But those cases have proceeded with little success. In most
instances, judges have upheld the contractual obligations of those
lease agreements and ruled in the companies' favor.
In 2011, though, a group of six landowners from Monroe County
filed a lawsuit against Ravenna-based Beck Energy Corp. They
allege the company used a blanket oil and gas lease drafted in
1983 that tied up their mineral rights where the company initially
planned to drill into the Clinton Sandstone formation -- but never
did -- leaving the land undeveloped.
Rick Zurz, of the Akron-based law firm Slater & Zurz, which
represents the landowners, said it was realized that hundreds of
other property owners were leased under the same standard lease
across 21,000 acres and the case was certified as a class action
suit. Just two months after the suit was filed, court documents
show that Beck Energy sold the deep mineral rights across some of
the 21,000 acres to XTO Energy, a subsidiary of the country's
largest publicly traded oil and gas company Exxon Mobil.
"The record makes clear that [Beck] sold the deep rights on a lot
of those leases for a lot of money," Zurz said. "We don't have the
figure. The company hasn't disclosed it, but it was likely in the
millions of dollars. The landowners got nothing. Beck kept it
all."
The case has dragged on for nearly two years. In 2012, a Monroe
County Common Pleas Court judge issued a summary judgment in favor
of the landowners, saying at the time that the leases "clearly,
unequivocally and seriously offend public policy." The court
voided the 21,000 acres of leasehold and said Beck breached the
contract by failing to develop the land in a timely manner.
XTO purchased the deep mineral rights knowing that litigation was
pending, and it included a provision in the sales agreement
requiring Beck to defend title to the leases.
Neither Beck nor its attorney, Scott Zurakowski, could be reached
to comment.
XTO, which filed a motion to intervene and become a party in the
case, was denied by the Monroe County court. It has since declined
to comment citing pending litigation.
Thomas Stewart, executive vice president of the Ohio Oil and Gas
Association, which has filed a friend of the court brief along
with 13 other industry-affiliated groups supporting Beck's
argument that the leases must be reinstated, said if the lower
court's decision is upheld on appeal in Youngstown, it could put
the state's oil and gas industry at a disadvantage and disrupt the
way it negotiates for property.
"You take a lease for a primary term. It's a contract between the
mineral owner and the producer," Stewart said. "Apparently, the
judge in Monroe County didn't like the way that contract was
negotiated. The primary term of the leases had not been reached
and the judge terminated it. You can't do that."
Stewart added that when the leases were negotiated for $50 per
acre, most of which were signed between 2001 and 2006, neither the
company nor the landowners could have predicted that demand for
leasehold across the Utica Shale play would drive the price for
acreage up by thousands of dollars, saying that's "the nature of
the marketplace."
Don Fischbach, chair of the energy group and an attorney at the
Cleveland-based law firm Calfee, Halter & Griswold, which is not
involved in the class-action lawsuit, said the finer points of oil
and gas leases that involve operating expenses, revenue allocation
during production, the length of leases and what it takes to
extend them will continue to be addressed in Ohio courts in the
coming years.
Compared to other producing states where shale gas drilling has
occurred for longer, Ohio has little case law to address such
issues, Fischbach said.
"If the circuit court issues an appellate decision, it has weight
in lower courts that address similar issues in the future," he
said.
"The higher you go up the appellate ladder, those decisions get
more obligatory on the lower court judges that have to apply
them."
* * *
Ohio.com's Bob Downing, citing The (Youngstown) Vindicator,
reports that Beck Energy Corp. may ask the 7th District Court of
Appeals in Youngstown to hear the class-action lawsuit.
BOEING INC: 83 Asiana Passengers File Class Suit Over July 6 Crash
------------------------------------------------------------------
The Week UK reports that a group of 83 passengers from the Asiana
Airlines flight that crashed at San Francisco airport have filed a
multi-million-dollar class action against the aircraft's
manufacturer, Boeing.
While a final determination of what caused the Boeing 777 to crash
on the runway on July 6 is probably years away, says NBC, there
has been speculation the incident may have been caused by the
plane's auto-throttle. Three Chinese students died as a result of
the incident and 182 people were injured.
The auto-throttle, which automatically controls the speed of an
airliner, is set by the pilots. As Asiana Flight 214 approached
San Francisco, its pilots have told crash investigators they
believed the Boeing's auto-throttle was set at 137 knots.
Instead, the plane's speed fell to 103 knots, putting it in danger
of stalling.
The National Transportation Safety Board has said its initial
examination of Flight 214's automated throttles showed "no
anomalous behavior". However, the NTSB has also said flight data
collected from the crashed plane indicates that its automated
systems recorded multiple unexplained "autopilot and auto-throttle
modes" as it made its approach to San Francisco.
The class action, filed in Chicago, where Boeing's corporate
headquarters are located, demands that the manufacturer turns over
all of the plane's design, manufacturing and maintenance records.
The case will be handled by Ribbeck Law Chartered, which
specializes in aviation cases.
Ribbeck says Boeing could also be at fault over some of the
aircraft's safety features. In a statement announcing the class
action, the law firm said sliding safety ramps were deployed
inside the aircraft, "further injuring passengers and blocking
their exit to safety".
The lawsuit also alleges there may have been problems with the
Boeing's seatbelts because police officers had to "pass knives to
crew members inside the burning wreckage" so they could cut
passengers free.
The class action will be "expanded" in coming days to include
Asiana Airlines and "several component manufacturers", Ribbeck
said.
Boeing has declined to comment on the issue, NBC reports.
CANADA: Ontario Court Certifies Sixties Scoop Class Action
----------------------------------------------------------
Turtle Island News Daily reports that Nishnawbe Aski Nation (NAN)
Deputy Grand Chief Goyce Kakegamic is thrilled with the ruling by
Ontario Superior Court of Justice E. Belobaba granting
certification of the landmark Sixties Scoop lawsuit on the loss of
cultural identity as a class action proceeding.
A press conference was held at 3:00 p.m. on July 17 in Toronto at
197 Church Street (north of Shuter Street).
"The path to litigation has been long and tiring but we are
overjoyed that the Government of Canada will finally be
accountable for this devastating legacy, which was nothing short
of cultural genocide," said NAN Deputy Grand Chief Goyce
Kakegamic, who holds the social services portfolio at NAN. "The
government claims that it was acting in the best interests of the
children, but the Sixties Scoop was a shameful continuation of the
assimilation polices of the Residential School system and had a
devastating effect on thousands of children who were raised far
away from home without any sense of their Aboriginal identity."
Between 1965 and 1985 an estimated 16,000 Aboriginal children in
Ontario, including members of NAN First Nations, were removed from
their homes and placed in other (mostly non-native) communities.
An entire generation lost its Aboriginal identity and culture.
Beaverhouse First Nation Chief Marcia Brown Martel and Robert
Commanda launched a lawsuit in 2009 against the Attorney General
of Canada under the Class Proceedings Act. The case was
conditionally certified in 2010 but was overturned by the Superior
Court of Justice in 2011.
"This is a great step forward on a long journey, a journey that
involves the entire nation of Canada," said Beaverhouse First
Nation Chief Marcia Brown Martel. "Because it involves the First
Nations people of Canada it is of great importance to all
Canadians that the
Government of Canada recognizes what it has done in history so now
we can step forward in a journey of healing together."
A website -- www.sixtiesscoopclaim.ca -- has been established to
help First Nations register and obtain more information on the
class action proceedings.
Nishnawbe Aski Nation is a political territorial organization
representing 49 First Nation communities in James Bay Treaty No. 9
and Ontario portions of Treaty No. 5 -- an area covering two
thirds of the province of Ontario in Canada.
CELLCOM ISRAEL: Subscribers' Class Action Dismissed With Prejudice
------------------------------------------------------------------
Cellcom Israel Ltd. on July 16 disclosed that a purported class
action filed against the Company in December 2010, regarding a
network malfunction that occurred on December 1, 2010, was
dismissed without prejudice, at the plaintiffs' request.
The purported class action was filed by plaintiffs claiming
compensation for damages (including mental anguish), in connection
with allegations that the Company misled its subscribers and
unlawfully and in violation of its license and agreements with its
subscribers, failed to provide service to its subscribers during
the malfunction. Had the lawsuit been certified as a class
action, the estimated claimed amount was approximately NIS350 per
customer in a private calling plan and NIS700 per customer in a
business calling plan and approximately NIS1.183 billion for
non-monetary damages as well as the relative portion of the
monthly payment relating to the hours of the malfunction.
DOLLAR TREE: Decertification of FSLA Violations Suit Under Appeal
-----------------------------------------------------------------
Plaintiffs in a suit alleging violations of Fair Labor Standards
Act by Dollar Tree, Inc. against former store managers are
appealing a decertification Order to the U.S. Court of Appeals for
the 11th Circuit, according to the company's May 23, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended May 4, 2013.
In 2006, a former store manager filed a collective action against
the Company in Alabama federal court claiming that she and other
store managers should have been classified as non-exempt employees
under the Fair Labor Standards Act and received overtime
compensation.
The Court preliminarily allowed nationwide (except California)
certification. The Company filed a motion to decertify on February
29, 2012 and that motion was granted on November 2, 2012. The
individual claims of the four named plaintiffs proceeded to trial
and on March 1, 2013, the jury returned verdicts in all four cases
in favor of the Company.
The individual claims of the remaining 261 opt-in plaintiffs were
dismissed without prejudice and approximately 61 of these
plaintiffs have filed individual suits in various federal courts
throughout the country. Plaintiffs have appealed the
decertification Order and the jury verdicts to the U.S. Court of
Appeals for the 11th Circuit.
DOLLAR TREE: Discovery Continues in Suit by Calif. Employee
-----------------------------------------------------------
Discovery is ongoing in a suit filed by a former assistant store
manager alleging a failure by Dollar Tree, Inc. to provide meal
breaks and adequate compensation, according to the company's May
23, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended May 4, 2013.
In April 2011, a former assistant store manager, on behalf of
himself and those similarly situated, instituted a class action in
a California state court primarily alleging a failure by the
Company to provide meal breaks, to compensate for all hours
worked, and to pay overtime compensation. The Company removed the
case to federal court which denied plaintiffs' motion for remand
of the case to state court. Discovery in this case is at an early
stage. No trial date has been set.
DOLLAR TREE: Still Facing FLSA Violations Suits in 5 States
-----------------------------------------------------------
In its May 23, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended May 4, 2013,
Dollar Tree, Inc. provided updates on five collective action
lawsuits filed against it in federal courts in Georgia, Colorado,
Florida, Michigan and Illinois by different assistant store
managers.
In the summer and fall of 2011, five collective action lawsuits
were filed against the Company in federal courts in Georgia,
Colorado, Florida, Michigan and Illinois by different assistant
store managers, each alleging he or she was forced to work off the
clock in violation of the federal Fair Labor Standards Act (FLSA).
Plaintiffs also assert various state law claims for which they
seek class treatment. The Michigan case is currently stayed. The
Florida case has been transferred to the U.S. District Court for
the Eastern District of Virginia and has been stayed. The Georgia
suit sought statewide class certification. Those state law claims
were ultimately dismissed prior to the case also being transferred
to the U.S. District Court for the Eastern District of Virginia.
The Colorado case is farthest along in terms of litigation.
Although the statewide class claims were dismissed, the Court did
conditionally certify under the FLSA a class of all assistant
store managers who worked for Dollar Tree from July 16, 2008 to
the present. Approximately 2,200 plaintiffs have opted-in to the
collective action and discovery is on-going. The trial is
scheduled to commence in March 2014.
The Illinois case, in addition to assistant store managers, also
included a putative class of all other hourly store associates and
made the same allegations on their behalf. The Illinois case was
transferred to the Eastern District of Virginia in June 2012 and
the Virginia federal judge ruled that all claims made on behalf of
assistant store managers under both the FLSA and state law should
be dismissed. The court, however, did conditionally certify under
the FLSA a class of all sales associates who worked for Dollar
Tree from October 2, 2009 to the present. Notice to the putative
class was issued and approximately 6,280 plaintiffs opted into the
case. Certification discovery is under way and no trial date has
been set.
DOLLAR TREE: Settles "Seating" Suit Filed by Former Associate
-------------------------------------------------------------
Dollar Tree Inc. reached a settlement in a suit filed by a former
non-exempt hourly associate who alleges the Company failed to
provide suitable seating as allegedly required by state law,
according to the company's May 23, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended May 4, 2013.
In July 2012, a former non-exempt hourly associate who alleges his
primary duty was to work the cash register, on behalf of himself
and those similarly aggrieved, filed a Complaint under the
California Private Attorneys General Act, in a California state
court, alleging the Company failed to provide suitable seating as
allegedly required by state law. The Company removed the case to
federal court and filed its Answer to the Complaint.
After discovery and the filing by the Company of its expert
witness report, the parties agreed to a settlement in the first
quarter of 2013 for an immaterial amount which has been accrued in
the accompanying condensed consolidated financial statements.
DOLLAR TREE: Suit Over Store Employees' Rest Breaks Remanded
------------------------------------------------------------
A suit alleging Dollar Tree, Inc. failed to provide paid, duty-
free 10 minute rest breaks to assistant store managers was
remanded to state court, according to the company's May 23, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended May 4, 2013.
In July 2012, a former assistant store manager, on behalf of
himself and those similarly situated, filed a class action
Complaint in a California state court, alleging the Company failed
to provide paid, duty-free 10 minute rest breaks to assistant
store managers who worked for periods in excess of three and one-
half hours.
The alleged relevant time period is July 13, 2008 to the present.
The Company removed the case to federal court, however, it was
remanded to state court when plaintiff indicated the damages
sought were less than $5.0 million, the jurisdictional amount
under the federal Class Action Fairness Act. No trial date has
been set.
DOLLAR TREE: Employee Misclassification Suit Now in Federal Court
-----------------------------------------------------------------
A suit filed by two former store managers of Dollar Tree, Inc.
alleging they were misclassified by the Company as exempt
employees was removed to federal court, according to the company's
May 23, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended May 4, 2013.
In August 2012, two former store managers, under California's
Private Attorney General Act, instituted suit in a California
state court, on behalf of themselves and others similarly
aggrieved in the state of California, alleging they were
misclassified by the Company as exempt employees. The Company
removed the case to federal court. Discovery has commenced; no
trial date has been set.
DOLLAR TREE: Labor Suit by Store Employee Moved to Federal Court
----------------------------------------------------------------
Dollar Tree, Inc. removed a case filed by a former assistant store
manager from a California state court to federal court according
to the company's May 23, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
May 4, 2013.
In February 2013, a former assistant store manager on behalf of
himself and those similarly aggrieved filed a representative claim
under California's Private Attorney General Act, alleging the
Company failed to provide meal and rest periods; failed to pay
minimum, regular and overtime wages; failed to maintain accurate
time records and wage statements; and failed to pay wages due upon
termination of employment. The Company removed the case from a
California state court to federal court. Discovery will commence
in the near future. No trial date has been set.
EAGLE MATERIALS: Drywall Price Fixing Suit Consolidated in Penn.
----------------------------------------------------------------
The Judicial Panel on Multidistrict Litigation transferred and
consolidated in the Eastern District of Pennsylvania cases
alleging Eagle Materials Inc.'s subsidiary, American Gypsum
Company LLC ("American Gypsum"), conspired with other wallboard
manufacturers to fix the price for drywall, according to the
parent company's May 24, 2013, Form 10-K filing with the U.S.
Securities and Exchange commission for the fiscal year ended March
31, 2013.
Since late December 2012, several purported class action lawsuits
have been filed against the Company's subsidiary, American Gypsum
Company LLC ("American Gypsum"), alleging that American Gypsum
conspired with other wallboard manufacturers to fix the price for
drywall sold in the United States in violation of federal
antitrust laws and, in some cases related provisions of state law.
The complaints allege that the defendant wallboard manufacturers
conspired to increase prices through the announcement and
implementation of coordinated price increases, output
restrictions, and other restraints of trade, including the
elimination of individual "job quote" pricing. In addition to
American Gypsum, the defendants in these lawsuits include
CertainTeed Corp., USG Corporation, New NGC, Inc., Lafarge North
America, Georgia-Pacific LLC, Temple Inland Inc. and PABCO
Building Products LLC.
The plaintiffs in these class action lawsuits bring claims on
behalf of purported classes of direct or indirect purchasers of
wallboard during various periods from 2008 to present for
unspecified monetary damage (including treble damages) and in some
cases injunctive relief in various United States district courts,
including the Eastern District of Pennsylvania, Western District
of North Carolina, North Carolina and the Northern District of
Illinois.
On April 8, 2013, the Judicial Panel on Multidistrict Litigation
transferred and consolidated all related cases to the Eastern
District of Pennsylvania for coordinated pretrial proceedings.
Limited written discovery has taken place to date. Due to the
recent nature of these claims, the company is unable to assess the
likelihood or amount of potential loss relating to the claims, or
whether such losses, if any, would have a material impact on the
company's financial position, results of operations or cash flows.
American Gypsum denies the allegations in these lawsuits and will
vigorously defend itself against these claims.
ELECTRONIC ARTS: Awaits Final OK of Antitrust Suit in Calif.
------------------------------------------------------------
Electronic Arts Inc. is awaiting final approval of the settlement
it reached in an antitrust class action in relation to "league-
branded football simulation video games," according to the
company's May 22, 2013 Form 10-K filing with the U.S. Securities
and Exchange Commission for the fiscal year ended March 31, 2013.
In June 2008, Geoffrey Pecover filed an antitrust class action in
the United States District Court for the Northern District of
California, alleging that EA obtained an illegal monopoly in a
discreet antitrust market that consists of "league-branded
football simulation video games" by bidding for, and winning,
exclusive licenses with the NFL, Collegiate Licensing Company and
Arena Football League.
In December 2010, the district court granted the plaintiffs'
request to certify a class of plaintiffs consisting of all
consumers who purchased EA's Madden NFL, NCAA Football or Arena
Football video games after 2005. In May 2012, the parties reached
a settlement in principle to resolve all claims related to this
action. As a result, the company recognized a $27 million accrual
for the fourth quarter of fiscal 2012 associated with the
potential settlement.
In July 2012, the plaintiffs filed a motion with the court to
approve the settlement. On October 5, 2012, the court granted its
preliminary approval of the settlement and held a hearing to
consider the court's final approval of the settlement for February
7, 2013. As of the date of this filing, the Court has not issued
an order granting its final approval of the settlement, although
the Company expects that the Court will do so.
FORD MOTOR: Faces Class Action Over MyFord Touch Defects
--------------------------------------------------------
Grant & Eisenhofer P.A. on July 16 disclosed that a federal class
action has been filed against Ford Motor Co. in connection with
alleged defects in the MyFord Touch dashboard infotainment systems
that are found in Ford, Lincoln and Mercury vehicles.
The action was filed in U.S. District Court for the Central
District of California by leading consumer class action law firm
of Grant & Eisenhofer P.A., and other firms.
The suit, brought by the Center for Defensive Driving, a nonprofit
educator based in Torrance, Calif., seeks compensatory relief on
behalf of a proposed class of purchasers and lessees of Ford
vehicles equipped with MyFord Touch systems, excluding those who
have personal injury claims resulting from the defect in the
systems. Introduced to Ford vehicles in 2010, the MyFord Touch
(called "MyLincoln Touch," or "MyMercury Touch" in Lincoln and
Mercury cars) is Ford's LCD dashboard interface which allows the
vehicle owner to operate the vehicle's audio systems, GPS
navigation, climate systems, as well as a Bluetooth enabled mobile
device. The MyFord Touch also allows operation of certain safety
systems in the vehicle, such as collision detection that
subsequently dials 9-1-1 to connect the vehicle to an emergency
services provider.
The Center for Defensive Driving contends that it leased a 2013
Ford F-150 Lariat equipped with a MyFord Touch system, which
suffered from numerous problems, including: System lockup and
total system failure; periodic non-responsiveness to peripheral
devices (such as MP3 players and smartphones); and periodic non-
responsiveness to voice commands. The plaintiff alleges that
between Feb. 22 and July 1 of this year, the F-150's MyFord Touch
unit has failed or locked up on no fewer than 27 separate
occasions.
The plaintiff's complaint alleges that Ford vehicles equipped with
the systems have been plagued with serious defects, and many of
the features advertised as part of the system often fail to
perform. One example recounted in the complaint is the MyFord
Touch screen will simply turn off while using certain features,
such as the GPS navigation technology, then turn back on, and when
it does, it states that it is "performing scheduled system
maintenance"; however, it is not performing maintenance, but
simply malfunctioning. The complaint also points out that certain
crucial vehicle functions, including the defroster and the rear-
view camera are routed through and controlled by MyFord Touch, and
become inoperable when the system crashes, creating dangerous
situations and possible collisions.
The suit contends that the plaintiff's experiences are by no means
isolated -- and that the internet is replete with examples of
blogs and other websites where consumers have complained of the
same defect within their Ford vehicles. The complaint details
similar complaints by consumers posted on a database maintained by
the National Highway Traffic Safety Administration. It also
points to a website, titled "syncsucks.com," which lists the "most
common Sync/MyFord Touch issues." In addition to the screen and
the back-up camera black outs, the site notes instances where
music randomly starts playing while using the phone, repeated
disconnection of the USB iPod, and repeated failure to recognize
Sirius satellite radio subscription. Further chronicling of
MyFord Touch problems can be seen on a site called
http://fordsyncproblems.com/,created by a consumer in response to
"Ford's inability to resolve issues with my newly purchased 2012
Ford Escape" as well as several other websites.
The complaint notes that Ford's problems with the MyFord Touch
system has led to its loss of standing with consumer reporting
organizations. J.D. Power & Associates "Initial Quality Study,"
which examines vehicles during the first 90 days of ownership,
ranked Ford fifth place in 2010, the last year before rolling out
the MyFord Touch system. In 2011, after the rollout, Ford
plummeted to 23rd place in the same survey -- and the primary
driver in Ford's descent, according to a J.D. Power & Associates
executive, was the MyFord Touch system. Consumer Reports also
recommended that no consumer purchase Ford vehicles that are
equipped with MyFord Touch.
The Center for Defensive Driving, individually and on behalf of
all other class members, seeks compensatory damages for defective
systems. Plaintiff also seeks injunctive relief, requesting that
Ford institute a recall or free replacement program.
Adam Levitt -- alevitt@gelaw.com -- a Grant & Eisenhofer director
and head of the firm's Consumer Practice group, said: "The MyFord
Touch problems in Ford vehicles are legion and now well-
documented. Had consumers known about the numerous and widespread
issues with the system in Ford's cars, they would not have
purchased or leased these vehicles. We intend to see that they are
properly compensated for defective systems, and will call on Ford
take affirmative steps to see that customers' expectations are
met."
Grant & Eisenhofer has led some of the largest investor recoveries
on record in securities class actions, including serving as co-
lead counsel to investors in a class action against Tyco
International. Mr. Levitt, who launched the opening of the firm's
Chicago office in January, has served as co-lead counsel in some
of the largest class actions in recent years, including securing
more than $1 billion in damages for plaintiffs in two of the
largest agri/biotech cases in U.S. history. He currently
represents car buyers from over a dozen states in a product
liability class action against Ford involving sudden unintended
acceleration claims (Belville, et al. v. Ford Motor Company), as
well as other pending automotive cases against Porsche and BMW.
Those seeking additional details or desiring a copy of the new
complaint may call the toll-free number: 866-365-8533.
The case is styled as: The Center for Defensive Driving v. Ford
Motor Company, Case No. CV13-5068 (U.S. District Court, Central
District of California). Co-counsel to plaintiffs are the law
firms of Hagens Berman Sobol Shapiro LLP and Isaac, Wiles,
Burkholder & Teetor LLC.
Grant & Eisenhofer P.A. -- http://www.gelaw.com-- represents
institutional investors and shareholders internationally in
securities class actions, corporate governance actions and
derivative litigation.
FORD MOTOR: Hagens Berman Files Class Action Over MyFord Touch
--------------------------------------------------------------
Hagens Berman on July 15 filed a proposed class-action lawsuit
alleging that Ford Motor Company's MyFord Touch, MyLincoln Touch
and MyMercury Touch touchscreen systems are defective, often
freezing, failing to respond to voice and touch commands and
failing to connect to mobile phones.
The 41-page complaint, filed in the U.S. District Court for
Central California, includes a long litany of problems with the
system, and details Ford's failed attempts at correcting the
system through system updates and other fixes.
Owners of Ford, Lincoln or Mercury vehicles with the MyFord Touch,
MyLincoln Touch or MyMercury Touch systems can contact a Hagens
Berman attorney to discuss the case by calling (206) 623-7292 or
by e-mailing MyFordTouch@hbsslaw.com
The systems, introduced by Ford in 2011, promised owners of Ford,
Lincoln and Mercury vehicles with the ability to seamlessly
operate audio controls, use a GPS navigation system, control
climate systems and operate a Bluetooth-enabled device through the
system.
"In theory, MyFord Touch is a brilliant idea and worth the premium
that Ford charged its customers for the system," said Steve Berman
-- steve@hbsslaw.com -- managing partner of Hagens Berman and one
of the attorneys who filed the lawsuit. "In reality, the system
is fundamentally flawed, failing to reliably provide
functionality, amounting to an inconvenience at best, and a
serious safety issue at worst."
According to the suit, the system fails even while controlling
crucial vehicle functions, such as the defroster and rear-view
camera, which are controlled through the system, putting drivers
and passengers at risk.
The complaint also calls out consumer complaints involving the
vehicles' GPS navigation system. According to the complaint, the
touchscreen will turn off, turn back on with a message saying it
is "performing scheduled maintenance" leaving the driver without
any directional guidance.
The lawsuit claims that Ford has demonstrated it is aware of the
problem, having issued several technical service bulletins and
software updates. In addition, the complaint documents a number
of consumer complaints in the National Highway Traffic Safety
Administration's database, all detailing issues with the
touchscreen system.
The lawsuit seeks to represent a class of individuals who are
current or former owners of vehicles with the systems installed.
It seeks compensation for members of the proposed class for
violations of consumer protection laws and breach of express and
implied warranties.
FOREST LABORATORIES: Still Faces Antitrust MDL in Illinois
----------------------------------------------------------
A lawsuit alleging certain violations of the federal anti-trust
laws by Forest Laboratories, Inc. is continuing with appeals
regarding the decisions of the district court to grant defendants'
motion for summary judgment, according to the company's May 23,
2013, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended March 31, 2013.
Forest Laboratories, Inc. remains a defendant in actions filed in
various federal district courts alleging certain violations of the
federal anti-trust laws in the marketing of pharmaceutical
products. In each case, the actions were filed against many
pharmaceutical manufacturers and suppliers and allege price
discrimination and conspiracy to fix prices in the sale of
pharmaceutical products.
The actions were brought by various pharmacies (both individually
and, with respect to certain claims, as a class action) and seek
injunctive relief and monetary damages. The Judicial Panel on
Multidistrict Litigation (MDL) ordered these actions coordinated
(and, with respect to those actions brought as class actions,
consolidated) in the Federal District Court for the Northern
District of Illinois (Chicago) under the caption "In re Brand Name
Prescription Drugs Antitrust Litigation."
On November 30, 1998, the defendants remaining in the consolidated
federal class action (which proceeded to trial beginning in
September 1998), including Forest, were granted a directed verdict
by the trial court after the plaintiffs had concluded their case.
In ruling in favor of the defendants, the trial judge held that no
reasonable jury could reach a verdict in favor of the plaintiffs
and stated "the evidence of conspiracy is meager, and the evidence
as to individual defendants paltry or non-existent." The Court of
Appeals for the Seventh Circuit subsequently affirmed the granting
of the directed verdict in the federal class case in the company's
favor.
Following the Seventh Circuit's affirmation of the directed
verdict in the company's favor, the company secured the voluntary
dismissal of the conspiracy allegations contained in all of the
federal cases brought by individual plaintiffs who elected to
"opt-out" of the federal class action, which cases were included
in the coordinated proceedings, as well as the dismissal of
similar conspiracy and price discrimination claims pending in
various state courts. The company remains a defendant, together
with other manufacturers, in many of the federal opt-out cases
included in the coordinated proceedings to the extent of claims
alleging price discrimination in violation of the Robinson-Patman
Act.
While no discovery or other significant proceedings with respect
to the company have been taken to date in respect of such claims,
there can be no assurance that the company will not be required to
actively defend such claims or to pay substantial amounts to
dispose of such claims. However, by way of a decision dated
January 25, 2007, the judge handling the Robinson-Patman Act cases
for certain of a smaller group of designated defendants whose
claims are being litigated on a test basis, granted summary
judgment to those designated defendants against a group of
designated plaintiffs due to those plaintiffs' failure to
demonstrate any antitrust injury. Subsequently, the Court also
granted the designated defendants' motion for summary judgment
with respect to the designated plaintiffs' effort to obtain
injunctive relief.
The litigation is continuing with appeals regarding the decisions
of the district court. At this time, the Company believes an
unfavorable outcome is less than probable and is unable to
estimate the reasonably possible loss or range of possible loss,
but does not believe losses, if any, would have a material effect
on the results of operations or financial position taken as a
whole.
FOREST LABORATORIES: Plaintiffs Amend Suit Over Celexa, Lexepro
---------------------------------------------------------------
Plaintiffs in "In re Celexa and Lexapro Marketing and Sales
Practices Litigation" filed amended complaints seeking to certify
state-wide class actions in Illinois, Missouri, and New York under
those states' consumer protection statues, according to Forest
Laboratories, Inc.'s May 23, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended March
31, 2013.
FLI and Forest Pharmaceuticals, Inc. are defendants in three
federal actions filed on behalf of individuals who purchased
Celexa or Lexapro for pediatric use, all of which have been
consolidated for pretrial purposes in a multi-district litigation
(MDL) proceeding in the U.S. District Court for the District of
Massachusetts under the caption "In re Celexa and Lexapro
Marketing and Sales Practices Litigation."
These actions, two of which were originally filed as purported
nationwide class actions, and one of which is a purported
California-wide class action, allege that FLI and FPI marketed
Celexa and/or Lexapro for off-label pediatric use and paid illegal
kickbacks to physicians to induce prescriptions of Celexa and
Lexapro.
The complaints assert various similar claims, including claims
under the Missouri consumer protection statute and state common
laws. On February 5, 2013, the district judge overseeing the MDL
denied all plaintiffs' motions for class certification. On
February 18, 2013, the plaintiff in the California action filed a
petition seeking leave to appeal this decision to the U.S. Court
of Appeals for the First Circuit. On April 16, 2013, the First
Circuit denied the petition. On April 30, 2013, plaintiffs in the
other two actions filed amended complaints seeking to certify
state-wide class actions in Illinois, Missouri, and New York under
those states' consumer protection statues. Plaintiffs' motions
for class certification related to these amended complaints are
due June 28, 2013.
FOREST LABORATORIES: Sued in Calif. Over Lexapro Advertising
------------------------------------------------------------
On May 3, 2013, an action was filed in the U.S. District Court for
the Central District of California seeking to certify a state-wide
class action in California and alleging that Forest Laboratories,
Inc. and Forest Pharmaceuticals, Inc.'s promotion of Lexapro for
adolescent depression was deceptive, according to the company's
May 23, 2013, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended March 31, 2013.
FLI and FPI intend to continue to vigorously defend against these
cases. At this time, the Company believes an unfavorable outcome
is less than probable and is unable to estimate the reasonably
possible loss or range of possible loss, but does not believe
losses, if any, would have a material effect on the results of
operations or financial position taken as a whole.
FOREST LABORATORIES: Discovery Ongoing in Suit Over Celexa
----------------------------------------------------------
Discovery is currently ongoing in a suit filed against Forest
Pharmaceuticals, Inc. on behalf of Missouri citizens who purchased
Celexa for pediatric use, according to Forest Laboratories Inc.'s
May 23, 2013, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended March 31, 2013.
FLI and/or FPI are also named as defendants in two similar actions
filed on behalf of entities or individuals who purchased or
reimbursed certain purchases of Celexa or Lexapro pending in the
Missouri Circuit Court, Twenty-Second Judicial Circuit, arising
from nearly identical allegations as those contained in the
federal actions described in the immediately preceding paragraph.
The first action, filed on July 22, 2009 under the caption
"Crawford v. Forest Pharmaceuticals, Inc.," and now known as
"Luster v. Forest Pharmaceuticals, Inc.," is a putative class
action on behalf of a class of Missouri citizens who purchased
Celexa for pediatric use. Only FPI, which is headquartered in
Missouri, is named as a defendant.
The complaint asserts claims under the Missouri consumer
protection statute and Missouri common law, and seeks unspecified
damages and attorneys' fees. In October 2010, the court certified
a class of Missouri domiciliary citizens who purchased Celexa for
pediatric use at any time prior to the date of the class
certification order, but who do not have a claim for personal
injury. Discovery is currently ongoing.
The second action, filed on November 6, 2009 under the caption
"St. Louis Labor Healthcare Network et al. v. Forest
Pharmaceuticals, Inc. and Forest Laboratories, Inc.," is brought
by two entities that purchased or reimbursed certain purchases of
Celexa or Lexapro.
The complaint asserts claims under the Missouri consumer
protection statute and Missouri common law, and seeks unspecified
damages and attorneys' fees. FLI and FPI intend to continue to
vigorously defend against both of these actions. At this time,
the Company believes an unfavorable outcome is less than probable
and is unable to estimate the reasonably possible loss or range of
possible loss, but does not believe losses, if any, would have a
material effect on the results of operations or financial position
taken as a whole.
FOREST LABORATORIES: Moves to Dismiss Claims in "Barrett" Suit
--------------------------------------------------------------
Forest Laboratories Inc. filed a motion to dismiss certain claims
in "Megan Barrett et al. v. Forest Laboratories Inc. and Forest
Pharmaceuticals, Inc." pending in the U.S. District Court for the
Southern District of New York, according to the company's May 23,
2013, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended March 31, 2013.
In July 2012, the Company was named as a defendant (along with
FPI) in an action brought by Megan Barrett, Lindsey Houser,
Jennifer Jones, and Jennifer Seard, former Company Sales
Representatives, in the U.S. District Court for the Southern
District of New York under the caption "Megan Barrett et al. v.
Forest Laboratories Inc. and Forest Pharmaceuticals, Inc."
In November 2012, Plaintiffs amended the complaint, adding six
additional plaintiffs: Kimberly Clinton, Erin Eckenrode, Julie
Smyth, Marie Avila, Andrea Harley, and Christy Lowder, all of whom
alleged that they are current or former Company Sales
Representatives or Specialty Sales Representatives.
In March 2013, Plaintiffs filed a second amended complaint, adding
one additional plaintiff: Tracy Le, a current Company Sales
Representative. The action is a putative class and collective
action, and the second amended complaint alleges class claims
under Title VII for gender discrimination with respect to pay and
promotions, as well as discrimination on the basis of pregnancy,
and a collective action claim under the Equal Pay Act.
The proposed Title VII gender class includes all current and
former female Sales Representatives (defined to include Territory
Sales Representatives, Field Sales Representatives, Medical Sales
Representatives, Professional Sales Representatives, Specialty
Sales Representatives, Field Sales Trainers, and Regional Sales
Trainers) employed by the Company throughout the U.S. from 2008 to
the date of judgment, and the proposed Title VII pregnancy sub-
class includes all current and former female Sales Representatives
who have been, are, or will become pregnant while employed by the
Company throughout the U.S. from 2008 to the date of judgment.
The proposed Equal Pay Act collective action class includes
current, former, and future female Sales Representatives who were
not compensated equally to similarly-situated male employees
during the applicable liability period. The second amended
complaint also includes non-class claims on behalf of certain of
the named Plaintiffs for sexual harassment and retaliation under
Title VII, and for violations of the Family and Medical Leave Act.
The Company filed a motion to dismiss certain claims on April 29,
2013. The Company believes there is no merit to Plaintiffs'
claims and intends to vigorously defend this lawsuit.
At this time, the Company believes an unfavorable outcome is less
than probable and is unable to estimate the reasonably possible
loss or range of possible loss, but does not believe losses, if
any, would have a material effect on the results of operations or
financial position taken as a whole.
GOLD RESOURCE: Colo. Court Grants Motion to Dismiss Class Action
----------------------------------------------------------------
Gold Resource Corporation on July 16 disclosed that the U.S.
District Court for the District of Colorado granted with prejudice
the Company's motion to dismiss the class action lawsuit filed by
Nitesh Banker.
About GRC
Gold Resource Corporation -- http://www.Goldresourcecorp.com-- is
a mining company focused on production and pursuing development of
gold and silver projects that feature low operating costs and
produce high returns on capital. The Company has 100% interest in
six potential high-grade gold and silver properties in Mexico's
southern state of Oaxaca.
ING US: Sued by 401(k) Plan Sponsors Over Alleged ERISA Breach
--------------------------------------------------------------
ING U.S., Inc., faces a lawsuit alleging the company improperly
entered into revenue sharing agreements with mutual funds,
according to the company's May 20, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 31, 2013.
Litigation against the Company includes a case styled Healthcare
Strategies, Inc., Plan Administrator of the Healthcare Strategies
Inc. 401(k) Plan v. ING Life Insurance and Annuity Company
(U.S.D.C. D. CT, filed February 22, 2011), in which sponsors of
401(k) plans governed by the Employee Retirement Income Security
Act ("ERISA") claim that ILIAC has entered into revenue sharing
agreements with mutual funds and others in violation of the
prohibited transaction rules of ERISA.
Among other things, the plaintiffs seek disgorgement of all
revenue sharing payments and profits earned in connection with
such payments, an injunction barring the practice of revenue
sharing, and attorney fees. On September 26, 2012, the district
court certified the case as a class action in which the named
plaintiffs represent approximately 15,000 similarly situated plan
sponsors. ILIAC denies the allegations and is vigorously defending
this litigation.
IPARTY CORP: Settles "Halstead" Suit Over Merger With Party City
----------------------------------------------------------------
iParty Corp. reached an agreement to settle a suit over its merger
with Party City Holdings Inc., according to iParty's
May 23, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 30, 2013.
On March 8, 2013, a putative shareholder class action lawsuit was
filed against the Company, members of the Company's Board of
Directors, Party City and Merger Sub in the Massachusetts Superior
Court (Suffolk County) (Vincent Sean Halstead, individually and on
behalf of all other similarly situated vs. iParty Corp. et al,
B.L.S. 13-0842) (the "Halstead Complaint"), which complaint was
amended on April 10, 2013.
The action alleges that the members of the Company's Board of
Directors violated their fiduciary duties by failing to maximize
shareholder value when negotiating and entering into the Merger
Agreement and filing a materially false and misleading proxy
statement. The complaint alleges that Party City and Merger Sub
aided and abetted those purported violations of fiduciary duties.
On May 1, 2013, the Company, Party City, Merger Sub, and plaintiff
in the Halstead Complaint reached an agreement-in-principle
providing for the settlement of the outstanding litigation on the
terms and conditions set forth in a memorandum of understanding
(the "MOU").
Pursuant to the terms of the MOU, without agreeing that any of the
claims in the Halstead Complaint have merit or that any
supplemental disclosure was required under any applicable statute,
rule, regulation or law, the Company agreed to make certain
supplemental and amended disclosures in connection with its
definitive proxy statement filed with the Commission on April 10,
2013.
The MOU further provides that, among other things, (a) the parties
to the MOU will enter into a definitive settlement agreement (the
"Agreement") and will submit the Agreement to the Suffolk County
Superior Court (the "Court") for review and approval; (b) the
Agreement will provide for dismissal of the Halstead Complaint
with prejudice; (c) the Agreement will include a general release
of defendants of claims relating to the transaction; and (d) the
proposed settlement is conditioned on final approval by the Court.
There can be no assurance that the settlement will be finalized or
that the Court will approve the settlement.
LOUISIANA: Education Dep't Sued Over State Funding Formula
----------------------------------------------------------
Leslie Gamboni, writing for Louisiana Record, reports that a $200
million class action lawsuit has been filed against the Louisiana
Department of Education following a Louisiana Supreme Court ruling
that found the state's funding formula to be unconstitutional.
The St. John the Baptist Parish School District and the Louisiana
Association of Educators, a statewide teachers union, filed the
suit in the 19th Judicial District Court in Baton Rouge on
June 28.
The issue arose after Act 2 was found unconstitutional earlier
this year. Act 2 was a central part of Gov. Bobby Jindal's
education reform program that passed in 2012 and detailed a
funding policy for public schools by the state through a voucher
program.
On May 7, in Louisiana Federation of Teachers et al vs. The State
of Louisiana, the Louisiana Supreme Court not only ruled that Act
2 was unconstitutional, but that the last time a constitutional
funding formula was passed was in 2009.
Michael Walker-Jones, executive director of the Louisiana
Association of Educators, said that Act 2 was unconstitutional on
two grounds.
"Firstly, in the use of minimum foundation money for vouchers and
the process by which they passed the resolution," he said.
Brian Blackwell and Charles Patin, lead attorneys on the class
action lawsuit, explained that they calculated $200 million figure
by going back to the last constitutional funding formula that was
put in place in 2010. The formula that year dictated a 2.75%
annual increase for schools. Messrs. Blackwell and Patin applied
that percentage to each of the three years of funding which added
up to nearly $200 million.
According to Blackwell, the case has been filed on behalf of lead
plaintiff St. John the Baptist School Board, but other school
boards in the state, local education groups and individuals are
expected to join the class.
Russ Wise, a St. John the Baptist Parish school board member, said
the next step is to recover the money, which the school boards
claim was wrongly taken away from public schools in the past
years.
"Representatives for the St. John the Baptist School Board and the
teachers union are trying to recover the 2.75% increases that was
supposed to happen each year but didn't," Mr. Wise said.
The case is scheduled for hearing Aug. 6.
LOUISIANA-PACIFIC CORP: Court Reinstates Trimboard Class Action
---------------------------------------------------------------
HarrisMartin Publishing reports that a federal appeals court has
reinstated certain claims asserted in an Ohio class action against
the manufacturer of an alternative wood trim product that
allegedly failed before the expiration of the product's 10-year
warranty.
In a July 12 decision vacating a lower court's dismissal of
express warranty claims, the 6th Circuit U.S. Court of Appeals
held that a promise of future performance that manufacturer
Louisiana-Pacific Corp. made in its warranty for Trimboard renders
Ohio's statute of limitations inapplicable to the class action
claims.
The case was filed in 2012 by Jason Holbrook and similarly
situated, putative class members.
MCKESSON CORP: Milford to Get $72,000 in Class Action Payout
------------------------------------------------------------
New Haven Register reports that the city of Milford, Conn., will
get an over $72,000 payout from a class action lawsuit brought
against a state-based prescription drug wholesaler.
Mayor Ben Blake announced in a press release on July 16 that city
attorney's office had negotiated the award in the suit against the
McKesson Corporation.
The Rocky Hill-based corporation conspired with First Databank, a
publisher of pharmaceutical industry news, to inflate drug prices,
Blake's press release says. The conspiracy affected a number of
local governments.
According to an informational website set up to handle the
lawsuit:
"The lawsuit claims that two defendants, McKesson Corporation, a
large drug wholesaler, and First DataBank, a publisher of drug
data, wrongfully inflated the mark-up factor used by [First
Databank] to determine the average wholesale price for certain
prescription drugs. The lawsuit claims that, as a result, many
drug purchasers overpaid for these drugs. Both FDB and McKesson
deny any wrongdoing.
McKeeson did not immediately return a call seeking comment on the
settlement.
The press release said that the award would go into the city's
health insurance fund.
MICHAELS STORES: Wins OK of Accord in Suit by Former Employees
--------------------------------------------------------------
The U.S. District Court for the Northern District of California
granted final approval to a settlement of a suit filed by current
and former hourly retail employees of Michaels Stores, Inc. in
California, according to the company's May 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 4, 2013.
On July 11, 2011, the Company was served with a lawsuit filed in
the California Superior Court in and for the County of San Mateo
by Anita Ragano, as a purported class action proceeding on behalf
of herself and all current and former hourly retail employees
employed by Michaels stores in California.
The company removed the matter to the U.S. District Court for the
Northern District of California on August 9, 2011. The complaint
was subsequently amended to add an additional named plaintiff,
Terri McDonald. The lawsuit alleges that Michaels stores failed to
pay all wages and overtime, failed to provide its hourly employees
with adequate meal and rest breaks (or compensation in lieu
thereof), failed to timely pay final wages, unlawfully withheld
wages and failed to provide accurate wage statements and further
alleges that the foregoing conduct was in breach of various laws,
including California's unfair competition law.
The plaintiffs sought injunctive relief, compensatory damages,
meal and rest break penalties, waiting time penalties, interest,
and attorneys' fees and costs. On August 10, 2012, the company
reached a class-wide settlement with plaintiffs and the Court
granted final approval on April 22, 2013. The settlement will not
have a material effect on the company's consolidated financial
statements.
MICHAELS STORES: "Carson" Suit Remanded to San Diego Super. Court
-----------------------------------------------------------------
The case filed by a consumer, Linda Carson, against Michaels
Stores, Inc. is currently back to the San Diego Superior Court
after an appeals court remanded the case, the company disclosed in
its May 24, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 4, 2013.
On August 15, 2008, Linda Carson, a consumer, filed a purported
class action proceeding against Michaels Stores, Inc. in the
Superior Court of California, County of San Diego ("San Diego
Superior Court"), on behalf of herself and all similarly-situated
California consumers.
The Carson lawsuit alleges that Michaels unlawfully requested and
recorded personally identifiable information (i.e., her zip code)
as part of a credit card transaction. The plaintiff sought
statutory penalties, costs, interest, and attorneys' fees.
The company contested certification of this claim as a class
action and filed a motion to dismiss the claim. On March 9, 2009,
the Court dismissed the case with prejudice. The plaintiff
appealed this decision to the California Court of Appeals for the
Fourth District, San Diego. On July 22, 2010, the Court of Appeals
upheld the dismissal of the case. The plaintiff appealed this
decision to the Supreme Court of California ("California Supreme
Court").
On September 29, 2010, the California Supreme Court granted the
plaintiff's petition for review; however, it stayed any further
proceedings in the case until another similar zip code case
pending before the court, Pineda v. Williams-Sonoma, was decided.
On February 10, 2011, the California Supreme Court ruled, in the
Williams-Sonoma case, that zip codes are personally identifiable
information and therefore the Song-Beverly Credit Card Act of
1971, as amended ("Song Act"), prohibits businesses from
requesting or requiring zip codes in connection with a credit card
transaction. On or about April 6, 2011, the Supreme Court
transferred the Carson case back to the Court of Appeals with
directions to the Court to reconsider its decision in light of the
Pineda decision. Upon reconsideration, the Court of Appeals
remanded the case back to the San Diego Superior Court on May 31,
2011.
Additionally, since the California Supreme Court decision on
February 10, 2011, three additional purported class action
lawsuits alleging violations of the Song Act have been filed
against the Company: Carolyn Austin v. Michaels Stores, Inc. and
Tiffany Heon v. Michaels Stores, Inc., both in the San Diego
Superior Court and Sandra A. Rubinstein v. Michaels Stores, Inc.
in the Superior Court of California, County of Los Angeles,
Central Division. The Rubinstein case was transferred to the San
Diego Superior Court. An order coordinating the cases has been
entered and plaintiffs filed a Consolidated Complaint on April 24,
2012. Plaintiffs seek damages, civil penalties, common settlement
fund recovery, attorney fees, costs of suit and prejudgment
interest. The parties mediated the matter in March and a
tentative settlement has been reached for an amount that will not
have a material effect on the company's consolidated financial
statements.
MICHAELS STORES: "Tyler" Zip Code Lawsuit Remanded to Mass. Court
-----------------------------------------------------------------
The Massachusetts Supreme Judicial Court remanded the suit Melissa
Tyler v. Michaels Stores, Inc. to the U.S. District Court-District
of Massachusetts, according to the company's May 24, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended March 4, 2013.
Relying in part on the California Supreme Court decision, an
additional purported class action lawsuit was filed on May 20,
2011 against the Company: Melissa Tyler v. Michaels Stores, Inc.
in the U.S. District Court-District of Massachusetts, alleging
violation of a Massachusetts statute regarding the collection of
personally identification information in connection with a credit
card transaction.
On March 11, 2013, the Massachusetts Supreme Judicial Court ruled
on certified questions on the interpretation of the statute and
remanded the case to the U.S. District Court for further
proceedings. Following the Judicial Court's decision, an
additional purported class action lawsuit asserting the same
allegations in Tyler was filed in the U.S. District Court-District
of Massachusetts by Susan D'Esposito, and the two cases have been
consolidated. The company believes it has meritorious defenses to
the claims and the company is unable, at this time, to estimate a
range of loss, if any.
MICHAELS STORES: Faces Suit Over Framing Products Discount
----------------------------------------------------------
Michaels Stores, Inc. continues to face a suit filed by Ohio
consumers who purchased framing products and/or services at a
certain advertising period, according to the company's May 24,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 4, 2013.
On April 30, 2012, William J. Henry, a consumer, filed a purported
class action proceeding against Michaels Stores, Inc. in the Court
of Common Pleas, Lake County, Ohio, on behalf of himself and all
similarly-situated Ohio consumers who purchased framing products
and/or services from Michaels during weeks where Michaels was
advertising a discount for framing products and/or services.
The lawsuit alleges that Michaels advertised discounts on its
framing products and/or services without actually providing a
discount to its customers. The plaintiff is claiming violation of
Ohio law ORC 1345.01 et seq., unjust enrichment and fraud. The
plaintiff has alleged damages, penalties and fees not to exceed $5
million, exclusive of interest and costs. The company believes it
has meritorious defenses and intends to defend the lawsuit
vigorously. The company does not believe the resolution of this
lawsuit will have a material effect on the company's consolidated
financial statements.
MICHAELS STORES: Accord in Suit Over Card Terminals Approved
------------------------------------------------------------
The U.S. District Court for the Northern District of Illinois
granted final approval to a settlement of a suit filed over the
tampering of card terminals in certain Michaels Stores, Inc.,
according to the company's May 24, 2013, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
March 4, 2013.
On May 3, 2011, the company was advised by the U.S. Secret Service
that they were investigating certain fraudulent debit card
transactions that occurred on accounts that had been used for
legitimate purchases in selected Michaels stores. A subsequent
internal investigation revealed that approximately 90 payment card
terminals in certain Michaels stores had been physically tampered
with, potentially resulting in customer debit and credit card
information to be compromised. The company has since removed and
replaced approximately 7,100 payment card terminals comparable to
the identified tampered payment card terminals from the company's
Michaels stores.
On May 18, 2011, Brandi F. Ramundo, a consumer, filed a purported
class action proceeding against Michaels Stores, Inc. in the U.S.
District Court for the Northern District of Illinois, on behalf of
herself and all similarly situated U.S. consumers alleging that
Michaels failed to take commercially reasonable steps to protect
consumer financial data, and was in breach of contract and laws,
including the Federal Stored Communications Act and the Illinois
Consumer Fraud and Deceptive Practices Act.
A number of additional purported class action lawsuits
significantly mirroring the claims in the Ramundo complaint were
filed against the Company, and subsequently these cases and the
Ramundo case were consolidated and transferred to the Northern
District of Illinois.
On August 20, 2012, the company reached a tentative class-wide
settlement with plaintiffs for an amount that will not have a
material effect on the company's consolidated financial statements
and the Court granted final approval on April 17, 2013.
MURPHY USA: 3 Hot Fuel Suits in California Remanded for Trial
-------------------------------------------------------------
Three cases venued in California over motor fuel delivered in non-
temperature adjusted gallons were remanded for trial, according to
Murphy USA Inc.'s Amendment No. 1 to Form 10 filed with the U.S.
Securities and Exchange Commission on June 20, 2013.
Since the beginning of fiscal 2007, over 45 class action lawsuits
have been filed in federal courts across the country against
numerous companies in the petroleum industry. Major petroleum
companies and significant retailers in the industry have been
named as defendants in these lawsuits. Murphy USA's subsidiary,
Murphy Oil USA, Inc., is a defendant in eight of these cases.
Pursuant to an Order entered by the Joint Panel on Multi-District
Litigation, all of the cases, including those in which Murphy Oil
USA, Inc. is named, have been transferred to the United States
District Court for the District of Kansas and consolidated for all
pre-trial proceedings.
The plaintiffs in the lawsuits generally allege that they are
retail purchasers who received less motor fuel than the defendants
agreed to deliver because the defendants measured the amount of
motor fuel they delivered in non-temperature adjusted gallons
which, at higher temperatures, contain less energy.
These cases seek, among other relief, an order requiring the
defendants to install temperature adjusting equipment on their
retail motor fuel dispensing devices. In certain of the cases,
including some of the cases in which Murphy Oil USA, Inc. is
named, plaintiffs also have alleged that because defendants pay
fuel taxes based on temperature adjusted 60 degree gallons, but
allegedly collect taxes from consumers on non-temperature adjusted
gallons, defendants receive a greater amount of tax from consumers
than they paid on the same gallon of fuel. The plaintiffs in these
cases seek, among other relief, recovery of excess taxes paid and
punitive damages. Both types of cases seek compensatory damages,
injunctive relief, attorneys' fees and costs, and prejudgment
interest.
The defendants filed motions to dismiss all cases for failure to
state a claim, which were denied by the court on February 21,
2008. A number of the defendants, including Murphy Oil USA, Inc.,
subsequently moved to dismiss for lack of subject matter
jurisdiction or, in the alternative, for summary judgment on the
grounds that plaintiffs' claims constitute non-justiciable
"political questions." The Court denied the defendants' motion to
dismiss on political question grounds on December 3, 2009, and
defendants request to appeal that decision to the United States
Court of Appeals for the Tenth Circuit was denied on August 31,
2010.
In May 2010, in a lawsuit in which Murphy Oil USA, Inc. was not a
party, the Court granted class certification to Kansas fuel
purchasers seeking implementation of automated temperature
controls and/or certain disclosures, but deferred ruling on any
class for damages. Defendants sought permission to appeal that
decision to the Tenth Circuit in June 2010, and that request was
denied on August 31, 2010. On November 12, 2011, Defendants in the
Kansas case filed a motion to decertify the Kansas classes in
light of a new favorable United States Supreme Court decision.
On January 19, 2012, the Judge denied the Defendants' motion to
decertify and granted plaintiffs' motion to certify a class as to
liability and injunctive relief aspects of plaintiffs' claims. The
court has continued to deny certification of a damages class.
On September 24, 2012, the jury in the Kansas case returned a
unanimous verdict in favor of defendants finding that defendants
did not violate Kansas law by willfully failing to disclose
temperature and its effect on the energy content of motor fuel. On
October 3, 2012 the judge in the Kansas case also ruled that
defendants' practice of selling motor fuel without disclosing
temperature or disclosing the effect of temperature was not
unconscionable under Kansas law. On January 23, 2013, the judge
ordered that three cases venued in California be remanded for
trial.
NATIONAL FINANCIAL: Faces Suit Over Merger With Patriot Parent
--------------------------------------------------------------
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 (the "Complaint"), according to the
company's Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended May 4, 2013.
The Complaint alleges that the members of the Company's Board of
Directors violated their fiduciary duties in connection with (i)
the Agreement and Plan of Merger with 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)
disclosure provided in the definitive proxy statement filed by the
Company on May 17, 2013.
The plaintiff seeks, among other things, to enjoin the Merger. The
Company and its Board of Directors believe that the claims in the
Complaint are without merit.
NETSPEND HOLDINGS: "Koehler" Plaintiff Denied Injunction Request
----------------------------------------------------------------
The request of plaintiff in Koehler v. NetSpend Holdings, Inc. et
al. for a preliminary injunction in relation to a merger with
Total System Services, Inc. was denied, according to NetSpend's
May 23, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2013.
As disclosed in the definitive proxy statement filed by NetSpend
Holdings, Inc. ("NetSpend" or the "Company") with the Securities
and Exchange Commission ("SEC") on April 23, 2013, a putative
class action entitled Koehler v. NetSpend Holdings, Inc. et al.
(the "Koehler action") was filed in the Court of Chancery of the
State of Delaware on March 1, 2013 in connection with the
Company's proposed merger with Total System Services, Inc.
("TSYS") pursuant to the Agreement and Plan of Merger, dated as of
February 19, 2013, by and among the Company, TSYS and General
Merger Sub, Inc., a wholly-owned subsidiary of TSYS.
On May 21, 2013, the Delaware Chancery Court issued a memorandum
opinion in the Koehler action denying the plaintiff's motion for a
preliminary injunction, which sought to enjoin a shareholder vote
on the proposed merger.
The Delaware Chancery Court ruled that the plaintiff "demonstrated
that a reasonable likelihood exists that the sales process
undertaken by the NetSpend Board -- which included a lack of a
pre-agreement market canvas, negotiation with a single potential
purchaser, reliance on a weak fairness opinion, agreement to forgo
a post-agreement market check, and agreements to deal protection
devices, including, most significantly, a don't-ask-don't waive
provision -- was not designed to produce the best price for
stockholders. However, because the injunction requested presents
a possibility that the stockholders will lose their chance to
receive a substantial premium over market for their shares from
Total System Services, and because no other potential bidders have
appeared," the Delaware Chancery Court ruled that the plaintiff
failed to demonstrate that the equities of the matter favored
injunctive relief. Therefore, the plaintiff's request for a
preliminary injunction was denied. As a result of the Delaware
Chancery Court's ruling, the special meeting of NetSpend
stockholders was to be held as scheduled on May 31, 2013.
NVIDIA CORPORATION: Appeal v. Approval of GPU Suit Accord Pending
-----------------------------------------------------------------
An appeal against the final approval of the settlement of the suit
The NVIDIA GPU Litigation is pending before the United States
Court of Appeals for the Ninth Circuit, according to NVIDIA
Corporation's May 22, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended April 28,
2013.
In September, October and November 2008, several putative consumer
class action lawsuits were filed against the company asserting
various claims arising from a weak die/packaging material set in
certain versions of the company's previous generation products
used in notebook configurations.
On February 26, 2009, the various lawsuits were consolidated in
the United States District Court for the Northern District of
California, San Jose Division, under the caption "The NVIDIA GPU
Litigation." On March 2, 2009, several of the parties filed
motions for appointment of lead counsel and briefs addressing
certain related issues. On April 10, 2009, the District Court
appointed Milberg LLP lead counsel.
On May 6, 2009, the plaintiffs filed an Amended Consolidated
Complaint, alleging claims for violations of California Business
and Professions Code Section 17200, Breach of Implied Warranty
under California Civil Code Section 1792, Breach of the Implied
Warranty of Merchantability under the laws of 27 other states,
Breach of Warranty under the Magnuson-Moss Warranty Act, Unjust
Enrichment, violations of the New Jersey Consumer Fraud Act,
Strict Liability and Negligence, and violation of California's
Consumer Legal Remedies Act.
After extensive motion practice and litigation, plaintiffs on
December 14, 2009 filed a Second Amended Consolidated Complaint
seeking unspecified damages and asserting claims for violations of
California Business and Professions Code Section 17200, Breach of
Implied Warranty under California Civil Code Section 1792, Breach
of Warranty under the Magnuson-Moss Warranty Act, violations of
the New Jersey Consumer Fraud Act, Strict Liability and
Negligence, and violation of California's Consumer Legal Remedies
Act.
On July 16, 2010, the parties filed a stipulation with the
District Court advising that, following mediation they had reached
a settlement in principle in The NVIDIA GPU Litigation. The
settlement in principle was subject to certain approvals,
including final approval by the court. As a result of the
settlement in principle, and the other estimated settlement, and
offsetting insurance reimbursements, NVIDIA recorded a net charge
of $12.7 million to sales, general and administrative expense
during the second quarter of fiscal year 2011.
In addition, a portion of the $181.2 million of additional charges
the company recorded against cost of revenue related to the weak
die/packaging set during the second quarter of fiscal year 2011,
relates to estimated additional repair and replacement costs
related to the implementation of these settlements. On August 12,
2010, the parties executed a Stipulation and Agreement of
Settlement and Release.
On September 15, 2010, the Court issued an order granting
preliminary approval of the settlement and providing for notice to
the potential class members. The Final Approval Hearing was held
on December 20, 2010, and on that same day the Court approved the
settlement and entered Final Judgment over several objections. In
January 2011, several objectors filed Notices of Appeal of the
Final Judgment to the United States Court of Appeals for the Ninth
Circuit. The appeal is currently pending.
NEW NEWSCORP: Motion to Dismiss N.Y. Securities Suit Pending
------------------------------------------------------------
A motion to dismiss the securities suit Wilder v. News Corp., et
al. is pending, according to New Newscorp LLC's May 23, 2013
Amendment No. 5 to Form 10 with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2013.
On July 19, 2011, a purported class action lawsuit captioned
Wilder v. News Corp., et al. was filed on behalf of all purchasers
of Parent's common stock between March 3, 2011 and July 11, 2011,
in the U.S. District Court for the Southern District of New York.
The plaintiff brought claims under Section 10(b) and Section 20(a)
of the Securities Exchange Act, alleging that false and misleading
statements were issued regarding alleged acts of voicemail
interception at The News of the World. The suit named as
defendants Parent, Rupert Murdoch, James Murdoch and Rebekah
Brooks, and sought compensatory damages, rescission for damages
sustained, and costs.
This litigation and certain other Parent stockholder lawsuits are
all now before the same judge. On June 5, 2012, the court issued
an order appointing the Avon Pension Fund ("Avon") as lead
plaintiff in the litigation and Robbins Geller Rudman & Dowd as
lead counsel. Thereafter, on July 3, 2012, the court issued an
order providing that an amended consolidated complaint was to be
filed by July 31, 2012. Avon filed an amended consolidated
complaint on July 31, 2012, which among other things, added as
defendants the company's subsidiary, NI Group Limited, and Les
Hinton, and expanded the class period to include February 15, 2011
to July 18, 2011. Defendants filed their motion to dismiss on
September 25, 2012, and the parties have completed briefing on the
motion. The motion is pending.
NEW NEWSCORP: MDL Related to HarperCollins' eBooks Continues
------------------------------------------------------------
In re MDL Electronic Books Antitrust Litigation, Civil Action No.
11-md-02293 (DLC) continues before the Honorable Denise L. Cote in
the Southern District of New York, according to New Newscorp LLC's
May 23, 2013 Amendment No. 5 to Form 10 with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
Commencing on August 9, 2011, 29 purported consumer class actions
have been filed in the U.S. District Courts for the Southern
District of New York and for the Northern District of California,
which relate to the decisions by certain publishers, including
HarperCollins Publishers L.L.C. ("HarperCollins"), to begin
selling their eBooks pursuant to an agency relationship.
The Judicial Panel on Multidistrict Litigation has transferred the
various class actions to the Honorable Denise L. Cote in the
Southern District of New York. On January 20, 2012, plaintiffs
filed a consolidated amended complaint, again alleging that
certain named defendants, including HarperCollins, violated the
antitrust and unfair competition laws by virtue of the switch to
the agency model for eBooks.
The actions seek as relief treble damages, injunctive relief and
attorney's fees. On June 25, 2012, Judge Cote issued a scheduling
order for the multi-district litigation going forward. Additional
information about In re MDL Electronic Books Antitrust Litigation,
Civil Action No. 11-md-02293 (DLC), can be found on Public Access
to Court Electronic Records (PACER). The final judgment in the
State Attorneys General matter bars consumers from states and
territories covered by the settlement from participating in the
class actions.
NEW NEWSCORP: Antitrust Suit Settlement Over eBooks Sale Approved
-----------------------------------------------------------------
Honorable Denise L. Cote in the Southern District of New York gave
final approval to the settlement of three publishers, including
HarperCollins Publishers L.L.C., which is involved in a suit
alleging antitrust violations relating to the sale of eBooks,
according to New Newscorp LLC's May 23, 2013 Amendment No. 5 to
Form 10 with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2013.
Following an investigation, on April 11, 2012, the Department of
Justice (the "DOJ") filed an action in the U.S. District Court for
the Southern District of New York against certain publishers,
including HarperCollins, and Apple, Inc. The DOJ's complaint
alleges antitrust violations relating to defendants' decisions to
begin selling eBooks pursuant to an agency relationship. This case
was assigned to the Honorable Denise L. Cote in the Southern
District of New York.
Simultaneously, the DOJ announced that it had reached a proposed
settlement with three publishers, including HarperCollins, and
filed a Proposed Final Judgment and related materials detailing
that agreement. Among other things, the Proposed Final Judgment
requires that HarperCollins terminate its agreements with certain
eBook retailers and places certain restrictions on any agreements
subsequently entered into with such retailers. On September 5,
2012, Judge Cote entered the Final Judgment. Additional
information about the Final Judgment can be found on the DOJ's
website.
Following an investigation, on April 11, 2012, 16 State Attorneys
General led by Texas and Connecticut (the "AGs") filed a similar
action against certain publishers and Apple, Inc. in the Western
District of Texas. On April 26, 2012, the AGs' action was
transferred to Judge Cote. On May 17, 2012, 33 AGs filed a second
amended complaint.
As a result of a memorandum of understanding agreed upon with the
AGs for Texas and Connecticut, HarperCollins was not named as a
defendant in this action. Pursuant to the terms of the memorandum
of understanding, HarperCollins entered into a settlement
agreement with the AGs for Texas, Connecticut and Ohio on June 11,
2012. By August 28, 2012, forty-nine states (all but Minnesota)
and five U.S. territories had signed on to that settlement
agreement.
On August 29, 2012, the AGs simultaneously filed a complaint
against HarperCollins and two other publishers, a motion for
preliminary approval of that settlement agreement and a proposed
distribution plan. On September 14, 2012, Judge Cote granted the
AGs' motion for preliminary approval of the settlement agreement
and approved the AGs' proposed distribution plan. Notice was
subsequently sent to potential class members, and a fairness
hearing took place on February 8, 2013 at which Judge Cote gave
final approval to the settlement. The settlement is now effective,
and the final judgment bars consumers from states and territories
covered by the settlement from participating in the class actions.
NEW NEWSCORP: Canadian Suit Over HarperCollins' eBooks Ongoing
--------------------------------------------------------------
Consumer class actions over the decisions by certain publishers,
including HarperCollins Publishers L.L.C., to begin selling their
eBooks in Canada remain pending in the Canadian provinces of
British Columbia, Quebec and Ontario, according to New Newscorp
LLC's May 23, 2013 Amendment No. 5 to Form 10 with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
Commencing on February 24, 2012, five purported consumer class
actions were filed in the Canadian provinces of British Columbia,
Quebec and Ontario, which relate to the decisions by certain
publishers, including HarperCollins, to begin selling their eBooks
in Canada pursuant to an agency relationship. The actions seek as
relief special, general and punitive damages, injunctive relief
and the costs of the litigations. While it is not possible to
predict with any degree of certainty the ultimate outcome of these
class actions, especially given their early stages, HarperCollins
believes it was compliant with applicable antitrust and
competition laws and intends to defend itself vigorously.
NEW NEWSCORP: DRM Lawsuit in N.Y. Faces Dismissal Motion
--------------------------------------------------------
The U.S. District Court for the Southern District of New York
heard oral argument on Defendants' motion to dismiss the suit The
Book House of Stuyvesant Plaza, Inc, et al. v. Amazon.com, Inc.,
et. al, according to New Newscorp LLC's May 23, 2013 Amendment No.
5 to Form 10 with the U.S. Securities and Exchange Commission for
the quarter ended March 31, 2013.
On February 15, 2013, a purported class of independent bricks-and-
mortar bookstores filed an action in the U.S. District Court for
the Southern District of New York entitled The Book House of
Stuyvesant Plaza, Inc, et al. v. Amazon.com, Inc., et. al, which
relates to the digital rights management protection ("DRM") of
certain publishers', including HarperCollins', e-books being sold
by Amazon.com Inc.
Plaintiffs filed an Amended Complaint on March 21, 2013. The case
involves allegations that certain named defendants in the book
publishing and distribution industry, including HarperCollins,
violated the antitrust laws by virtue of requiring DRM protection.
The action seeks declaratory and injunctive relief, reasonable
costs and attorneys' fees.
On April 1, 2013, Defendants moved to dismiss the Amended
Complaint. The court heard oral argument on Defendants' motion to
dismiss on April 25, 2013. While it is not possible to predict
with any degree of certainty the ultimate outcome of this class
action, HarperCollins believes it was compliant with applicable
antitrust laws and intends to defend itself vigorously.
The company is not able to predict the ultimate outcome or cost of
the HarperCollins matters. During the nine months ended March 31,
2013 and 2012, the legal and professional fees and settlements
incurred in connection with these matters were not material, and
as of March 31, 2013, the company did not have a material accrual
related to these matters.
NF INVESTMENT: Carlyle Seeks Reconsideration in Antitrust Suit
--------------------------------------------------------------
The Carlyle Group L.P., an affiliate of NF Investment Corp.,
joined a motion seeking reconsideration of conspiracy claims in a
suit alleging alleged anti-competitive business practices,
according to NF's May 20, 2013 Form 10 filing with the U.S.
Securities and Exchange Commission.
On February 14, 2008, a private class-action lawsuit challenging
"club" bids and other alleged anti-competitive business practices
was filed in the U.S. District Court for the District of
Massachusetts (Police and Fire Retirement System of the City of
Detroit v. Apollo Global Management, LLC).
The complaint alleges, among other things, that certain global
alternative asset firms, including Carlyle, violated Section 1 of
the Sherman Act by forming multi-sponsor consortiums for the
purpose of bidding collectively in company buyout transactions in
certain going private transactions, which the plaintiffs allege
constitutes a "conspiracy in restraint of trade."
Count One of the complaint alleges an overarching conspiracy
relating to certain large buyout transactions. Count Two of the
complaint alleges a conspiracy with regard to the buyout of
Healthcare Corporation of America.
The plaintiffs seek damages as provided for in Section 4 of the
Clayton Act and an injunction against such conduct in restraint of
trade in the future. The defendants moved for summary judgment on
both counts. On March 13, 2013, the U.S. District Court for the
District of Massachusetts ruled that plaintiffs could proceed on
Count One solely on the basis of an alleged conspiracy to refrain
from "jumping" announced proprietary (i.e., non-auction) deals.
The Court stated that it would entertain further summary judgment
motions by individual defendants as to their participation in the
more narrowly-defined alleged conspiracy. The Court also denied
summary judgment as to Count Two.
On April 16, 2013, Carlyle filed a consolidated motion, renewing
its motion for summary judgment on Count One, and moving for
reconsideration on Count Two. On April 22, 2013, Carlyle joined a
motion seeking reconsideration on Count Two filed on behalf of all
Count Two defendants. The U.S. District Court for the District of
Massachusetts has not set a schedule for class certification
proceedings.
NF INVESTMENT: Appeal v. Dismissal of Securities Suit in Abeyance
-----------------------------------------------------------------
An appeal against the dismissal of shareholder lawsuits against
Carlyle Group L.P., an affiliate of NF Investment Corp., is held
in abeyance, according to NF's May 20, 2013 Form 10 filing with
the U.S. Securities and Exchange Commission.
On June 21, 2011, August 24, 2011, and September 1, 2011,
respectively, three putative shareholder class actions were filed
against Carlyle, certain of its affiliates and former directors of
Carlyle Capital Corporation Limited alleging that the fund
offering materials and various public disclosures were materially
misleading or omitted material information.
Two of the shareholder class actions, (Phelps v. Stomber, et al.
and Glaubach v. Carlyle Capital Corporation Limited, et al.), were
filed in the United States District Court for the District of
Columbia. Phelps v. Stomber, et al. was also filed in the Supreme
Court of New York, New York County and was subsequently removed to
the United States District Court for the Southern District of New
York.
The two original D.C. cases were consolidated into one case, under
the caption of Phelps v. Stomber, and the Phelps named plaintiffs
were designated "lead plaintiffs" by the Court. The New York case
was transferred to the D.C. federal court and the plaintiffs
requested that it be consolidated with the other two D.C. actions.
The plaintiffs were seeking compensatory damages sustained as a
result of the alleged misrepresentations, costs and expenses, as
well as reasonable attorney's fees.
On August 13, 2012, the United States District Court for the
District of Columbia dismissed both the D.C. and New York
shareholder class actions. The plaintiffs have moved for leave to
amend their complaint and/or for amendment of the Court's
decision, and the defendants have opposed these motions. The
plaintiffs also have noticed an appeal to the Court of Appeals for
the District of Columbia Circuit, but the appeal is being held in
abeyance until the District Court resolves pending motions.
NVIDIA CORPORATION: Suit Over Weak Die/Packaging Now Closed
-----------------------------------------------------------
The case Granfield v. NVIDIA Corp. that asserts claims for breach
of implied warranties arising out of the weak die/packaging
material set is now over, according to NVIDIA Corporation's May
22, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended April 28, 2013.
On July 22, 2011, a putative class action titled Granfield v.
NVIDIA Corp. was filed in federal court in Massachusetts asserting
claims for breach of implied warranties arising out of the weak
die/packaging material set, on behalf of a class of consumers
alleged to not be covered by the settlement approved by the
California court in The NVIDIA GPU Litigation.
On November 3, 2011 the action was transferred to the Northern
District of California, San Francisco Division, based upon
stipulation of the parties. On December 30, 2011, Plaintiff filed
a First Amended Complaint asserting claims for violation of
California Consumers Legal Remedies Act and Unfair Competition
Law. On March 19, 2012, Plaintiff filed a Second Amended
Complaint asserting claims for California Consumers Legal Remedies
Act and Unfair Competition Law violations, Breach of Implied
Warranty, and violations of the Massachusetts consumer protection
statutes. NVIDIA filed a motion to dismiss the Second Amended
Complaint on April 12, 2012.
On July 12, 2012, the District Court dismissed six of the seven
asserted causes of action with prejudice, allowing only one cause
of action for violation of the Massachusetts consumer protection
statute to continue, and instructed Plaintiff to file an amended
complaint consistent with its Order. On August 15, 2012, Plaintiff
indicated that he would not be filing an amended complaint. The
Granfield case is now over.
NVIDIA CORPORATION: Appeal Filed Against Dismissal of Stock Suit
----------------------------------------------------------------
An appeals court has not yet set a hearing date for an appeal
against the dismissal of a securities suit filed against NVIDIA
Corporation in the United States District Court for the Northern
District of California, according to NVIDIA Corporation's May 22,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended April 28, 2013.
In September 2008, three putative securities class actions, or the
Actions, were filed in the United States District Court for the
Northern District of California arising out of the company's
announcements on July 2, 2008, that the company would take a
charge against cost of revenue to cover anticipated costs and
expenses arising from a weak die/packaging material set in certain
versions of the company's previous generation MCP and GPU products
and that the company was revising financial guidance for the
company's second quarter of fiscal year 2009.
The Actions purport to be brought on behalf of purchasers of
NVIDIA stock and assert claims for violations of Sections 10(b)
and 20(a) of the Securities Exchange Act of 1934, as amended, or
the Securities Exchange Act. On October 30, 2008, the Actions were
consolidated under the caption In re NVIDIA Corporation Securities
Litigation, Civil Action No. 08-CV-04260-JW (HRL).
Lead Plaintiffs and Lead Plaintiffs' Counsel were appointed on
December 23, 2008. On February 6, 2009, co-Lead Plaintiff filed a
Writ of Mandamus with the Ninth Circuit Court of Appeals
challenging the designation of co-Lead Plaintiffs' Counsel.
On February 19, 2009, co-Lead Plaintiff filed with the District
Court, a motion to stay the District Court proceedings pending
resolution of the Writ of Mandamus by the Ninth Circuit. On
February 24, 2009, Judge Ware granted the stay. On November 5,
2009, the Court of Appeals issued an opinion reversing the
District Court's appointment of one of the lead plaintiffs'
counsel, and remanding the matter for further proceedings. On
December 8, 2009, the District Court appointed Milberg LLP and
Kahn Swick & Foti, LLC as co-lead counsel.
On January 22, 2010, Plaintiffs filed a Consolidated Amended Class
Action Complaint for Violations of the Federal Securities Laws,
asserting claims for violations of Section 10(b), Rule
10b-5, and Section 20(a) of the Securities Exchange Act. The
consolidated complaint sought unspecified compensatory damages.
The company filed a motion to dismiss the consolidated complaint
in March 2010 and a hearing was held on June 24, 2010 before Judge
Seeborg. On October 19, 2010, Judge Seeborg granted the company's
motion to dismiss with leave to amend. On December 2, 2010, co-
Lead Plaintiffs filed a Second Consolidated Amended Complaint.
The company moved to dismiss the Second Consolidated Amended
Complaint on February 14, 2011. Following oral argument, on
October 12, 2011, Judge Seeborg granted the company's motion to
dismiss without leave to amend, and on November 8, 2011,
Plaintiffs filed a Notice of Appeal to the Ninth Circuit. The
appeal has been fully briefed, but the Ninth Circuit has not yet
set a hearing date.
NVIDIA CORPORATION: Books $475MM in MCP & GPU Warranty Charges
--------------------------------------------------------------
According to NVIDIA Corporation's May 22, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended April 28, 2013, the company recorded a total cumulative net
warranty charge of $475.9 million, of which $466.4 million has
been charged against cost of revenue, as of April 28, 2013, to
cover anticipated customer warranty, repair, return, replacement
and other costs arising from a weak die/packaging material set
used in certain versions of the company's previous generation MCP
and GPU products shipped after July 2008 and used in notebook
configuration.
NVIDIA is engaged in litigation with parties related to the
company's acquisition of 3dfx in 2001. In addition, in September,
October and November 2008, several putative securities class
action lawsuits were filed against for alleged defects in the
company's previous generation MCP and GPU products.
The previous generation MCP and GPU products that are impacted
were included in a number of notebook products that were shipped
and sold in significant quantities. Certain notebook
configurations of these MCP and GPU products are failing in the
field at higher than normal rates. Testing suggests a weak
material set of die/package combination, system thermal management
designs, and customer use patterns are contributing factors for
these failures.
The company worked with its customers to develop and have made
available for download a software driver to cause the system fan
to begin operation at the powering up of the system and reduce the
thermal stress on these chips. The company also recommended to the
company's customers that they consider changing the thermal
management of the products in their notebook system designs.
Although the company believes this issue has been nearly fully
remediated, the company remains committed to fully support the
company's customers in their repair and replacement of these
impacted products that fail, and their other efforts to mitigate
the consequences of these failures. The company continues to not
see any abnormal failure rates in any systems using NVIDIA
products other than certain notebook configurations. However, the
company is continuing to test and otherwise investigate other
products. There can be no assurance that the company will not
discover defects in other products.
PLANTRONICS INC: Paying Settlements in Bluetooth Headset Suit
-------------------------------------------------------------
Plantronics, Inc. and other defendants in In Re Bluetooth Headset
Products Liability Litigation are in process of making payments to
four charitable institutions to settle the suit, according to
Plantronics, Inc.'s May 24, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended March
30, 2013.
Five class action lawsuits filed against the company alleging that
the company's Bluetooth headsets may cause noise-induced hearing
loss are outstanding. Shannon Wars et al. vs. Plantronics, Inc.
was filed on November 14, 2006 in the U.S. District Court for the
Eastern District of Texas. Lori Raines, et al. vs. Plantronics,
Inc. was filed on October 20, 2006 in the U.S. District Court,
Central District of California. Kyle Edwards, et al vs.
Plantronics, Inc. was filed on October 17, 2006 in the U.S.
District Court, Middle District of Florida. Ralph Cook vs.
Plantronics, Inc. was filed on February 8, 2007 in the U.S.
District Court for the Eastern District of Virginia. Randy Pierce
vs. Plantronics, Inc. was filed on January 10, 2007 in the U.S.
District Court for the Eastern District of Arkansas.
These complaints seek various remedies, including injunctive
relief requiring the company to include certain additional
warnings with the company's Bluetooth headsets and to redesign the
headsets to limit the volume produced, or, alternatively, to
provide the user with the ability to determine the level of sound
emitted from the headset.
Plaintiffs also seek unspecified general, special, and punitive
damages, as well as restitution. The federal cases have been
consolidated for all pre-trial purposes in the U.S. District Court
for the Central District of Los Angeles. The parties have agreed
in principle to settle all outstanding claims. The U.S. District
Court for the Central District of Los Angeles signed an order
approving the final settlement of the lawsuit entitled In Re
Bluetooth Headset Products Liability Litigation, brought against
Plantronics, Inc., Motorola, Inc., and GN Netcom, Inc., alleging
that the three companies failed to adequately warn consumers of
the potential for long-term noise induced hearing loss if they
used Bluetooth headsets.
The companies contested the claims of the lawsuit, but settled the
lawsuit on a nationwide basis for an amount which the company
believes is less than the cost of litigating and winning the
lawsuit which the District Court thereafter approved. Objectors
to the settlement appealed the judgment issued by the District
Court that the United States Court of Appeals for the Ninth
Circuit (Ninth Circuit) vacated and remanded with instructions to
the District Court to properly exercise its discretion in
accordance with the principles set forth in the decision by the
Ninth Circuit.
The District Court re-issued its decision and judgment in August
2012, significantly reducing the amount of attorneys' fees awarded
to counsel for the plaintiffs. The time for further appeal has now
expired. The defendants are in process of making the settlement
payments to the four charitable institutions entitled to receive
those payments and to pay the attorneys' fees and costs. Once
these payments are finalized, a dismissal with prejudice is
expected to be entered. The company believes that any loss
related to these proceedings would not be material and have
adequately reserved for these costs in the consolidated financial
statements.
SEARS HOLDINGS: Still Faces Suits by Hourly & Salaried Associates
-----------------------------------------------------------------
Sears Holdings Corporation disclosed in its May 23, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarterly period ended May 4, 2013, that it is a defendant in
several lawsuits containing class or collective action allegations
in which the plaintiffs are current and former hourly and salaried
associates who allege violations of various wage and hour laws,
rules and regulations pertaining to alleged misclassification of
certain of the company's employees and the failure to pay overtime
and/or the failure to pay for missed meal and rest periods.
The complaints generally seek unspecified monetary damages,
injunctive relief, or both. Further, certain of these proceedings
are in jurisdictions with reputations for aggressive application
of laws and procedures against corporate defendants. The company
also is a defendant in several putative or certified class action
lawsuits in California relating to alleged failure to comply with
California laws pertaining to certain operational, marketing and
payroll practices.
The California laws alleged to have been violated in each of these
lawsuits provide the potential for significant statutory
penalties. At this time, the Company is not able to either predict
the outcome of these lawsuits or reasonably estimate a potential
range of loss with respect to the lawsuits.
The company are subject to various other legal and governmental
proceedings and investigations, including some involving the
practices and procedures in the company's more highly regulated
businesses and many involving litigation incidental to those and
other businesses. Some matters contain class action allegations,
environmental and asbestos exposure allegations and other
consumer-based, regulatory or qui tam claims, each of which may
seek compensatory, punitive or treble damage claims (potentially
in large amounts), as well as other types of relief.
SIGNET JEWELERS: Suit Over Employment Practices in Arbitration
--------------------------------------------------------------
Arbitration is underway in a suit against Sterling Jewelers Inc.
alleging that its US store-level employment practices are
discriminatory, according to Signet Jewelers Limited's May 23,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended May 4, 2013.
In March 2008, a group of private plaintiffs filed a class action
lawsuit for an unspecified amount against Sterling Jewelers Inc.
("Sterling"), a subsidiary of Signet, in the U.S. District Court
for the Southern District of New York alleging that US store-level
employment practices are discriminatory as to compensation and
promotional activities with respect to gender.
In June 2008, the District Court referred the matter to private
arbitration where the plaintiffs sought to proceed on a class-wide
basis. In June 2009, the arbitrator ruled that the arbitration
agreements allowed the plaintiffs to proceed on a class-wide basis
and attempt to seek class certification.
Sterling challenged the ruling and the District Court vacated the
arbitrator's decision in July 2010. The plaintiffs appealed that
order to the U.S. Court of Appeals for the Second Circuit. In July
2011, the Second Circuit reversed the District Court's decision
and instructed the District Court to confirm the Arbitrator's
Award (i.e., to allow the private plaintiffs to move forward with
a proposed class claim in arbitration).
Sterling filed a petition for rehearing en banc of the Second
Circuit panel's decision, which was denied on September 6, 2011.
Sterling filed a petition writ of certiorari with U.S. Supreme
Court seeking review of the Second Circuit's decision, which was
denied on March 19, 2012. The arbitration proceeding is underway,
and discovery is ongoing.
SIGNET JEWELERS: Discovery Ongoing in Gender Discrimination Suit
----------------------------------------------------------------
Discovery is now ongoing in a suit filed against Sterling Jewelers
Inc. in the U.S. District Court for the Western District of New
York alleging the company engaged in intentional and disparate
impact gender discrimination, according to Signet Jewelers
Limited's May 23, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended May 4,
2013.
On September 23, 2008, the U.S. Equal Employment Opportunity
Commission ("EEOC") filed a lawsuit against Sterling in the U.S.
District Court for the Western District of New York. The EEOC's
lawsuit alleges that Sterling engaged in intentional and disparate
impact gender discrimination with respect to pay and promotions of
female retail store employees from January 1, 2003 to the present.
The EEOC asserts claims for unspecified monetary relief and non-
monetary relief against the Company on behalf of a class of female
employees subjected to these alleged practices. Discovery is now
ongoing in the case.
Sterling denies the allegations of both parties and has been
defending these cases vigorously. At this point, no outcome or
amount of loss is able to be estimated.
SPORT CHALET: Settles "Bennett" Suit by Wheelchair-Bound Persons
----------------------------------------------------------------
Sport Chalet, Inc. reached a settlement in a suit filed on behalf
of wheelchair-bound persons located in California, according to
the company's May 24, 2013, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended March
31, 2013.
On April 12, 2012, the Company was served with a complaint filed
in the California Superior Court for the County of Los Angeles,
entitled Brian Bennett v. Sport Chalet, Inc. and Sport Chalet Team
Sales, Inc. (Case No. BC482472), alleging violations of the
California Civil Code. The complaint was brought as a purported
class action on behalf of wheelchair-bound persons located in
California.
The plaintiff alleges, among other things, that the Company
violated California state law by failing to make certain store
locations accessible to individuals with disabilities. The
plaintiff seeks, on behalf of the class members, unspecified
amounts of damages, attorneys' fees and costs. Plaintiffs' demands
for injunctive relief claim that the features of some of the
Company's California stores are not in compliance with state or
federal regulations and therefore are not accessible to
individuals who use wheelchairs. On April 30, 2013, this complaint
was resolved and the settlement of the litigation was immaterial
to the Company's financial condition.
SRO ENTERTAINMENT: Salmon Fest Class Action Uncertain, Lawyer Says
------------------------------------------------------------------
VOCM News reports that St. John's lawyer Ches Crosbie --
ccrosbie@chescrosbie.com -- says he's taken information from a
number of people who were dissatisfied with their recent Salmon
Fest VIP experience. A number of VIP ticket holders have
expressed their displeasure with overcrowding, long line ups and a
shortage of water, despite paying extra money for close access and
improved service during the mega-concert.
Mr. Crosbie says it's far too early to determine whether or not a
class action can be launched, but he is hearing from quite a few
people.
He says they can't charge into a lawsuit without being sure of
their grounds.
VOCM News has made repeated attempts to contact the promoters, SRO
Entertainment, but to date, has not had any luck reaching a
spokesperson for comment.
STARBURST II: Kansas Court Junks Consolidated Securities Action
---------------------------------------------------------------
The District Court of Johnson County, Kansas, granted in part
motions to dismiss a consolidated securities lawsuit against
Starburst II, Inc. and entered an order staying all proceedings
pending further action in state court cases, according to the
company's June 17, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2013.
In October and November, a number of purported stockholders of
Sprint filed complaints styled as class action lawsuits in the
District Court of Johnson County, Kansas.
The cases name as defendants Sprint, certain of Sprint's directors
and officers and SoftBank and certain of its subsidiaries,
including the Company. The Kansas state cases have been
consolidated. Thereafter, another purported stockholder plaintiff
filed a complaint in federal court in Kansas, making essentially
the same allegations.
The complaints allege, among other things, that Sprint's board of
directors conducted an unfair sales process resulting in an unfair
consideration to the Sprint stockholders in the proposed Merger.
They assert that members of Sprint's board of directors breached
their fiduciary duties in agreeing to the terms of proposed Merger
and associated documents or investments by SoftBank, and that
SoftBank aided and abetted in the breaches of fiduciary duties.
In addition, the federal action alleges that the Sprint board of
directors violated its fiduciary duties and federal securities
laws by omitting material facts from the Registration Statement on
Form S-4, of which the Prospectus forms a part. The lawsuits seek
to enjoin the proposed Merger and seek unspecified monetary
damages.
On February 20, 2013, the plaintiff in the Sprint federal action
filed an amended complaint that added claims that the Sprint board
of directors breached its fiduciary duties by filing a materially
misleading proxy statement with the SEC. On March 28, 2013,
plaintiffs in the Sprint state action filed a Consolidated Amended
Petition under seal.
On April 19, 2013, the federal court denied the federal
plaintiff's motion for expedited discovery and upheld the
automatic stay of discovery under the federal securities laws. A
third plaintiff filed an additional complaint in federal court in
May, and that complaint was consolidated with the prior federal
action. Following consolidation, the federal court granted in part
motions to dismiss filed by defendants and entered an order
staying all proceedings pending further action in the state court
cases.
SUPERVALU INC: Still Faces RICO Violations Suit in Wisconsin
------------------------------------------------------------
Supervalu Inc. continues to face a suit alleging, among others,
violation of the Federal Racketeer Influenced and Corrupt
Organizations Act, according to the company's May 22, 2013, Form
8-K filing with the U.S. Securities and Exchange Commission.
In September 2008, a class action complaint was filed against the
Company, as well as International Outsourcing Services, LLC
("IOS"), Inmar, Inc., Carolina Manufacturer's Services, Inc.,
Carolina Coupon Clearing, Inc. and Carolina Services, in the
United States District Court in the Eastern District of Wisconsin.
The plaintiffs in the case are a consumer goods manufacturer, a
grocery co-operative and a retailer marketing services company who
allege on behalf of a purported class that the Company and the
other defendants (i) conspired to restrict the markets for coupon
processing services under the Sherman Act and (ii) were part of an
illegal enterprise to defraud the plaintiffs under the Federal
Racketeer Influenced and Corrupt Organizations Act.
The plaintiffs seek monetary damages, attorneys' fees and
injunctive relief. The Company intends to vigorously defend this
lawsuit, however all proceedings have been stayed in the case
pending the result of the criminal prosecution of certain former
officers of International Outsourcing Services, LLC.
SUPERVALU INC: Seeks Rehearing After Reversal of Dismissal Order
----------------------------------------------------------------
Supervalu Inc. filed a Petition with the 8th Circuit for an En
Banc Rehearing after a reversal of a district court order that
dismissed a case (regarding the non-arbitration plaintiffs)
related to the purchase of certain assets of the Fleming
Corporation, Supervalu disclosed in a May 2013 Form 8-K filing
with the U.S. Securities and Exchange Commission.
In December 2008, a class action complaint was filed in the United
States District Court for the Western District of Wisconsin
against the Company alleging that a 2003 transaction between the
Company and C&S Wholesale Grocers, Inc. ("C&S") was a conspiracy
to restrain trade and allocate markets.
In the 2003 transaction, the Company purchased certain assets of
the Fleming Corporation as part of Fleming Corporation's
bankruptcy proceedings and sold certain assets of the Company to
C&S which were located in New England. Since December 2008, three
other retailers have filed similar complaints in other
jurisdictions. The cases have been consolidated and are
proceeding in the United States District Court for the District of
Minnesota.
The complaints allege that the conspiracy was concealed and
continued through the use of non-compete and non-solicitation
agreements and the closing down of the distribution facilities
that the Company and C&S purchased from each other. Plaintiffs
are seeking monetary damages, injunctive relief and attorneys'
fees.
On July 5, 2011, the District Court granted the Company's Motion
to Compel Arbitration for those plaintiffs with arbitration
agreements and plaintiffs appealed. On July 16, 2012, the District
Court denied plaintiffs' Motion for Class Certification and on
January 11, 2013, the District Court granted the Company's Motion
for Summary Judgment and dismissed the case regarding the non-
arbitration plaintiffs.
Plaintiffs have appealed these decisions. On February 12, 2013,
the 8th Circuit reversed the District Court decision requiring
plaintiffs with arbitration agreements to arbitrate and the
Company filed a Petition with the 8th Circuit for an En Banc
Rehearing.
SWISHER HYGIENE: Stock Suit Plaintiffs File Consolidated Claim
--------------------------------------------------------------
Lead plaintiffs in a securities suit against Swisher Hygiene Inc.
that was consolidated for multidistrict proceedings in the U.S.
District Court for the Western District of North Carolina filed
their first amended consolidated class action complaint, according
to the company's May 24, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March 31,
2013.
On March 30, 2012, a purported Company shareholder commenced a
putative securities class action on behalf of purchasers of the
Company's common stock in the U.S. District Court for the Southern
District of New York against the Company, the former President and
Chief Executive Officer ("former CEO"), and the former Vice
President and Chief Financial Officer ("former CFO").
The plaintiff asserted claims alleging violations of Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 (the
"Exchange Act") based on alleged false and misleading disclosures
in the Company's public filings. In April and May 2012, four more
putative securities class actions were filed by purported Company
shareholders in the U.S. District Court for the Western District
of North Carolina against the same set of defendants. The
plaintiffs in these cases have asserted claims alleging violations
of Sections 10(b) and 20(a) of the Exchange Act of 1934 based on
alleged false and misleading disclosures in the Company's public
filings. In each of the putative securities class actions, the
plaintiffs seek damages for losses suffered by the putative class
of investors who purchased Swisher common stock.
On May 21, 2012, a shareholder derivative action was brought
against the Company's former CEO and former CFO and the Company's
directors for alleged breaches of fiduciary duty by another
purported Company shareholder in the U.S. District Court for the
Southern District of New York. In this derivative action, the
plaintiff seeks to recover for the Company damages arising out of
a possible restatement of the Company's financial statements.
On May 30, 2012, the Company, and its former CEO and former CFO
filed a motion with the United States Judicial Panel on
Multidistrict Litigation ("MDL Panel") to centralize all of the
cases in the Western District of North Carolina by requesting that
the actions filed in the Southern District of New York be
transferred to the Western District of North Carolina.
In light of the motion to centralize the cases in the Western
District of North Carolina, the Company, and its former CEO and
former CFO requested from both courts a stay of all proceedings
pending the MDL Panel's ruling. On June 4, 2012, the U.S. District
Court for the Southern District of New York adjourned all pending
dates in the cases in light of the motion to transfer filed before
the MDL Panel. On June 13, 2012, the U.S. District Court for the
Western District of North Carolina issued a stay of proceedings
pending a ruling by the MDL Panel.
On August 13, 2012, the MDL Panel granted the motion to
centralize, transferring the actions filed in the Southern
District of New York to the Western District of North Carolina.
In response, on August 21, 2012, the Western District of North
Carolina issued an order governing the practice and procedure in
the actions transferred to the Western District of North Carolina
as well as the actions originally filed there.
On October 18, 2012, the Western District of North Carolina held
an Initial Pretrial Conference at which it appointed lead counsel
and lead plaintiffs for the securities class actions, and set a
schedule for the filing of a consolidated class action complaint
and defendants' time to answer or otherwise respond to the
consolidated class action complaint. The Western District of North
Carolina stayed the derivative action pending the outcome of the
securities class actions.
On April 24, 2013, lead plaintiffs filed their first amended
consolidated class action complaint (the "Class Action Complaint")
asserting similar claims as those previously alleged as well as
additional allegations stemming from the Company's restated
financial statements. The Class Action Complaint also names the
Company's former Senior Vice President and Treasurer as an
additional defendant. Defendants have sixty days from that date to
answer or otherwise respond to the Class Action Complaint.
In addition to the foregoing matters, other shareholders may
assert claims, and some shareholders have threatened to assert
claims, relating to the March 28, 2012 announcement regarding the
company's financial statements. The defense of any such claims or
potential claims or proceedings may cause the diversion of
management's attention and resources, and the company may be
required to settle the claims or pay damages if any such claims or
proceedings are not resolved in the company's favor. Any
litigation or regulatory proceeding, even if resolved in the
company's favor, could cause the company to incur significant
legal and other expenses. In the Company's view, as of the date of
this filing the financial impact of any such potential claims is
not reasonably estimable.
TOYOTA MOTOR: July Hearing Set in Product Liability Suit Accord
---------------------------------------------------------------
The United States District Court for the Central District of
California scheduled a July 2013 hearing for the presentation of
additional information in relation to a settlement of economic
loss claims in a suit against Toyota Motor Corporation alleging
defects in vehicles that lead to unintended acceleration,
according to the company's June 24, 2013, Form 20-F filing with
the U.S. Securities and Exchange Commission the fiscal year ended
March 31, 2013.
Approximately 200 putative class actions and more than 500
individual product liability personal injury cases have been filed
since November 2009 alleging that certain Toyota, Lexus and Scion
vehicles contain defects that lead to unintended acceleration.
In April 2010, the approximately 190 putative class actions in
federal court as well as the federal product liability personal
injury cases and warranty and lemon law cases were consolidated
for pretrial proceedings into a single multi-district litigation
in the United States District Court for the Central District of
California. Approximately 10 putative class actions and various
product liability personal injury cases pending in state courts
were subsequently consolidated into the federal action. The
remaining class actions lawsuits are pending in a consolidated
state action in California.
In December 2012, Toyota and the plaintiffs announced that they
had reached an agreement to settle the economic loss claims in the
consolidated federal action. The court preliminarily approved the
agreement and held the final approval hearing in June 2013.
The court took the matter under submission and scheduled a hearing
in July 2013 for the presentation of additional information. In
fiscal 2013, Toyota recorded a $1.1 billion pre-tax charge against
earnings to cover the estimated costs of this resolution and other
potential recall-related resolutions, including the resolution of
the civil litigation filed by the Orange County District Attorney
and the state attorneys general's investigation.
The settlement provides a customer support program covering
certain vehicle parts, the free installation of a brake override
system on the remaining floor mat entrapment safety campaign
vehicles and funds for cash payments to customers who do not
receive the brake override system, cash payments to individuals
who allegedly suffered a loss on the sale, lease or insuring the
residual value of Toyota's vehicles and funds for safety-related
research and education programs. The settlement does not cover
product liability personal injury claims in the consolidated
federal action or pending in various state courts in the United
States.
TOYOTA MOTOR: July Hearing in Suit Over Non-Recalled Vehicles Set
-----------------------------------------------------------------
A July 2013 class certification hearing is set in connection with
claims related to certain Toyota Motor Corporation vehicles that
were not recalled, according to the company's June 24, 2013, Form
20-F filing with the U.S. Securities and Exchange Commission the
fiscal year ended March 31, 2013.
Beginning in February 2010, Toyota was sued in approximately 20
putative class actions alleging defects in the antilock braking
system in various hybrid vehicles that cause the vehicles to fail
to stop in a timely manner when driving in certain road
conditions.
The plaintiffs seek an order requiring Toyota to repair the
vehicles and claim that all owners and lessees of vehicles,
including those for which recalls have been implemented, should be
compensated for the alleged defects related to the antilock
braking system. These cases have been consolidated into two
actions, one in the United States District Court for the Central
District of California and one in the Los Angeles County Superior
Court.
In January 2013, the Court in the federal case issued an order
denying the plaintiff's motion for class certification and
granting summary judgment in favor of Toyota on the claims of the
principal named plaintiff for the cases relating to recalled
vehicles. A class certification hearing in connection with the
claims related to those vehicles that were not recalled is
scheduled in July 2013.
TOYOTA MOTOR: Settlement in Lawsuit by ADR Investors Approved
-------------------------------------------------------------
The United States District Court for the Central District of
California approved a settlement reached in a consolidated suit
filed on behalf of investors in Toyota American Depositary
Receipts, according to Toyota Motor Corporation's June 24, 2013,
Form 20-F filing with the U.S. Securities and Exchange Commission
the fiscal year ended March 31, 2013.
From February through March 2010, Toyota was sued in 6 putative
shareholder class actions on behalf of investors in Toyota
American Depositary Receipts ("ADRs") and common stock. The cases
alleged violations of the Securities Exchange Act of 1934 and
Japan's Financial Instruments and Exchange Act and were
consolidated into a single action in the United States District
Court for the Central District of California.
The judge dismissed with prejudice the claims based on Japan's
Financial Instruments and Exchange Act, and Toyota reached an
agreement to resolve the claims asserted on behalf of purchasers
of Toyota's ADRs for an amount not material to Toyota. The court
approved the settlement in March 2013.
While Toyota has resolved or is attempting to resolve many of
these matters, Toyota believes that it has meritorious defenses to
all of them and will vigorously defend those matters not resolved.
UNITED TELEPHONE: Cramming Suit Won't Proceed as Class Action
-------------------------------------------------------------
Jim Provance, writing for The Blade, reports that a would-be
class-action lawsuit alleging negligent business practices on the
part of a phone company was dismantled by the Ohio Supreme Court
on July 16 after eight years of bouncing around the legal system.
The high court voted 5-2 that the lawsuit against United Telephone
Co. and its parent, Sprint Corp., could not proceed in Fulton
County Common Pleas Court as a class action in which multiple
customers accuse the company of similar wrongdoing in a single
case.
The suit, started by the business Stammco and its owners, Kent and
Carrie Stamm, accused the telephone companies of allowing
"cramming" -- a practice in which third parties add unauthorized
charges to customer phone bills.
The case had bounced back and forth between the Fulton County
court, the Toledo-based Ohio Sixth District Court of Appeals, and
the state Supreme Court. The dispute was over whether customers
could be certified as a single class or would have to pursue their
allegations individually.
Ultimately, the Supreme Court has held that the Fulton County
court was right in finally rejecting the class. It sent the case
back to the lower court to be pursued on an individual basis.
The Supreme Court found that the lower court was permitted to
delve into the merits of the case when deciding whether it met the
requirements of a class action.
". . . (T)he proposed amended class is too broad," Justice Sharon
Kennedy wrote. "UTO has no records regarding which charges are
authorized and which are not. Under the proposed amended class,
every person who was billed a third-party charge for which UTO had
no prior authorization is now class member even if the third-party
charge was proper."
She was joined in the majority by Chief Justice Maureen O'Connor
and Justices Terrence O'Donnell, Judith Lanzinger, and Judith
French.
But Justices Paul Pfeiffer and William O'Neill dissented.
"As a practical matter, Ohio citizens who suffer small, individual
damages as a result of a business' serial bad conduct are without
a meaningful remedy unless they can convince the Ohio attorney
general to get interested in their cases," Justice Pfeiffer wrote.
"This court is well on its way to consigning class actions in Ohio
to the dustbin of legal history, joining workplace intentional
torts."
Attorneys from both sides did not return calls seeking comment.
* 30,000 Minnesotans Have Yet to Receive LCD Settlement Checks
--------------------------------------------------------------
John Ewoldt, writing for StarTribune.com, reports that Gloria Ross
of Minneapolis has been waiting since December for her check from
an LCD class action settlement. "It's been so long that I'm
beginning to wonder if it's a hoax," she said. "Maybe they were
just out to collect personal information."
Ms. Ross purchased two flat screen TVs and a computer monitor from
1999 to 2006, the time period affected by the settlement, and is
expected to get a check for nearly $300,
She is one of 30,000 Minnesotans who are still waiting for a
check, but lawyers close to the case say they shouldn't expect
their cash anytime soon.
A number of objections have been filed to stall the $1.1 billion
distribution of the largest price fixing antitrust settlement in
history for consumers, said Joseph Alioto, a San Francisco
attorney who co-led the case against the manufacturers. "I agree
it's taking way too long," he said. "These objectors have
enormous leverage to hold up the money."
The claim involves more than 10.5 million panels purchased by
235,000 consumers and businesses in 24 states and the District of
Columbia after nine LCD flat screen manufacturers agreed to settle
price-fixing claims on flat screen TVs, monitors and laptops out
of court. Consumers who filed a claim before the Dec. 6, 2012
deadline are expected to receive checks of approximately $75 per
monitor and $150 per flat panel TV.
Without objections, the checks probably would have gone out in
May, but now the settlement for the distribution of funds cannot
take place until after all appeals are filed. That can take
several years, said Alioto, so he plans to file motions within the
next two weeks attacking the appeals. "I am asking the court to
make sure these claims (appeals) are worthy of holding up the
settlement," he said.
Consumers could start seeing checks in as little as three months
or as long as three years. "It all depends on how quickly we can
resolve the appeals," said Dan Shulman --
daniel.shulman@gpmlaw.com -- an attorney at the Minneapolis law
firm Gray Plant Mooty, one of more than 100 law firms, many of
them small firms and sole proprietorships, managing the case in
U.S. District Court in San Francisco.
What's the nature of the objections? Mr. Alioto said they're
unspecified, but he speculated that it might be due to the 28
percent of the settlement going to attorneys' fees. If that's the
case, he will petition the judge to hold up only the lawyers'
portion of the settlement and let the distribution of checks to
consumers and small businesses begin sooner, he said.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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