/raid1/www/Hosts/bankrupt/CAR_Public/130807.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, August 7, 2013, Vol. 15, No. 154
Headlines
7-ELEVEN: Franchisees File Class Action in New Jersey Court
AMERICAN EXPRESS: Seeks Dismissal or Stay of "Seldes" Action
AMERICAN EXPRESS: Amex Canada Can Appeal Rulings in "Adams" Suit
AMERICAN EXPRESS: Parties Can Appeal Rulings in "Marcotte" Suit
AMERICAN EXPRESS: Files Bid to Arbitrate Merchants' Claims
ANADARKO PETROLEUM: Texas Court Trims Shareholders' Class Suit
BARNES & NOBLE: "Nguyen" Class Action Remains Stayed
BARNES & NOBLE: Consolidated Complaint Filed in PIN Pad Litigation
BARNES & NOBLE: "Torrez" Plaintiff Wants Dec. Complaint Dismissed
BARNES & NOBLE: "Lina" Suit in Pre-Certification Discovery
BARNES & NOBLE: Files Answer in "Jones" Class Action
BARNES & NOBLE: "Trimmer" Suit in First Phase of Discovery
BARRICK GOLD: Labaton Sucharow Files Class Action in New York
BC HYDRO: Campbell River Couple Joins Smart Meter Class Action
BMW OF NORTH AMERICA: Faces "Curran" Suit Over Timing Chains
BRIAD RESTAURANT: Settles Alcoholic Beverage Control Violations
CARBO CERAMICS: Securities Suit Dismissed in June
CITIGROUP INC: Judge Approves $590MM Class Action Settlement
CITIGROUP INC: $100.3-Mil. Class Counsel Fee Request Challenged
CORINTHIAN COLLEGES: August 19 Lead Plaintiff Deadline Set
COUNTRY RIBBON: Recalls 2 Kg Salami and Pepperoni Products
CYCLING SPORTS: Recalls Slice RS Bikes Due to Fall Hazard
ELECTRONIC ARTS: Faces Class Action Over Online Play Halt
FONTERRA COOPERATIVE: Botulism Scare Triggers Global Recall
FONTERRA COOPERATIVE: Companies Recall Whey Protein Concentrate
GOLDMAN SACHS: Superior Extrusion Files Antitrust Class Action
HANSEN MEDICAL: Nov. 21 Final Hearing on Class Action Settlement
HERBALIFE LTD: To Vigorously Defend "Bostick" Class Suit
HERSHEY CO: Subpoenas Ordered in Chocolate Cartel Litigation
HOME DEPOT: Agrees to Recall 107,000 Soleil Portable Fan Heaters
HUNTINGTON BANCSHARES: Named as Defendant in Suit v. MERSCORP
IMPERIAL HOLDINGS: Final Court OK of Accord Seen in Early 2014
INTEL CORP: Awaits Court Ruling on Special Master's Report
INTEL CORP: Plaintiffs Appeal Final Judgment in McAfee Buyout Suit
IPI INC: Ex-Employee Files Class Action Over Delayed Final Wages
JAN K OVERWEEL: Recalls Ballarini Brand Gorgonzola Cheese
KINDER MORGAN: Sept. 9 Hearing on Accord in Copano Merger Suits
LENNOX HEARTH: Recalls 1,800 Superior Gas Fireplaces
NEW YORK, NY: Jury Clears Gov. Pataki From Sex Offenders' Claims
NOVA DIABETES: Recalls 21 Lots of Nova Max Glucose Test Strips
PFIZER CANADA: Sechelt Woman Leads Champix Class Action
PROCTER & GAMBLE: Appeals Court Overturns Class Action Settlement
PROCTER & GAMBLE: Gupta Beck Discusses 6th Circuit Ruling
SIRIUSXM: Sued Over Alleged Infringement of Older Recordings
TAYLOR FARMS: FDA Says Stomach Bug Outbreak Linked to Farm
TIME WARNER: Accused of Not Paying Employee's Overtime Wages
TROIS COMTOIS: Recalls Morbier Cheese for Possible Health Risk
TRUE RELIGION: Settlement Awaits Appropriate Documentation
VITA HEALTH: Recalls Extra Strength Daytime Flu Relief
WAL-MART STORES: Employees' Discrimination Class Action Tossed
WELLPOINT INC: Books $90MM Expense Related to "Ormond" Suit Deal
WELLPOINT INC: Argument for Summary Judgment in "Gold" Suit Done
WELLPOINT INC: Court Junks Claims in Suit Over OON "UCR" Rates
WINN-DIXIE: Recalls Ground Beef on E. Coli Contamination Risk
XL FOODS: Wants CFIA Included in E. Coli Outbreak Class Action
*********
7-ELEVEN: Franchisees File Class Action in New Jersey Court
-----------------------------------------------------------
Jillian Berman, writing for The Huffington Post, reports that a
group of five 7-Eleven franchisees claim in a new lawsuit that the
corporation manages their stores so tightly that they're more like
employees than business owners, and therefore should be paid as
such.
In the class-action lawsuit filed in a New Jersey court earlier
last week, the franchise operators say 7-Eleven controls their
stores right down to the interior temperature, product pricing and
employee payroll. In addition, the franchisees can't withdraw
funds from their stores' accounts without permission from
corporate, despite investing hundreds of thousands of dollars of
their own money in those stores, the suit claims.
The result is that the franchisees, each of whom operates a store
in New Jersey, function like employees, even as they assume the
financial risks of small business owners, according to the suit.
"When a franchisor exercises so much control over a franchisee,
the relationship changes from that of franchisee to employee,"
Jerry Marks, the plaintiffs' lawyer, told The Huffington Post.
"They work easily 80 hours a week, they do not get overtime, they
do not get health benefits, they do not get vacation and they do
not get pension benefits."
A 7-Eleven spokesperson declined to comment on the suit, citing
the pending nature of the litigation.
Nearly three-quarters of 7-Eleven's U.S. stores are franchise-
operated, as opposed to company-owned, according to Japanese
parent company Seven & I Holdings Co.'s annual report. The start-
up costs for a 7-Eleven franchise range from about $30,000 to $1.5
million.
In a typical franchise relationship, the franchisee pays the
company a fee and often a share of profits for the right to
operate under the company's brand, and gets some assistance with
things like finding a location and running the store successfully.
The model allows the franchisee investor to take on less risk than
if she started a business of her own. But in exchange, the parent
company often controls aspects of its franchise stores, like
appearance and what kinds of products they sell, according to the
Federal Trade Commission.
Companies typically exert some control over their franchises,
often setting sales goals, for example. But according to Roger
Schmidt, a franchise law expert and a former owner of Taco Bell
and KFC franchises, it's "abnormal" for a corporation to manage
things like pricing and bookkeeping, as the suit alleges 7-Eleven
does.
If true, the lawsuit's claims against 7-Eleven could prove part of
a larger "trend" of fast food chains keeping a tight handle on
operations in their franchise stores, said Sarah Leberstein, a
staff attorney at the National Employment Law Project. These
franchisees could technically be defined as employees of the
company, according some interpretations of labor law, she said.
"The fundamental question should really be whether or not the
franchisees are truly in business for themselves and running their
own businesses," Ms. Leberstein said. "In a lot of these cases,
the companies are putting the financial burden on the franchisees
without giving them a level of independence. [The franchisees are]
not really calling the shots and they're not using their
investment to turn a profit."
The suit comes as 7-Eleven's Japanese owner is embarking on a
massive and rapid expansion, a project that may be affecting the
company's relationship with its franchisees, Schmidt said.
"They're undergoing a pretty aggressive campaign and employing a
lot of new methods, including regulation of vendors and products,
which really hadn't been in their system before," he said.
"There's probably some justification to these franchise lawsuits
that are popping up, and they're going to continue to be popping
up."
AMERICAN EXPRESS: Seeks Dismissal or Stay of "Seldes" Action
------------------------------------------------------------
In its July 29, 2013 Form 10-Q report filed with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2013, American Express Company disclosed that in June
2013, a putative class action, captioned Seldes v. American
Express Centurion Bank, was filed in the United States District
Court, Southern District of Florida alleging that plaintiff
received unilateral interest rate increases despite alleged
promises that the rate would remain fixed. Plaintiff seeks to
certify a nationwide class. On July 26, 2013, the Company moved
to dismiss or, in the alternative, to stay this action.
AMERICAN EXPRESS: Amex Canada Can Appeal Rulings in "Adams" Suit
----------------------------------------------------------------
In its July 29, 2013 Form 10-Q report filed with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2013, American Express Company disclosed that the Supreme
Court of Canada in April 2013 granted Amex Bank of Canada leave to
appeal rulings in a lawsuit filed by Sylvan Adams.
In November 2006, in a matter captioned Sylvan Adams v. Amex Bank
of Canada filed in the Superior Court of Quebec, District of
Montreal (originally filed in November 2004), the Superior Court
authorized a class action against Amex Bank of Canada. The
plaintiff alleges that prior to December 2003, Amex Bank of Canada
charged a foreign currency conversion commission on transactions
to purchase goods and services in currencies other than Canadian
dollars and failed to disclose the commissions in monthly billing
statements or solicitations directed to prospective cardmembers.
The action further alleges that conversion commissions made on
foreign currency transactions are credit charges under the Quebec
Consumer Protection Act (the "QCPA") and cannot be charged prior
to the 21-day grace period under the QCPA. The class, consisting
of all personal and small business cardmembers residing in Quebec
that purchased goods or services in a foreign currency prior to
December 2003, claims reimbursement of all foreign currency
conversion commissions, C$1,000 in punitive damages per class
member, interest and fees and costs. The trial in the Adams action
commenced, and was completed, in December 2008 after the
conclusion of the trial in another action captioned, Marcotte v.
Bank of Montreal, et al.
The Superior Court rendered a judgment in favor of the plaintiffs
against Amex Bank of Canada on June 11, 2009, and awarded damages
in the amount of approximately C$13.1 million plus interest on the
non-disclosure claims. In addition, the Superior Court awarded
punitive damages in the amount of C$2.5 million.
Amex Bank of Canada appealed the judgment and on August 2, 2012,
the Court of Appeal overturned the decision in part, with regard
to the award of punitive damages. On October 15, 2012, Amex Bank
of Canada filed leave for appeal to the Supreme Court of Canada.
The Supreme Court of Canada granted leave to appeal in April 2013.
AMERICAN EXPRESS: Parties Can Appeal Rulings in "Marcotte" Suit
---------------------------------------------------------------
In its July 29, 2013 Form 10-Q report filed with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2013, American Express Company disclosed that the Supreme
Court of Canada in April 2013 granted Amex Bank of Canada leave to
appeal rulings in the so-called "Marcotte" lawsuit.
In May 2006, in the matter captioned Marcotte v. Bank of Montreal,
et al., filed in the Superior Court of Quebec, District of
Montreal (originally filed in April 2003), the Superior Court
authorized a class action against Amex Bank of Canada, Bank of
Montreal, Toronto-Dominion Bank, Royal Bank of Canada, Canadian
Imperial Bank of Commerce, Scotiabank, National Bank of Canada,
Laurentian Bank of Canada and Citibank Canada. The action alleges
that conversion commissions made on foreign currency transactions
are credit charges under the Quebec Consumer Protection Act (the
"QCPA") and cannot be charged prior to the 21-day grace period
under the QCPA. The class includes all persons residing in Quebec
holding a credit card issued by one of the defendants to whom fees
were charged since April 17, 2000, for transactions made in
foreign currency before expiration of the period of 21 days
following the statement of account. The class claims reimbursement
of all foreign currency conversions, C$400 per class member for
trouble, inconvenience and punitive damages, interest and fees and
costs. The trial in the Marcotte action commenced in September
2008 and was completed in November 2008.
The Superior Court rendered a judgment in favor of the plaintiffs
against Amex Bank of Canada on June 11, 2009, and awarded damages
in the amount of approximately C$8.3 million plus interest on the
QCPA claims and individual claims to be made on the non-disclosure
claims. In addition, the Superior Court awarded punitive damages
in the amount of C$25.00 per cardmember. The judgment has been
appealed by all banks, including Amex Bank of Canada.
On August 2, 2012, the Court of Appeal overturned the decision
against Amex Bank of Canada and certain of the other co-
defendants. The remaining co-defendants and the plaintiffs filed
leave to appeal to the Supreme Court of Canada. The Supreme Court
of Canada granted leave to appeal in April 2013.
AMERICAN EXPRESS: Files Bid to Arbitrate Merchants' Claims
----------------------------------------------------------
In its July 29, 2013 Form 10-Q report filed with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2013, American Express Company disclosed that it has
moved to compel arbitration of certain merchants' claims in In re
American Express Merchants' Litigation, following a June 20, 2013
decision by the U.S. Supreme Court.
During the last few years as regulatory interest in credit card
network pricing to merchants and related issues has increased, the
Company has responded to many inquiries from banking and
competition authorities throughout the world.
On October 4, 2010, the U.S. Department of Justice, along with
Attorneys General from Connecticut, Iowa, Maryland, Michigan,
Missouri, Ohio and Texas, filed a complaint in the U.S. District
Court for the Eastern District of New York against the Company,
MasterCard International Incorporated and Visa, Inc., alleging a
violation of Section 1 of the Sherman Antitrust Act. The complaint
alleges that the defendants' policies prohibiting merchants from
steering a customer to use another network's card, another type of
card or another method of payment ("anti-steering" and "non-
discrimination" rules and contractual provisions) violate the
antitrust laws. The complaint alleges that the defendants
participate in two distinct markets, a "General Purpose Card
network services market" and a "General Purpose Card network
services market for merchants in travel and entertainment ("T&E")
businesses." The complaint contends that each of the defendants
has market power in the alleged two markets. The complaint seeks
a judgment permanently enjoining the defendants from enforcing
their anti-steering and non-discrimination rules and contractual
provisions. The complaint does not seek monetary damages.
Concurrent with the filing of the complaint, Visa and MasterCard
announced they had reached an agreement settling the allegations
in the complaint against them by agreeing to modifications in
their rules prohibiting merchants that accept their cards from
steering customers to use another network's card, another type of
card or another method of payment. In December 2010, the complaint
filed by the DOJ and certain state attorneys general was amended
to add as plaintiffs the Attorneys General from Arizona, Hawaii
(Hawaii has since withdrawn its claim), Idaho, Illinois, Montana,
Nebraska, New Hampshire, Rhode Island, Tennessee, Utah and
Vermont. American Express' response to the amended complaint was
filed in early January 2011.
The DOJ matter is being coordinated with individual and putative
class actions pending in the Eastern District of New York against
American Express brought by merchants alleging that the Company's
"anti-steering" provisions in its merchant acceptance agreements
with the plaintiffs violate federal antitrust laws. As alleged by
the plaintiffs, these provisions prevent merchants from offering
consumers incentives to use alternative forms of payment when
consumers wish to use an American Express-branded card. Plaintiffs
seek damages and injunctive relief.
In addition to the merchant cases being coordinated with the DOJ
and other state actions, since July 2003, the Company has been
named in a number of putative class actions in which the
plaintiffs allege an unlawful antitrust tying arrangement between
certain of the Company's charge cards and credit cards in
violation of various state and federal laws. These cases have all
been consolidated in the United States District Court for the
Southern District of New York under the caption: In re American
Express Merchants' Litigation. A case making similar allegations
was also filed in the Southern District of New York in July 2004
captioned: The Marcus Corporation v. American Express Company, et
al. The Marcus case is not consolidated.
The plaintiffs in these actions seek injunctive relief and an
unspecified amount of damages. Since April 2004, the parties to
the consolidated actions have been engaged in motion practice
regarding American Express' motion to dismiss the consolidated
actions on the grounds that all of the plaintiffs' claims are
subject to arbitration.
On February 1, 2012, the Second Circuit again reversed the
District Court's decision ordering arbitration, and reaffirmed its
prior ruling. On May 29, 2012, the Second Circuit denied the
Company's petition for rehearing en banc with dissents. The
Second Circuit stayed the mandate pending the outcome of the
Company's petition for a writ of certiorari to the U.S. Supreme
Court.
On June 20, 2013, the Supreme Court reversed the Second Circuit's
decision and held that the arbitration provision governed
plaintiffs' claims. The case will be remanded for further
proceedings.
Following the Supreme Court's June 20 decision in In re American
Express Merchants' Litigation, the partial stay of the putative
class actions was lifted and the Company moved to compel
arbitration of certain merchants' claims.
In October 2007, The Marcus Corporation filed a motion seeking
certification of a class. In September 2008, American Express
moved for summary judgment seeking dismissal of The Marcus
Corporation's complaint, and The Marcus Corporation cross-moved
for partial summary judgment on the issue of liability. In March
2009, the Court denied the plaintiffs' motion for class
certification, without prejudicing their right to remake such a
motion upon resolution of the pending summary judgment motions.
In February 2009, an amended complaint was filed in In re American
Express Merchants' Litigation. The amended complaint contains a
single count alleging a violation of federal antitrust laws
through an alleged unlawful tying of: (a) corporate, small
business and/or personal charge card services; and (b) Blue,
Costco and standard GNS credit card services.
In addition, in February 2009, a new complaint making the same
allegations as made in the amended complaint filed in In re
American Express Merchants' Litigation was also filed in the
United States District Court for the Southern District of New
York. That new case is captioned Greenporter LLC and Bar Hama LLC,
on behalf of themselves and all others similarly situated v.
American Express Company and American Express Travel Related
Services Company, Inc. Proceedings in the Greenporter action and
on the amended complaint filed in In re American Express
Merchants' Litigation have been held in abeyance pending the
disposition of the motions for summary judgment in the Marcus
case.
In September 2001, Hoffman, et al. v. American Express Travel
Related Services Company, et al. was filed in the Superior Court
of the State of California, Alameda County. Plaintiffs in that
case claim that American Express erroneously charged Cardmember
accounts in connection with its airflight insurance programs
because in certain circumstances customers must request refunds,
as disclosed in materials for the voluntary program. In January
2006, the Court certified a class of American Express charge
Cardmembers asserting claims for breach of contract and conversion
under New York law, with a subclass of California residents
asserting violations of California Business & Professions Code
Sections 17200 and 17500, and a subclass of New York residents
asserting violation of New York General Business Law Sec. 349.
American Express was granted judgment on all counts following
trial and that judgment was affirmed by the Court of Appeal for
California on December 17, 2012. Plaintiffs' petition to the
California Supreme Court for review was denied.
ANADARKO PETROLEUM: Texas Court Trims Shareholders' Class Suit
--------------------------------------------------------------
A federal district court in Texas in July 2013 dismissed claims
relating to all but one of the alleged misstatements asserted in a
complaint against Anadarko Petroleum Corporation, and gave the
plaintiffs 30 days to seek leave to amend the complaint to attempt
to rehabilitate the claims that were dismissed, according to
Anadarko's July 29, 2013 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarterly period ended June 30,
2013.
Two separate class action complaints were filed in June and August
2010, in the U.S. District Court for the Southern District of New
York (New York District Court) on behalf of purported purchasers
of the Company's stock between June 9, 2009, and June 12, 2010,
against Anadarko and certain of its officers. The complaints
allege causes of action arising pursuant to the Securities
Exchange Act of 1934 for purported misstatements and omissions
regarding, among other things, the Company's liability related to
the Deepwater Horizon events.
In March 2012, the New York District Court granted the Lead
Plaintiff's motion to transfer venue to the U.S. District Court
for the Southern District of Texas - Houston Division (Texas
District Court).
In May 2012, the Texas District Court granted the defendants'
motion to transfer the consolidated action within the district to
Judge Keith P. Ellison. In July 2012, the plaintiffs filed their
First Amended Consolidated Class Action Complaint. The defendants
filed a renewed motion to dismiss in the Texas District Court in
September 2012.
In July 2013, the Texas District Court dismissed the claims
relating to all but one of the alleged misstatements asserted in
the plaintiffs' complaint. The Texas District Court has given the
plaintiffs 30 days to seek leave to amend the complaint to attempt
to rehabilitate the claims that were dismissed.
BARNES & NOBLE: "Nguyen" Class Action Remains Stayed
----------------------------------------------------
Kevin Khoa Nguyen, an individual, on behalf of himself and all
others similarly situated v. Barnes & Noble, Inc., remains stayed,
according to the Company's July 29, 2013 Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
April 27, 2013.
On April 17, 2012, a complaint was filed in the Superior Court for
the State of California against the Company. The complaint is
styled as a nationwide class action and includes a California
state-wide subclass based on alleged cancellations of orders for
HP TouchPad Tablets placed on the Company's website in August
2011. The lawsuit alleges claims for unfair business practices and
false advertising under both New York and California state law,
violation of the Consumer Legal Remedies Act under California law,
and breach of contract. The complaint demands specific performance
of the alleged contracts to sell HP TouchPad Tablets at a
specified price, injunctive relief, and monetary relief, but does
not specify an amount. The Company submitted its initial response
to the complaint on May 18, 2012, and moved to compel plaintiff to
arbitrate his claims on an individual basis pursuant to a
contractual arbitration provision on May 25, 2012.
The court denied the Company's motion to compel arbitration, and
the Company appealed that denial to the Ninth Circuit Court of
Appeals.
The Company filed its opening brief on the appeal on February 11,
2013. The answering brief was filed on April 13, 2013, and the
Company's reply brief was filed on May 23, 2013. The Company has
also moved to dismiss the complaint and moved to transfer the
action to New York. The court granted the Company's motion to stay
on November 26, 2012, and the action has been stayed pending
resolution of the Company's appeal from the court's denial of its
motion to compel arbitration.
BARNES & NOBLE: Consolidated Complaint Filed in PIN Pad Litigation
------------------------------------------------------------------
Following Barnes & Noble, Inc.'s public disclosure on October 24,
2012, of its discovery that PIN pads in certain of its stores had
been tampered with to allow criminal access to card data and PIN
numbers on credit and debit cards swiped through the terminals,
the Company was served with four putative class action complaints
(three in federal district court in the Northern District of
Illinois and one in the Northern District of California), each of
which alleged on behalf of national and other classes of customers
who swiped credit and debit cards in Barnes & Noble Retail stores
common law claims such as negligence, breach of contract and
invasion of privacy, as well as statutory claims such as
violations of the Fair Credit Reporting Act, state data breach
notification statutes, and state unfair and deceptive practices
statutes. The actions sought various forms of relief including
damages, injunctive or equitable relief, multiple or punitive
damages, attorneys' fees, costs, and interest.
According to the Company's July 29, 2013 Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
April 27, 2013, all four cases have now been transferred and/or
assigned to a single Judge in the United States District Court for
the Northern District of Illinois, and a single consolidated
amended complaint has been filed. The Company has filed a motion
to dismiss the consolidated amended complaint in its entirety.
Barnes & Noble said it is uncertain when the Court will render a
decision on that motion. It is possible that additional litigation
arising out of this matter may be commenced on behalf of
customers, banks or other card issuers, payment card companies or
stockholders seeking damages allegedly arising out of this
incident and other related relief.
The Company also has received inquiries related to this matter
from the Federal Trade Commission and eight state attorneys
general, all of which have either been closed or have not had any
recent activity, and the Company intends to cooperate with them if
further activity arises. In addition, payment card companies and
associations may impose fines by reason of the tampering and
federal or state enforcement authorities may impose penalties or
other remedies against the Company.
At this point the Company is unable to predict the developments
in, outcome of, and economic and other consequences of pending or
future litigation or state and federal inquiries related to this
matter.
BARNES & NOBLE: "Torrez" Plaintiff Wants Dec. Complaint Dismissed
-----------------------------------------------------------------
Barnes & Noble, Inc., disclosed in its July 29, 2013 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended April 27, 2013, that the plaintiff in the
action, Dustin Torrez, an individual, on behalf of himself and all
others similarly situated v. Barnes & Noble, Inc., has filed a
request that the action filed in December 2011 be dismissed with
prejudice.
On October 11, 2011, the complaint was first filed in the Superior
Court for the State of California against the Company. The
complaint is styled as a California state-wide class action. It
alleges violations of California Civil Code section 1747.08 (the
Song-Beverly Credit Card Act of 1971) due to the Company's alleged
improper requesting and recording of zip codes from California
customers who used credit cards as payment. The complaint was re-
filed in the Superior Court for the State of California on
December 23, 2011 as a separate action. The Summons and Complaint
have not been served on the Company for either action.
On February 10, 2012, the plaintiff filed a request that the
action filed in December be dismissed with prejudice.
BARNES & NOBLE: "Lina" Suit in Pre-Certification Discovery
----------------------------------------------------------
Barnes & Noble, Inc., disclosed in its July 29, 2013 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended April 27, 2013, that in the action, Lina v.
Barnes & Noble, Inc., and Barnes & Noble Booksellers, Inc. et al.,
the parties are currently engaged in pre-certification discovery.
On August 5, 2011, a purported class action complaint was filed
against Barnes & Noble, Inc. and Barnes & Noble Booksellers, Inc.
in the Superior Court for the State of California making the
following allegations against defendants with respect to salaried
Store Managers at Barnes & Noble stores located in the State of
California from the period of August 5, 2007 to present: (1)
failure to pay wages and overtime; (2) failure to pay for missed
meal and/or rest breaks; (3) waiting time penalties; (4) failure
to pay minimum wage; (5) failure to provide reimbursement for
business expenses; and (6) failure to provide itemized wage
statements. The claims are generally derivative of the allegation
that these salaried managers were improperly classified as exempt
from California's wage and hour laws. The complaint contains no
allegations concerning the number of any such alleged violations
or the amount of recovery sought on behalf of the purported class.
The Company was served with the complaint on August 11, 2011.
The state court has set the following certification motion
schedule: Lina's motion for class certification is due August 12,
2013, Barnes & Noble's opposition is due October 11, 2013, and
plaintiff's reply is due November 25, 2013. The hearing date for
the certification motion is December 11, 2013. No trial date has
been set.
BARNES & NOBLE: Files Answer in "Jones" Class Action
----------------------------------------------------
On April 23, 2013, Kenneth Jones (Jones) filed a purported Private
Attorney General Act (PAGA) action complaint against Barnes &
Noble, Inc. and Barnes & Noble Booksellers, Inc. in the Superior
Court for the State of California making the following allegations
against defendants with respect to salaried Store Managers at
Barnes & Noble stores located in the State of California: (1)
failure to pay wages and overtime; (2) failure to pay for missed
meal and/or rest breaks; (3) waiting time penalties; (4) failure
to pay minimum wage; (5) failure to provide reimbursement for
business expenses; and (6) failure to provide itemized wage
statements.
The claims are generally derivative of the allegation that Jones
and other "aggrieved employees" were improperly classified as
exempt from California's wage and hour laws. The complaint
contains no allegations concerning the number of any such alleged
violations or the amount of recovery sought on behalf of the
plaintiff or the purported aggrieved employees.
Barnes & Noble disclosed in its July 29, 2013 Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended April 27, 2013, that the case was initially assigned to
the Honorable Barbara Scheper. Because the underlying factual
claims in the Jones complaint are almost identical to the claims
in the Lina v. Barnes & Noble action, Barnes & Noble filed a
Notice of Related Case on May 1, 2013. On May 7, 2013, Judge
Michael Johnson (before whom the Lina action is pending) ordered
the Jones action related to the Lina action and assigned the Jones
action to himself. The Company was served with the complaint on
May 16, 2013, and filed an answer on June 10, 2013.
BARNES & NOBLE: "Trimmer" Suit in First Phase of Discovery
----------------------------------------------------------
On January 25, 2013, Steven Trimmer (Trimmer), a former Assistant
Store Manager (ASM) of Barnes & Noble, Inc., filed a complaint in
the United States District Court for the Southern District of New
York alleging violations of the Fair Labor Standards Act (FLSA)
and New York Labor Law (NYLL). Specifically, Trimmer alleges that
he and other similarly situated ASMs were improperly classified as
exempt from overtime and denied overtime wages prior to July 1,
2010, when the Company reclassified them as non-exempt. The
complaint seeks to certify a collective action under the FLSA
comprised of ASMs throughout the country employed from January 25,
2010 until July 1, 2010, and a class action under the NYLL
comprised of ASMs employed in New York from January 25, 2007 until
July 1, 2010.
Barnes & Noble disclosed in its July 29, 2013 Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended April 27, 2013, that the parties are currently engaged
in discovery with respect to the individual claims asserted by
Trimmer and one opt-in plaintiff only. The Court has stayed all
class-wide discovery at this point. The parties have until
August 30, 2013 to complete this first phase of discovery.
BARRICK GOLD: Labaton Sucharow Files Class Action in New York
-------------------------------------------------------------
Labaton Sucharow LLP filed a class action lawsuit on August 2,
2013 in the U.S. District Court for the Southern District of New
York. The lawsuit was filed on behalf of persons or entities who
purchased the publicly-traded common stock of Barrick Gold
Corporation on the New York Stock Exchange between May 7, 2009 and
May 23, 2013, inclusive.
The action charges Barrick and certain of its officers and
directors with violations of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, and Rule 10b-5 promulgated
thereunder. The complaint alleges that, throughout the Class
Period, Barrick made false and misleading statements, and
concealed material information relating to the cost and time-to-
production projections for the Company's Pascua-Lama Project, a
property under development as an open-pit gold and silver mine
that straddles the mountainous border between Chile and Argentina.
Barrick, which is based in Toronto, Canada, is one of the world's
largest gold mining companies in terms of production, reserves and
market value. The complaint alleges that, during the Class
Period, Barrick concealed from shareholders that: (1) the costs of
bringing Pascua-Lama into production far exceeded any of Barrick's
various publicly presented estimates; (2) Pascua-Lama would not
come into production within any of Barrick's various publicly
presented time horizons; (3) Pascua-Lama was not in compliance
with key elements of its environmental protection program,
imperiling the survival of the entire Project; and (4) as a
result, Defendants had no reasonable basis for their statements
regarding the cost, timing, and production estimates for the
Project, the Company's compliance with environmental rules and
regulations, or the reserves and earnings guidance for the
Company.
The truth about the Pascua-Lama Project was revealed on April 10,
2013, when news media reported that the Appeals Court of Copiapo,
Chile, had issued an order suspending work on Pascua-Lama. In
reaction to this news, Barrick's stock price fell $2.23 per share,
or 8.3%, to close at $24.46 per share on trading volume of more
than 40 million shares.
Then, on May 24, 2013, Chile's Environmental Superintendent
(Superintendencia del Medio Ambiente) issued a resolution
suspending the Project pending compliance with an environmental
permit, and imposing a fine equivalent to $16 million -- the
maximum penalty possible under Chilean law. In response to this
development, trading in Barrick stock was halted for approximately
three hours. After the Company's shares resumed trading,
Barrick's share price closed at $19.16 per share, $0.39 per share,
or 1.99%, below the prior day's close.
If you are a member of this Class you can view a copy of the
complaint and join this class action online at
http://www.labaton.com/en/cases/Newly-Filed-Cases.cfm
If you purchased Barrick common stock on the New York Stock
Exchange during the Class Period, you may be able to seek
appointment as Lead Plaintiff. Lead Plaintiff motion papers must
be filed with the U.S. District Court for the Southern District of
New York no later than August 5, 2013. A lead plaintiff is a
court-appointed representative for absent Class members. You do
not need to seek appointment as lead plaintiff to share in any
Class recovery in this action. If you are a Class member and
there is a recovery for the Class, you can share in that recovery
as an absent Class member. You may retain counsel of your choice
to represent you in this action.
If you would like to consider serving as lead plaintiff or have
any questions about the lawsuit, you may contact Rachel A. Avan,
Esq. of Labaton Sucharow LLP, at (800) 321-0476 or (212) 907-0709,
or via e-mail at ravan@labaton.com
Labaton Sucharow LLP -- http://www.labaton.com-- is a law firm
that represents institutional investors in class action and
complex securities litigation, as well as consumers and businesses
in class actions seeking to recover damages for anticompetitive
practices. The Firm has been a champion of investor and consumer
rights for nearly 50 years, seeking recovery of current losses and
necessary governance reforms to protect investors and consumers.
Labaton Sucharow has been recognized for its excellence by the
courts and its peers. It has offices in New York, New York and
Wilmington, Delaware.
BC HYDRO: Campbell River Couple Joins Smart Meter Class Action
--------------------------------------------------------------
Kristen Douglas, writing for Campbell River Mirror, reports that a
Campbell River couple has joined a lawsuit against BC Hydro after
the utility threatened to cut off their power if they did not
consent to having a smart meter installed on their home.
Ron and Nan Latchford have joined a class action lawsuit brought
forward by Salt Spring Island resident Nomi Davis who said her
analog meter was replaced last year by a smart meter in a
deceptive fashion.
According to a video Ms. Davis posted on Youtube, she was promised
by a representative from Corix, which has been installing the new
meters, that her meter would have the radio switched off. But
immediately after the meter was installed, a friend was able to
measure electromagnetic frequencies coming from the smart meter
every five seconds -- some from 40 feet away.
The Latchfords signed onto Ms. Davis' lawsuit on April 30, but the
papers were just filed to B.C. Supreme Court on July 25.
The suit demands that BC Hydro remove unwanted smart meters, that
BC Hydro stop installing the devices without the consent of the
home owner, that BC Hydro be prohibited from declining to sell
power to properties who don't want the meters, and that the power
corporation be restrained from accepting payments in exchange for
not having a smart meter.
Nan Latchford said the lawsuit is about rights and freedom.
"We feel our civil rights are being ignored by not giving us a
choice and not giving us the freedom to have our homes free of an
intrusion of a radiating device that BC Hydro wants to put on our
homes and keep track of every little step we take by recording our
power usage in a manner that you can detect whether we're home,
whether we're not at home, whether we're on vacation and if we are
at home, what we do at home," Mrs. Latchford said.
Ted Olynyk, spokesperson for BC Hydro, told Strathcona Regional
District directors last year that many of the concerns people have
about smart meters are based on false information.
"The Internet is a great place for information, but not all of it
is correct information," he said. "There's misinformation out
there that BC Hydro will know who you have over for dinner, when
you're eating dinner . . . because of smart meters."
Mr. Olynyk also tried to lay to rest fears over emissions, noting
the radiation levels from smart meters are so low that public
places with Wi-fi pose potentially greater health risk than having
a smart meter. But Mrs. Latchford, who has a steel cable around
her analog meter and a sign asking Corix to please not install a
smart meter, doesn't buy it.
Mrs. Latchford claims she knows someone with a health condition
who has been advised by her doctor to stay away from wireless
devices such as smart meters because they could prompt a stroke.
Mrs. Latchford said after she and her husband told Hydro last
summer that they wanted to opt out of smart meters, the utility
wrote her an e-mail, dated September 2012, which warned them that,
"any obstruction or interference with the installation of the
smart meter . . . could subject you to penalty and to the
disconnection of your electrical service."
The Latchfords then sent a final refusal notice to BC Hydro early
this year that they would not accept a smart meter. So far, they
have not heard back.
Since then, Energy Minister Bill Bennett has announced an opt-out
program which includes having the meter, but with the radio turned
off or keeping the analog meter, but with an extra monthly charge
for meter readings.
Mrs. Latchford said Mr. Bennett's opt out is "a farce" and there's
no way to know if the radio is actually turned off, as what
happened to Davis on Salt Spring Island.
BC Hydro reports that 96 per cent of its customers have already
switched over to smart meters and 1.8 million are in use across
the province.
The utility maintains that the smart meters will allow the
corporation to get the lights back on faster in the event of a
power outage because the meters will alert BC Hydro immediately of
an outage.
Hydro said the devices will also allow customers to save money on
their hydro bills because the meters allow customers to see their
daily energy use and make adjustments as necessary.
BMW OF NORTH AMERICA: Faces "Curran" Suit Over Timing Chains
------------------------------------------------------------
Patricia Curran, on behalf of herself and all others similarly
situated v. BMW of North America, LLC, a Delaware limited
liability company; BMW (U.S.) Holding Corp., a Delaware
corporation; and Ba Yerische Motoren Werke Aktiengesellschaft, a
foreign corporation, Case No. 2:13-cv-04625-WHW-CLW (D. N.J.,
July 31, 2013) arises in connection with a potentially fatal
defect in model year 2007 through 2009 MINI Cooper R56 (commonly
known as Cooper Hardtop), and model year 2008 through 2009 MINI
Cooper R55 (commonly known as Cooper Clubman) with an N12 or N14
engine.
The Plaintiff asserts she brings this lawsuit on behalf of herself
and all others similarly situated, asserting breach of express and
implied warranty, violation of the Magnuson-Moss Act, unjust
enrichment, negligence, false and deceptive advertising, violation
of California's Consumer Legal Remedies Act, among other
violations, in connection with the Defendants' sales of MINI
vehicles containing the defectively designed and manufactured
Timing Chain Tensioner and Timing Chain System. Although this
defect in design and manufacturing existed at the time the
Defendants placed the Class Vehicles into the stream of commerce,
the Plaintiff alleges that the Defendants have refused to honor
warranties and have required her and Class members to repair these
defects at their own expense.
Patricia Curran is a resident of San Francisco, California. In
September 2007, she purchased a new 2007 MINI Cooper R56 from Mini
in San Francisco. She purchased her Class Vehicle for personal,
family, and household use and paid approximately $23,200.
BMW N.A. is a Delaware limited liability company with its
principal place of business in Woodcliff Lake, New Jersey. At all
times relevant, BMW N.A. warranted the Class Vehicles against
defects in materials and workmanship to the first retail purchaser
and each subsequent purchaser. BMW AG is a foreign corporation
organized and existing under the laws of the Federal Republic of
Germany with its principal place of business in Munich. At all
times relevant, BMW AG transacted business in the state of New
Jersey by assembling, marketing, selling and warranting, inter
alia, Class Vehicles within this District. BMW (U.S.) Holding is
Delaware corporation headquartered in Woodcliff Lake, New Jersey.
BMW (U.S.) Holding is a subsidiary of BMW AG and operates as its
sales and distribution headquarters for North America.
The Plaintiff is represented by:
Bryan L. Clobes, Esq.
Kelly L. Tucker, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
1101 Market Street, Suite 2650
Philadelphia, PA 19107
Telephone: (215) 864-2800
Facsimile: (215) 864-2810
E-mail: bclobes@caffertyclobes.com
ktucker@caffertyclobes.com
- and -
Anthony F. Fata, Esq.
Daniel O. Herrera, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
30 N. LaSalle, Suite 3200
Chicago, IL 60602
Telephone: (312) 782-4880
Facsimile: (312) 782-4885
E-mail: afata@caffertyclobes.com
dherrera@caffertyclobes.com
BRIAD RESTAURANT: Settles Alcoholic Beverage Control Violations
---------------------------------------------------------------
Michael Booth, writing for New Jersey Journal, reports that a
T.G.I. Friday's franchisee has agreed to pay $500,000 to settle
New Jersey state regulators' claims that it sold cheap liquor
masquerading as high-end brands.
Briad Restaurant Group, of Livingston, will not contest
allegations that it violated Division of Alcoholic Beverage
Control rules, acting Attorney General John Hoffman said on
July 31 in announcing the settlement.
"Briad's restaurants were scamming customers by serving them a
cheap substitute for what they ordered," said Mr. Hoffman. "This
fine should send a clear message to every bar and restaurant
throughout New Jersey that customers should get what they pay for
every time without exception."
As part of a statewide investigation dubbed "Operation Swill," ABC
and Division of Criminal Justice investigators raided 13 T.G.I.
Friday's franchises owned by Briad and seized about 250 bottles of
alcohol.
Eight of those establishments -- located in West Orange, East
Windsor, Old Bridge, Piscataway, Freehold, Marlboro, Hazlet and
Linden -- were charged with violating ABC regulations and are
included in the settlement.
Of the total amount Briad is to pay, $400,000 is in penalties and
$100,000 is for investigative costs.
Briad agreed to employ an ABC-appointed monitor through June 30,
2014. The monitor will have the full cooperation of Briad's
restaurants and its employees as well as access to all books,
records, compensation programs and any other information the
monitor deems appropriate. The compliance officer will then
report his findings to the ABC. In addition, Briad will make
internal changes that include updating employee training and
inventory software.
Additionally, a five-day suspension for each establishment will be
held in abeyance until June 30, 2014. Those suspensions will be
dismissed if there are no further drink-substituting charges.
In May, investigators raided 29 bars and restaurants as part of
Operation Swill. The investigation had revealed that those 29
establishments were allegedly engaging in a practice of filling
premium brand bottles with nonpremium brands in an effort to
deceive the customer and increase their profits, the ABC says.
The customer paid for the premium brand but was instead poured the
nonpremium brand. Approximately 1,000 bottles were confiscated
during the enforcement action.
Those 29 bars and restaurants were targeted because of information
supplied by confidential informants and consumer complaints.
Undercover investigators visited 63 establishments in January and
February and covertly took approximately 150 samples. Drinks were
ordered by the undercover investigators as "neat," with no ice,
water or other mixer, and then tested in a lab.
Class Action in the Offing
On May 24, two days after the state's raids, two Monmouth County
residents filed a putative class-action suit in Mercer County
Superior Court against Briad Restaurant Group.
The plaintiffs, Kristi Pasieka and Nicole Ruglio, are seeking to
represent an estimated class of more than 5,000 people who,
between May 22, 2012, and May 22, 2013, ordered and were charged
for premium liquors at any one of the raided T.G.I. Friday's.
The suit, Pasieka v. Briad Restaurant Group, MER-L-1151-13,
alleges that the franchisee runs its establishments according to a
uniform set of procedures and policies, including a "concerted and
deliberate policy . . . to inflate its profits from liquor sales
by charging customers premium prices for allegedly premium liquor
and then substituting a cheaper, cut-rate brand for the premium
liquor brand ordered by the customer."
The lawsuit says that since investigators found the same practice
occurring at multiple franchise locations on more than one
occasion, and after several rounds of tests, the brand switches
were not the work of a rogue bartender or bar manager, "but rather
was a common course of conduct and uniform policy implemented by
the Briad Group" and consistently followed at all of the raided
locations.
Both named plaintiffs claim they were scammed at the T.G.I.
Friday's in Hamilton. Ms. Pasieka says she bought a purported
Grey Goose vodka in March 2013, while Ms. Ruglio claims she
purchased what she thought was Cuervo Gold Tequila on one visit
and Kettle One Vodka on another.
They allege the uniform policy or common course of conduct
constituted an unconscionable commercial practice under the
Consumer Fraud Act and that they each suffered an ascertainable
loss, as required by the statute: the difference between the
premium price they paid and the lesser value of the cut-rate
liquor they were served.
The suit, assigned to Judge Darlene Pereksta, seeks reimbursement,
treble damages and legal fees.
The plaintiffs' lawyer, Stephen DeNittis --
sdenittis@denittislaw.com -- of DeNittis Osefchen in Marlton, was
away from his office on July 31 and could not be reached for
comment.
He told the Law Journal after the suit was filed that an estimate
of a 5,000-member class was a "conservative" number and added that
he would be open to extending the class period if he obtains
information indicating the practice went on longer than one year.
T.G.I. Friday's issued a statement through a public relations
agency. "We are satisfied that this settlement brings the issue
to a close," the statement says. "Briad has recommitted to
ensuring that all of its restaurants operate in accordance with
our extensive bar and beverage practices and the high standards
and values of the T.G.I. Friday's brand."
Briad issued a separate statement through another PR firm:
"Throughout the investigative process, we fully cooperated with
the New Jersey ABC. We will continue to cooperate with New Jersey
ABC moving forward. In addition to the settlement, we have also
made operational adjustments, initiated new training programs and
redoubled our efforts to ensure that all of our restaurants adhere
to Friday's extensive bar and beverage standards. We believe
these actions will result in even higher customer satisfaction and
a strengthened level of trust."
CARBO CERAMICS: Securities Suit Dismissed in June
-------------------------------------------------
A federal securities lawsuit against Carbo Ceramics Inc. and
certain of its officers was dismissed in June 2013, according to
the Company's July 29, 2013 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2013.
On February 9, 2012, the Company and two of its officers, Gary A.
Kolstad and Ernesto Bautista III, were named as defendants in a
purported class-action lawsuit filed in the United States District
Court for the Southern District of New York (the "February SDNY
Lawsuit"), brought on behalf of shareholders who purchased the
Company's Common Stock between October 27, 2011 and January 26,
2012 (the "Relevant Time Period"). On April 10, 2012, a second
purported class-action lawsuit was filed against the same
defendants in the United States District Court for the Southern
District of New York, brought on behalf of shareholders who
purchased or sold CARBO Ceramics Inc. option contracts during the
Relevant Time Period (the "April SDNY Lawsuit", and collectively
with the February SDNY Lawsuit, the "Federal Securities Lawsuit").
In June 2012, the February SNDY Lawsuit and the April SDNY Lawsuit
were consolidated, and will now proceed as one lawsuit. The
Federal Securities Lawsuit alleges violations of the federal
securities laws arising from statements concerning the Company's
business operations and business prospects that were made during
the Relevant Time Period and requests unspecified damages and
costs.
In September 2012, the Company and Messrs. Kolstad and Bautista
filed a motion to dismiss this lawsuit. The motion to dismiss was
granted, and the Federal Securities Lawsuit was dismissed without
prejudice in June 2013.
CITIGROUP INC: Judge Approves $590MM Class Action Settlement
------------------------------------------------------------
Patricia Hurtado, writing for Bloomberg News, reports that
Citigroup Inc. won court approval to pay $590 million to resolve a
lawsuit by shareholders alleging the third-largest U.S. bank hid
risks tied to toxic assets.
U.S. District Judge Sidney Stein in Manhattan on Aug. 1 also
awarded the plaintiffs' lead lawyers fees of $70.8 million, or 12
percent of the fund, as well as $2.8 million in expenses.
"This is a sizeable award that rewards counsel for years of
excellent work," Judge Stein said in his ruling.
Judge Stein last August gave preliminary approval to the
settlement of a 2007 suit filed by investors in collateralized
debt obligations, which are pools of assets such as mortgage bonds
packaged into new securities. The investors accused New York-
based Citigroup of repackaging unmarketable financial instruments
and selling them to itself to hide its exposure to the securities.
The judge said that the bank's public statements "painted a
misleading portrait of Citigroup as relatively safe from the
market's concerns about potential losses resulting from falling
CDO values."
The class-action, or group, suit was brought on behalf of
investors who bought Citigroup common stock from Feb. 26, 2007,
through April 18, 2008. The shares fell more than 50 percent in
the period, according to data compiled by Bloomberg.
"We are pleased to put this matter behind us," Shannon Bell, a
Citigroup spokeswoman, said in an e-mail.
Ira Press -- ipress@kmllp.com -- a lawyer for Kirby McInerney LLP,
the firm serving as lead counsel for the plaintiffs, didn't
immediately return a voice-mail message seeking comment on Stein's
ruling.
The case is In re Citigroup Inc. Securities Litigation, 07-cv-
9901, U.S. District Court, Southern District of New York
(Manhattan).
CITIGROUP INC: $100.3-Mil. Class Counsel Fee Request Challenged
---------------------------------------------------------------
Ted Frank, an adjunct fellow at the Manhattan Institute Center for
Legal Policy, in an article for PointofLaw.com, says that the
$100.3 million fee request by class counsel in In re Citigroup
Securities Litigation was appalling:
* Defendant Citigroup pays $25/hour to contract attorneys
doing document review. Class counsel wanted an average of
$466/hour with a 1.9 multiplier (i.e., about $900/hour) for their
work.
* Remarkably, 15% of class counsel's lodestar came from paper-
shuffling work done after the case had settled, pure makework at
zero risk to inflate the lodestar, much of which was done by newly
hired contract attorneys. Mr. Frank said "We didn't learn this
until we got partial discovery nearly three months after the
original objection deadline.
* Too, the makework was done ludicrously inefficiently, with
hundreds of hours billed to one-day deposition summaries.
* Another $4 million was billed for fights between class
counsel for who would represent the class.
The district court was having none of this, and sliced the
lodestar in half. Unfortunately, what the court took away with
one hand, the court gave partially back with the other: he
proceeded to approve a multiplier of 2.8, higher than class
counsel originally requested, so the fees were only cut $26.7
million. The court also chose to reject the overwhelming evidence
that, in the relevant legal market, clients don't accept huge
markups for contract attorneys doing document review, and
permitted a $200/hour lodestar for that work. This, combined with
the multiplier, means that class members were paying $560/hour for
document review work, more than 22 times as much as the $25/hour
that their adversary was paying. The court excused this by saying
that Citigroup has market power to negotiate rates down -- but
surely, a client holding out the prospect of tens of thousands of
hours contract attorney work has nearly as much market power to
get the rate below a 2000% markup.
Moreover, a 2.8 multiplier makes no sense in the PSLRA context.
Once a plaintiff survives a motion to dismiss, over 80% of cases
settle and pay at least full lodestar. A multiplier half of 2.8
would be more than sufficient to induce qualified attorneys to
litigate a securities case -- even aside from the fact that the
Supreme Court has suggested that multipliers greater than 1 are
inappropriate except in exceptional circumstances.
Of greater concern is that the only repercussions class counsel
suffered for what was essentially a fraud upon the court and their
clients was to be awarded the same amount as if they hadn't
engaged in bill-padding or failed to disclose the use of contract
attorneys. What incentive will future class counsel have not to
engage in the same shenanigans? Heads class counsel wins and rip
their clients off by tens of millions of dollars; tails is a do-
over. In Las Vegas, that's called playing with house money.
"Still, CCAF is happy to have won tens of millions of dollars for
class members; we'll evaluate whether we want to raise these legal
questions on appeal; we'll certainly raise them on a cross-appeal
if class counsel challenges the reduction, Mr. Frank said.
Of substantial note: class counsel defended their fee request
excesses by saying everyone does it. And, as Lester Brickman
documented in Lawyer Barons, everyone does do it, meaning that
shareholders are getting ripped off by hundreds of millions, and
perhaps billions, of dollars. Where are the pension funds and
hedge funds and class representatives with fiduciary duties?
Perhaps it doesn't make sense for just one to bear the burden of
challenging fee awards (though had a for-profit firm taken up my
offer to represent me on a contingent-fee basis in this case, they
could be petitioning the court for a seven-figure award right
now), but surely a consortium could ensure that every fee request
in a mega-case gets scrutiny that could save shareholders tens of
millions of dollars a case. It's precisely because so few of
these get challenged or even scrutinized that class counsel
thought they could get away with such blatant abuses. There needs
to be more than just Ted Frank challenging these abuses if they're
going to stop.
"Relatedly, this case absolutely proves my stop whining about the
legal job market point. Get three friends together, find a single
pension fund or hedge fund, and offer to take up fee scrutiny on a
contingent fee basis. Win one case a year, and you'll be making
more money than me. And there's no reason you shouldn't win more
than one case a year given how rampant these abuses are,"
Mr. Frank said.
CORINTHIAN COLLEGES: August 19 Lead Plaintiff Deadline Set
----------------------------------------------------------
Pomerantz Grossman Hufford Dahlstrom & Gross LLP on Aug. 2
disclosed that it has filed a class action lawsuit against
Corinthian Colleges and certain of its officers. The class
action, filed in United States District Court, Southern District
of New York, and docketed under 13 CV 4308, is on behalf of a
class consisting of all persons or entities who purchased or
otherwise acquired securities of Corinthian between August 23,
2011 and June 10, 2013 both dates inclusive. This class action
seeks to recover damages against the Company and certain of its
officers and directors as a result of alleged violations of the
federal securities laws pursuant to Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
If you are a shareholder who purchased Corinthian securities
during the Class Period, you have until August 19, 2013 to ask the
Court to appoint you as Lead Plaintiff for the class. A copy of
the Complaint can be obtained at http://www.pomerantzlaw.com
To discuss this action, contact Robert S. Willoughby at
rswilloughby@pomlaw.com or 888-476-6529 (or 888-4-POMLAW), toll
free, x237. Those who inquire by e-mail are encouraged to include
their mailing address, telephone number, and number of shares
purchased.
Corinthian is a publicly traded, for-profit education company
headquartered in Santa Ana, CA. Corinthian operates a total of
105 campuses in 25 States, along with an online division, and
offers diploma and degree programs in health care, business,
criminal justice, transportation technology and maintenance,
construction trades, and information technology. Approximately
34% of Corinthian students are enrolled online, and 64% are
enrolled in diploma (non-degree) programs.
The Complaint alleges that throughout the Class Period, Defendants
made materially false and misleading statements regarding the
Company's business, operational and compliance policies.
Specifically, Defendants made false and/or misleading statements
and/or failed to disclose that: (i) defendants manipulated federal
student loan and grant programs in order to appear to be in
compliance with new federal regulations enacted in June 2011; (ii)
defendants' predatory and deceptive recruiting and enrollment
practices violated federal regulations enacted beginning in June
2011; and (iii) the Company engaged in systemic grade
falsification at the Company's campuses in order to appear to be
in conformance with the new regulations enacted beginning in 2011.
On June 10, 2013, the Company disclosed that the SEC was
conducting an investigation into the Company, and that the SEC has
requested documents and communications related to student
recruitment, attendance, completion, placement, and defaults on
loans, along with information on other corporate and financial
matters. On this news, Corinthian securities declined $0.32 per
share or nearly 11.47%, to close at $2.47 per share on June 11,
2013.
The Pomerantz Firm -- http://www.pomerantzlaw.com-- concentrates
its practice in the areas of corporate, securities, and antitrust
class litigation. It has offices in New York, Chicago, Florida,
and San Diego.
COUNTRY RIBBON: Recalls 2 Kg Salami and Pepperoni Products
----------------------------------------------------------
Starting date: August 1, 2013
Type of communication: Recall
Alert sub-type: Notification
Subcategory: Extraneous Material
Hazard classification: Class 2
Source of recall: Canadian Food Inspection
Agency
Recalling firm: Country Ribbon Inc.
Distribution: Newfoundland and Labrador
Extent of the product distribution: Retail,
Hotel/Restaurant/
Institutional
CFIA reference number: 8205
Affected products:
Brand name Common name Size Code(s) on product
---------- ----------- ---- -----------------
Country Ribbon Salami 2 kg Best Before: 2013AU22
Lot 427, Product codes
8205, 8207, 8209
Lot 428, Product code 8207
Country Ribbon Pepperoni 2 kg Best Before: 2013AU22
Lot 428, Product codes
8200, 8201, 8204
CYCLING SPORTS: Recalls Slice RS Bikes Due to Fall Hazard
---------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Cycling Sports Group Inc., Bethel Conn., announced a voluntary
recall of about 500 Cannondale Slice RS bicycles and framesets.
Consumers should stop using this product unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The brake plates can loosen and break, posing a fall hazard.
Cannondale received one report of a loose brake plate. No
injuries have been reported.
The recall includes all 2013 model year Cannondale triathlon and
time trial Slice RS bikes including the Black Edition, Ultegra and
Ultegra Di2 bicycles and framesets. The Black Edition bikes come
in black and the word Cannondale is in green on the top tube. The
Ultegra and Ultegra Di2 are white with red trim and the word
Cannondale is in black on the down tube of the bicycle. The
unusual brakes on the Slice RS models are mounted behind the front
fork and under the chainstay.
Pictures of the recalled products are available at:
http://is.gd/ExaYkI
The recalled products were manufactured in China and sold at
Cannondale retailers nationwide between October 2012 and June 2013
for between $5,500 and $11,000 for the bike and $4,500 for the
frameset.
Consumer should immediately stop using the recalled bicycles and
return the bike to a Cannondale retailer for a free repair, a
Cannondale Terramo helmet and Classic Jersey. Cannondale is
contacting its customers directly.
ELECTRONIC ARTS: Faces Class Action Over Online Play Halt
---------------------------------------------------------
Paul Lilly, writing for HotHardware, reports that there might not
be another company more reviled in the U.S. than Electronic Arts,
the games publisher that was chosen by Consumerist voters as
"Worst Company In America" for two years in a row. To its credit,
EA acknowledged the unwanted award and vowed to do a better job,
though angry gamers are still finding reason to despise and, in
some cases, even sue the company, with the latest lawsuit focused
on online play.
Justin Bassett is spearheading a federal class action lawsuit
against EA claiming he was duped by the company's promise of
online play. In the lawsuit, Mr. Bassett says he purchased
several sports titles for the Xbox 360 for around $60 based on
EA's representation that online play would be available
indefinitely or at least a reasonable time after a game's release.
"Had plaintiff known at the time that he would not be able to play
the products online for a certain amount of time, he would not
have purchased the products or paid the price he paid for the
products [. . . ] Despite knowing that it did not intend to
allocate resources for online play for the products indefinitely
or for a reasonable time from the release date, EA engaged in a
widespread marketing and advertising campaign to portray the
products as being for indefinite online play or, at a minimum, a
reasonable time from the release date," Mr. Bassett alleges in his
lawsuit.
Some of the games mentioned in the lawsuit include FIFA Soccer
2011 for PC, PlayStation 3, Wii, and Xbox 360; EA Sports Madden
NFL 10 for Xbox 360; EA Sports NCAA Football 10; EA Sports Tiger
Woods PGA Tour; EA Sports NHL 90; EA Sports Tiger Woods PGA Tour
90; and EA Sports NHL 08.
Mr. Bassett isn't really suggesting that EA keep its servers up
and running for older titles forever, but for those who don't
purchase a new version of a game each and every year, a
"reasonable time" would be nice, whatever that might be. Equally
important is that EA should disclaim exactly how long it plans to
maintain online play for a particular title.
FONTERRA COOPERATIVE: Botulism Scare Triggers Global Recall
-----------------------------------------------------------
Nick Perry, writing for The Associated Press, reports that
New Zealand authorities have triggered a global recall of up to
1,000 tons of dairy products across seven countries after dairy
giant Fonterra announced tests had turned up a type of bacteria
that could cause botulism.
New Zealand's Ministry of Primary Industries said Saturday that
the tainted products include infant formula, sports drinks,
protein drinks and other beverages. It said countries affected
beside New Zealand include China, Australia, Thailand, Malaysia,
Vietnam and Saudi Arabia.
Fonterra said its customers were urgently checking their supply
chains.
One New Zealand company has locked down five batches of infant
formula and China is asking importers to immediately recall
products.
Fonterra is the world's fourth-largest dairy company, with annual
revenues of about $16 billion.
The news comes as a blow to New Zealand's dairy industry, which
powers the country's economy. New Zealand exports about 95
percent of its milk.
Consumers in China and elsewhere are willing to pay a big premium
for New Zealand infant formula because the country has a clean and
healthy reputation. Chinese consumers have a special interest
after tainted local milk formula killed six babies in 2008.
The Centers for Disease Control describes botulism as a rare but
sometimes fatal paralytic illness caused by a nerve toxin.
Fonterra said it has told eight of its customers of the problem,
which dates back more than a year, and they were investigating
whether any of the affected product is in their supply chains.
Fonterra said those companies will initiate any consumer product
recalls.
At a news conference Saturday, Fonterra repeatedly refused to
divulge the companies, countries or specific products affected.
Gary Romano, the managing director of Fonterra's New Zealand milk
products, said his company supplies raw materials to the eight
companies and it is up to them to inform their consumers of what
products might be tainted.
The company did acknowledge its chief executive, Theo Spierings,
planned to fly to China Saturday, in part to deal with the fallout
from the botulism scare.
New Zealand's Ministry for Primary Industries said Saturday that
New Zealand company Nutricia had used some of the tainted product
in its Karicare line of formula for infants aged over 6 months.
Nutricia had locked down all five batches of infant formula it
believed contained the tainted product, the ministry said. But it
advised that parents should buy different Nutricia products or
alternative brands until it verified the location of all tainted
Nutricia products.
China's product quality watchdog issued a statement urging
importers of Fonterra dairy products to immediately start
recalling the products.
The General Administration of Quality Supervision, Inspection and
Quarantine also told quality agencies around China to step up
inspections of milk products from New Zealand.
Mr. Romano said the problem was caused by unsterilized pipes at a
Waikato factory. He said three batches of whey protein weighing
about 42 tons were tainted in May 2012, adding that Fonterra has
since cleaned the pipes.
The New Zealand ministry says the tainted product has been mixed
with other ingredients to form about 1,000 tons of consumer
products worldwide.
The company said in a release it identified a potential quality
problem in March when a product tested positive for the bacteria
Clostridium. Many strains of the bacteria are harmless, the
company said, and product samples were put through intensive
testing over the following months. It said that on July 31 it
discovered the presence of a strain of the bacteria that can cause
botulism.
Mr. Romano said Fonterra hasn't received reports of anybody
getting sick and added that the problem hasn't affected any fresh
milk, yoghurt, cheese or long-lasting heat-treated milk.
New Zealand's Ministry for Primary Industries said it was working
with the company to investigate.
Mr. Spierings, the chief executive, said in the release that food
safety was the company's top priority.
"We are acting quickly," he said. "Our focus is to get
information out about potentially affected product as fast as
possible so that it can be taken off supermarket shelves and,
where it has already been purchased, can be returned."
Earlier this year, Fonterra announced it had discovered trace
amounts of the agricultural chemical dicyandiamide in some of its
products, prompting a ban on the chemical's use on New Zealand
farms.
Rabobank's 2012 Global Dairy Top 20 report ranked Fonterra as the
world's fourth-largest dairy company by revenue behind Nestl‚,
Danone and Lactalis. The company is a cooperative, partially
owned by thousands of farmers.
In 2011 the company collected 15.4 billion liters (4.1 billion
gallons) of milk in New Zealand, representing about 90 percent of
the country's total.
In 2008, six babies in China died and another 300,000 were
sickened by infant formula that was tainted with melamine, an
industrial chemical added to watered-down milk to fool tests for
protein levels. Fonterra at the time owned a minority stake in
Sanlu, the now-bankrupt Chinese company at the center of the
scandal.
FONTERRA COOPERATIVE: Companies Recall Whey Protein Concentrate
---------------------------------------------------------------
Rebecca Howard at Wall Street Journal reports that subsidiaries of
Danone SA and Coca-Cola Co. are among companies recalling products
after dairy giant Fonterra Co-Operative Group Ltd. warned they
might contain bacteria that could cause severe or even deadly food
poisoning.
Fonterra reported early Saturday, Aug. 3, 2013, a "quality issue"
involving three batches of whey protein concentrate produced in a
New Zealand manufacturing plant in May 2012. It said that it had
advised eight customers that use the whey protein to manufacture
their products. In total, Fonterra said, about 42 short tons of
primary ingredient were involved.
Following Fonterra's warning, two of Nutricia's Karicare infant
formulas sold in New Zealand were recalled.
The New Zealand government said Australia, China, Malaysia,
Thailand, Saudi Arabia and Vietnam had received the whey protein,
which is used in a variety of products, including infant formula
and sports drinks.
Fonterra said the issue was identified in March and that intensive
testing was carried out to isolate the specific bacteria. On
July 31, 2013, tests indicated the potential presence of
Clostridium botulinum, which can cause botulism, it said.
Fonterra said there are no reports of illness linked to the whey
protein.
Of the eight customers, it said three are food companies, two are
beverage companies and three are companies that manufacture
animal-stock feed, among others.
Nutricia New Zealand Ltd., a unit of Paris-based Danone, said
Sunday, Aug. 4, 2013, it was instigating a precautionary recall of
two Karicare infant formulas sold in New Zealand with specific
batch numbers. In a statement on its website, it said the recall
doesn't affect any products sold in Australia.
Dumex Baby Food Co., Danone's Chinese subsidiary, also said in a
written statement that it has instituted "a precautionary recall
and will destroy those affected products."
Coca-Cola China, a subsidiary of U.S.-based Coca-Cola, said it has
quarantined 10,505 pounds out of a total shipment of 10,560 pounds
of whey protein it received. It said the remaining 55 pounds were
used in the production of isolated batches of its Minute Maid
Pulpy Milk product. The company said external and internal
experts have confirmed that the products are safe due to the
ultrahigh-temperature manufacturing process that is used and the
low acidity.
However, "in order to fully reassure consumers, we are actively
cooperating with authorities to trace the production and
distribution of the batches in question," Coca-Cola China said.
It added that it would recall all products from these batches it
finds in the market.
"To prevent such incidents from occurring again, we will
strengthen our supervision of Fonterra," it said.
Danone Dumex (Malaysia) Sdn. Bhd. announced a precautionary recall
on Sunday of specific batches of four infant formulas. "None of
the products tested and sold in Malaysia indicate any
contamination," Danone Dumex said. Still, it decided on a
precautionary recall and warned consumers not to use products
bearing specific batch numbers.
Also on Aug. 4, 2013, New Zealand Trade Minister Tim Groser told
TVNZ's "Q+A" program that "the authorities in China have stopped
all imports of New Zealand milk powers from Australia and New
Zealand." He fully backed the move, saying that it is "better to
offer blanket protection."
China is a key market for Fonterra, and consumers are particularly
sensitive about infant formula since 2008, when at least six
children died and 300,000 became sick from milk containing
dangerous levels of melamine, a chemical that mimics the
properties of protein, allowing producers to water down milk
without apparently diluting its nutritional value. Fonterra owned
a stake in one of the companies at the center of the scandal, the
now-defunct Sanlu Group, but Fonterra has flourished in China
since Sanlu's closing.
In other markets, Russian regulator Rospotrebnadzor said it is
banning dairy products from Fonterra, the RIA Novosti news agency
said on its website. According to RIA Novosti, Rospotrebnadzor
said it has started recalling Fonterra products, including infant
formula, and has advised Russian consumers not to buy the
company's other products.
Late Sunday, Aug. 4, 2013, Fonterrra officials said they had no
official knowledge about whether Russia was banning or recalling
its products but said their understanding "at this stage is that
they are unconfirmed reports."
New Zealand's milk industry was rocked this year when Fonterra
acknowledged that traces of the chemical dicyandiamide, or DCD,
had been found in milk powder late last year, but the market
wasn't told until January.
Fonterra said there are no reports of illness linked to the whey
protein. According to the U.S. Food and Drug Administration, a
very small amount -- a few nanograms -- of Clostridium botulinum
can cause illness. While the incidence of botulism is low, "the
mortality rate is high if not treated immediately and properly,"
the FDA said on its website.
Gary Romano, Fonterra's managing director for New Zealand milk
products, said the problem was caused by a pipe that wasn't
correctly sterilized. He said the length of time between
detection and confirmation was due to the extensive testing that
was carried out.
Mr. Groser said, however, that the situation is "very serious" and
the government has questions for Fonterra about where the failure
happened, the length of time it took to verify and who is going to
take responsibility.
GOLDMAN SACHS: Superior Extrusion Files Antitrust Class Action
--------------------------------------------------------------
Andrew Harris and Joe Richter, writing for Bloomberg News, report
that Goldman Sachs Group Inc. and the London Metal Exchange are
restraining aluminum supplies and driving up the metal's price in
violation of federal antitrust law, according to a lawsuit.
The suit, for which the aluminum products company Superior
Extrusion seeks class-action status, was filed Aug. 1 in federal
court in Detroit.
Goldman Sachs Group Inc. and the London Metal Exchange were named
in a lawsuit filed in Detroit by a Michigan company accusing them
of driving up the price of aluminum and violating U.S. antitrust
laws.
"Through an interconnected series of agreements in unreasonable
restraint of trade, Goldman and LME restrained approximately 1.5
million tons of aluminum in LME Detroit warehousing," causing
delays of as long as 16 months between customer orders and
corresponding deliveries, Gwinn, Michigan-based Superior alleged.
Buyers in Michigan, Ohio, Illinois and elsewhere in the U.S.
Midwest suffered harm in the form of inflated prices, according to
the complaint. The plaintiffs asked for an order barring the
practice and money damages tripled under U.S. antitrust law.
"We believe the suit is without merit and will contest it
vigorously," Michael DuVally, a spokesman for New York-based
Goldman, said on Aug. 2 in a phone interview. The market price
for the metal has fallen about 40% since 2006, he said.
Chris Evans, a spokesman for the LME in London, didn't immediately
respond to an e-mail on Aug. 2 after regular business hours
seeking comment on the lawsuit.
Aluminum buyers from beer makers to wire fabricators have
complained that owners of London Metal Exchange warehouses,
including banks, are manipulating availability of supply.
Rising Costs
Global aluminum costs were inflated by $3 billion in the past year
through unfair rules that allow warehouse owners to slow
deliveries, Tim Weiner, a global risk manager at Chicago-based
brewer MillerCoors, said in written testimony before his
appearance July 23 at a U.S. Senate subcommittee hearing.
The practices of warehouse owners authorized to hold aluminum by
the LME created artificial limits on available supply, leaving
prices "inflated relative to the massive oversupply and record
production," Mr. Weiner said.
The premium added to aluminum for immediate delivery on the London
Metal Exchange rose in recent months as warehouse operators
offered incentives to attract aluminum into storage, forcing
consumers of the lightweight metal to compete with them.
In February 2010, Goldman Sachs Group Inc. bought Romulus,
Michigan-based Metro International Trade Services LLC -- a
defendant in the Superior complaint -- which as of July 11
operated 34 of 39 storage facilities licensed by the LME in the
Detroit area, according to exchange data.
Goldman Statement
Goldman Sachs said in a statement July 31 that it isn't involved
with the daily management of the company.
Orders to remove the metal from storage make up 63% of total
stockpiles in Detroit, the biggest U.S. repository of the metal.
Goldman Sachs said last week that no client has accepted the
bank's offer to swap metal stuck in queues for immediately
available aluminum.
The LME said July 1 that it's trying to quicken deliveries from
stockpiles in warehouses where waiting times exceed 100 calendar
days.
Those sites would have to deliver out more metal than they take
in, based on a formula, the LME said. Market participants are
being consulted until Sept. 30, the exchange said. Its board is
expected to review the plan in October, and the proposal would
take effect April 1 if approved.
The case is Superior Extrusion Inc. v. Goldman Sachs Group Inc.,
13-cv-13315, U.S. District Court, Eastern District of Michigan
(Detroit).
HANSEN MEDICAL: Nov. 21 Final Hearing on Class Action Settlement
----------------------------------------------------------------
The U.S. District Court for the Northern District of California on
July 25, 2013, granted preliminary approval of a settlement of the
consolidated securities class-action lawsuit related to the
restatement of Hansen Medical Inc.'s financial statements that was
first announced in October 2009. Upon final court approval, all
defendants, including Hansen Medical, will receive a full and
complete release of all claims in the previously disclosed
securities class action. The Court has scheduled a hearing on
November 21, 2013, at which Hansen Medical expects the court will
grant final approval.
HERBALIFE LTD: To Vigorously Defend "Bostick" Class Suit
--------------------------------------------------------
Herbalife Ltd. has been named as a defendant in a purported class
action lawsuit filed April 8, 2013 in the U.S. District Court for
the Central District of California (Bostick v. Herbalife
International of America, Inc., et al) challenging the legality of
its network marketing program under various state and federal
laws. Herbalife believes the suit is without merit and plans to
defend the suit vigorously, the company said in its July 29, 2013
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2013.
HERSHEY CO: Subpoenas Ordered in Chocolate Cartel Litigation
------------------------------------------------------------
Writing for Courthouse News Service, Rose Bouboushian reports that
accused of running a worldwide chocolate cartel, Hershey, Mars and
Nestle can reopen discovery to subpoena certain third-party direct
purchasers, a federal judge ruled.
The antitrust action over chocolate pricing has been ongoing since
2007 when a class accused Hershey, Mars, Nestle and Cadbury of a
five-year conspiracy.
Since a few manufacturers control a large percentage of the market
for chocolate, they can prevent demand from fluctuating by
exploiting an industry structure that is conducive to collusive
behavior, according to the complaint.
After the Judicial Panel on Multidistrict Litigation consolidated
all pretrial matters for 91 related actions in April 2008, Cadbury
settled for $1.3 million and was dismissed from the case in
December 2011.
U.S. District Judge Christopher Conner, in Scranton, Pa.,
certified a class of direct purchasers in December 2012, holding
that the ultimate damages amassed for candy bars will total
roughly $726 million.
Indirect purchaser plaintiffs in turn sought class certification
on May 1, 2013, and served their expert witness, Dr. Bruce Owen,
the next day.
Hershey, Mars, and Nestle -- which produce about 75 percent of the
U.S. chocolate market -- claimed that Owen relied on the as-yet
undisclosed data from M.R. Williams Inc. and Farner-Bocken Co.,
two third-party direct purchasers that distribute chocolate across
13 states.
While the defendants said the data includes more than 17 million
transactions and no customer information, the indirect purchasers
called that figure deceptive. They said most of the data is
irrelevant and can easily be searched and sorted.
The confectioneries asked to subpoena and depose M.R. Williams and
Farner-Bocken representatives regarding the data, but the class
refused and allegedly offered to produce another set of data from
another direct purchaser, Chicago Vending Supply.
The defendants said the Chicago Vend data ultimately arrived just
a few days before they moved for additional discovery into the
transaction data regarding the customers of M.R. Williams and
Farner-Bocken. They say they have not yet had sufficient time to
assess the more-than 230,000 new documents.
Conner granted the motion Thursday, tossing aside a claim from the
indirect purchaser plaintiffs (IPRs) that the defendants should
have sought similar data from direct purchaser Vistar in 2011.
"Notably distinct from the MRW and Farner-Bocken data, the Vistar
production contained customer names, from which class of trade and
location could be independently derived," Conner wrote. "Indeed,
IPR plaintiffs tacitly concede this fact by recognizing that they
determined the location of Vistar's vending customers through an
internet search. They were able to do so because the Vistar data
included customer names, which the MRW and Farner-Bocken data do
not. This fact alone renders IPR plaintiffs comparison
inapposite."
The defendants need to determine whether the claims of the named
indirect purchasers are typical of putative class members across
three separate industries, the judgment states.
"Defendants contend that Dr. Owen assumed that all of MRW's
customers are convenience stores, and that he extrapolated the
prices MRW applies to all of its customers to a class that is
limited to vending machine operators, grocery stores, and
convenience stores," Connor wrote. "However, according to
defendants, MRW's motion to quash a subpoena previously filed in
this litigation belies that argument, as MRW stated that their
customers are 'mostly convenience stores.' More detailed
transaction information will allow defendants to evaluate what
effect, if any, this incongruity had on Dr. Owen's analysis."
The original four defendants controlled more than 80 percent of
the $16 billion U.S. chocolate market in 2006, and half of the
world market, according to a 2007 class action filed in Newark.
Hershey's controlled 45 percent of the U.S. chocolate market in
2006, Mars 27 percent, Nestle 9 percent, and Cadbury about 4
percent, that action continued.
Mars controlled 15 percent of the world market, Nestle 13 percent,
and Hershey's and Cadbury 8 percent each, according to that
complaint. The chocolatiers then employed more than 400,000
people.
The Plaintiffs are represented by:
Christopher Lovell, Esq.
LOVELL STEWART HALEBIAN, LLP
500 Fifth Avenue, Floor 58
New York, NY 10110
Telephone: (212) 608-1900
E-mail: clovell@lshllp.com
- and -
Daniel A. Small, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Avenue, NW, Suite 500 West
Washington, DC 20005-3964
Telephone: (202) 408-4600
E-mail: dsmall@cohenmilstein.com
- and -
James J. McCarthy, Jr., Esq.
MCCARTHY WEISBERG CUMMINGS, P.C.
2041 Herr Street
Harrisburg, PA 17103
Telephone: (717) 238-5707
Facsimile: (717) 233-8133
E-mail: jmccarthy@mwcfirm.com
- and -
Walter W. Cohen, Esq.
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
200 Locust Street, Suite 400
Harrisburg, PA 17101
Telephone: (717) 234-9730
E-mail: walter.cohen@obermayer.com
- and -
Craig M. Essenmacher, Esq.
LOVELL STEWART HALEBIAN LLP
61 Broadway, Suite 501
New York, NY 10006
Telephone: (212) 608-1900
E-mail: cessenmacher@lshllp.com
- and -
Peggy J. Wedgworth, Esq.
LOVELL STEWART HALEBIAN LLP
500 Fifth Avenue, 58th Floor
New York, NY 10110
Telephone: (212) 608-1900
E-mail: peggywedg@aol.com
- and -
Gregory P. Hansel, Esq.
Randall B. Weill, Esq.
PRETI, FLAHERTY, BELIVEAU, PACHIOS & HALEY, LLC
One City Center
P.O. Box 9546
Portland, ME 04112-9546
Telephone: (207) 791-3000
E-mail: ghansel@preti.com
rweill@preti.com
- and -
Roger P. Poorman, Esq.
SPENCE, CUSTER, SAYLOR, WOLFE & ROSE, LLC
216 Franklin Street, Suite 400
PO Box 280
Johnstown, PA 15907
Telephone: (814) 536-0735
Facsimile: (814) 539-1423
E-mail: rpoorman@spencecuster.com
- and -
Steven Dane Irwin, Esq.
LEECH TISHMAN FUSCALDO & LAMPL, LLC
Citizens Bank Building, 30th Floor
525 William Penn Place
Pittsburgh, PA 15219
Telephone: (412) 261-1600
Facsimile: (412) 227-5551
E-mail: sirwin@leechtishman.com
- and -
David V. Weicht, Esq.
LEECH TISHMAN FUSCALDO & LAMPL, LLC
525 William Penn Place, 30th Floor
Pittsburgh, PA 15219
Telephone: (412) 261-1600
Facsimile: (412) 227-5551
E-mail: dweicht@leechtishman.com
- and -
Joseph C. Kohn, Esq.
Douglas A. Abrahams, Esq.
William E. Hoese, Esq.
KOHN SWIFT & GRAF, P.C.
One South Broad Street, Suite 2100
Philadelphia, PA 19107
Telephone: (215) 238-1700
E-mail: jkohn@kohnswift.com
dabrahams@kohnswift.com
whoese@kohnswift.com
- and -
Adam J. Pessin, Esq.
Allen D. Black, Esq.
Gerard A. Dever, Esq.
Donald L. Perelman, Esq.
Jeffrey S. Istvan, Esq.
Ria C. Momblanco, Esq.
Roberta D. Liebenberg, Esq.
FINE KAPLAN AND BLACK, R.P.C.
1835 Market Street, 28th Floor
Philadelphia, PA 19103
Telephone: (215) 567-6565
E-mail: apessin@finekaplan.com
ablack@finekaplan.com
gdever@finekaplan.com
dperelman@finekaplan.com
jistvan@finekaplan.com
rmomblanco@finekaplan.com
rliebenberg@finekaplan.com
- and -
Howard J. Sedran, Esq.
LEVIN, FISHBEIN, SEDRAN & BERMAN
510 Walnut Street, Suite 500
Philadelphia, PA 19106
Telephone: (215) 592-1500
Facsimile: (215) 592-4663
E-mail: hsedran@lfsblaw.com
- and -
Jayne A. Goldstein, Esq.
POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS, LLP
1792 Bell Tower Lane, Suite 203
Weston, FL 33326
Telephone: (954) 315-3454
Facsimile: (954) 313-3455
E-mail: jagoldstein@pomlaw.com
- and -
Jeffrey B. Gittleman, Esq.
BARRACK, RODOS & BACINE
3300 Two Commerce Square
2001 Market Street
Philadelphia, PA 19103
Telephone: (215) 963-0600
Facsimile: (215) 963-0838
E-mail: jgittleman@barrack.com
- and -
Joseph Goldberg, Esq.
FREEDMAN BOYD HOLLANDER GOLDBERG & IVES, P.A.
20 First Plaza, Suite 700
Albuquerque, NM 87102
Telephone: (505) 842-9960
E-mail: jg@fbdlaw.com
- and -
Simon B. Paris, Esq.
SALTZ, MONGELUZZI, BARRETT & BENDESKY, P.C.
One Liberty Place, 52nd Floor
1650 Market Street
Philadelphia, PA 19103
Telephone: (215) 575-3986
E-mail: sparis@smbb.com
- and -
Thomas A. Muzilla, Esq.
THE MUZILLA LAW FIRM LLP
1301 East 9th Street
Cleveland, OH 44114
Telephone: (216) 458-5880
E-mail: tom@muzillalaw.com
- and -
William D. Marvin, Esq.
COHEN PLACITELLA & ROTH, P.C.
Two Commerce Square, Suite 2900
2001 Market Street
Philadelphia, PA 19103
Telephone: (215) 567-3500
E-mail: wmarvin@cprlaw.com
- and -
Adam J. Levitt, Esq.
GRANT & EISENHOFER
30 North LaSalle Street, Suite 1200
Chicago, IL 60603
Telephone: (312) 214-0000
Facsimile: (312) 214-0001
E-mail: alevitt@gelaw.com
- and -
Fred T. Isquith, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLP
270 Madison Avenue
New York, NY 10016
Telephone: (212) 545-4600
E-mail: isquith@whafh.com
- and -
Lee C. Swartz, Esq.
Stephen M. Greecher, Jr., Esq.
TUCKER, ARENSBERG , P.C.
2 Lemoyne Drive, Suite 200
Lemoyne, PA 17043
Telephone: (717) 234-4121
E-mail: lswartz@tuckerlaw.com
sgreecher@tuckerlaw.com
- and -
Mary J. Fait, Esq.
WOLF HALDENSTEIN ADLER FREEMAN & HERZ LLC
55 W. Monroe Street, Suite 1111
Chicago, IL 60603
Telephone: (312) 984-0000
Facsimile: (312) 984-0001
E-mail: mfait@whafh.com
- and -
Dianne M. Nast, Esq.
NASTLAW LLC
1101 Market Street, Suite 2801
Philadelphia, PA 19107
Telephone: (215) 923-9300
E-mail: dnast@nastlaw.com
- and -
Jason S. Kilene, Esq.
GUSTAFSON GLUEK PLLC
650 Northstar East
608 Second Avenue South
Minneapolis, MN 55402
Telephone: (612) 333-8844
E-mail: jkilene@gustafsongluek.com
- and -
Barry C. Barnett, Esq.
SUSMAN GODFREY LLP
901 Main Street, Suite 5100
Dallas, TX 75202
Telephone: (214) 754-1903
E-mail: bbarnett@susmangodfrey.com
- and -
Krishna B. Narine, Esq.
LAW OFFICE OF KRISHNA B. NARINE, PC
2600 Philmont Avenue, Suite 324
Huntingdon Valley, PA 19006
Telephone: (215) 914-2460
E-mail: knarine@kbnlaw.com
- and -
Rachel S. Black, Esq.
SUSMAN GODFREY, LLP - SEATTLE
1201 Third Avenue, Suite 3800
Seattle, WA 98101
Telephone: (206) 516-3899
E-mail: rblack@susmangodfrey.com
- and -
Warren Rubin, Esq.
LAW OFFICES BERNARD M. GROSS, P.C.
Suite 450, Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107
Telephone: (215) 561-3600
E-mail: warren@bernardmgross.com
- and -
Gregory S. Asciolla, Esq.
LABATON SUCHAROW LLP
140 Broadway
New York, NY 10005
Telephone: (212) 907-0700
E-mail: gasciolla@labaton.com
- and -
Kevin P. Roddy, Esq.
WILENTZ GOLDMAN & SPITZER P.A.
90 Woodbridge Center Drive, Suite 900
Box 10
Woodbridge, NJ 07095
Telephone: (732) 855-6402
E-mail: kroddy@wilentz.com
- and -
Klari Neuwelt, Esq.
LAW OFFICE OF KLARI NEUWELT
110 East 59th Street, 29th Floor
New York, NY 10022
Telephone: (212) 593-8800
E-mail: kneuwelt@aol.com
- and -
Mark S. Shane, Esq.
SHANE AND WHITE, LLC
1676 Route 27
Edison, NJ 08817
Telephone: (732) 819-9100
E-mail: mshane@shaneandwhite.com
- and -
Seth R. Gassman, Esq.
HAUSFELD LLP
1700 K Street NW, Suite 650
Washington, DC 20006
Telephone: (202) 540-7226
E-mail: sgassman@hausfeldllp.com
- and -
Bryan L. Clobes, Esq.
CAFFERTY CLOBES MERIWETHER & SPRENGEL LLP
1101 Market Street, Suite 2650
Philadelphia, PA 19107
Telephone: (215) 864-2800
E-mail: bclobes@caffertyfaucher.com
- and -
Mark S. Goldman, Esq.
GOLDMAN SCARLATO & KARON PC
101 W. Elm Street, Suite 360
Conchohocken, PA 19428
Telephone: (484) 342-0700
E-mail: goldman@gsk-law.com
- and -
Aaron M. Sheanin, Esq.
PEARSON, SIMON & WARSHAW
44 Montgomery Street, Suite 2450
San Francisco, CA 94104
Telephone: (415) 433-9000
E-mail: asheanin@pswlaw.com
- and -
Elizabeth C. Pritzker, Esq.
PRITZKER LAQ
633 Battery Street, Suite 110
San Francisco, CA 94111
Telephone: (415) 692-0772
Facsimile: (415) 366-6110
E-mail: ecp@pritzker-law.com
- and -
Jonathan Shub, Esq.
SEEGER WEISS LLP
1515 Market Street, Suite 1380
Philadelphia, PA 19102
Telephone: (215) 564-2300
E-mail: jshub@seegerweiss.com
- and -
Benjamin F. Johns, Esq.
CHIMICLES & TIKELLIS LLP
One Haverford Centre
361 W. Lancaster Avenue
Haverford, PA 19041
Telephone: (610) 642-8500
E-mail: bfj@chimicles.com
- and -
Eugene A. Spector, Esq.
Jay S. Cohen, Esq.
William G. Caldes, Esq.
SPECTOR ROSEMAN KODROFF & WILLIS, P.C.
1818 Market St., Suite 2500
Philadelphia, PA 19103
Telephone: (215) 496-0300
Facsimile: (215) 496-6611
E-mail: espector@srkw-law.com
jcohen@srkw-law.com
bcaldes@srkw-law.com
- and -
Michael M. Buchman, Esq.
MOTLEY RICE LLC
275 Seventh Avenue, Second Floor
New York, NY 10001
Telephone: (212) 577-0040
E-mail: mbuchman@motleyrice.com
- and -
Allan Steyer, Esq.
Jayne A. Peeters, Esq.
STEYER LOWENTHAL BOODROOKAS ALVAREZ & SMITH LLP
One California Street, Third Floor
San Francisco, CA 94111
Telephone: (415) 421-3400
E-mail: asteyer@steyerlaw.com
jpeeters@steyerlaw.com
- and -
Christopher J. Cormier, Esq.
COHEN, MILSTEIN, HAUSFELD & TOLL, P.L.L.C.
2925 PGA Blvd., Suite 200
Palm Beach Gardens, FL 33410
Telephone: (561) 833-6575
E-mail: ccormier@cohenmilstein.com
- and -
Hilary K. Scherrer, Esq.
Michael D. Hausfeld, Esq.
William P. Butterfield, Esq.
HAUSFELD LLP
1700 K Street, NW, Suite 650
Washington, DC 20006
Telephone: (202) 540-7200
E-mail: hscherrer@hausfeldllp.com
mhausfeld@hausfeldllp.com
wbutterfield@hausfeldllp.com
- and -
Robert G. Eisler, Esq.
HAUSFELD LLP
1604 Locust Street, 2nd floor
Philadelphia, PA 19103
Telephone: (215) 985-3270
E-mail: reisler@hausfeldllp.com
- and -
Beverly L. Tse, Esq.
Daniel Hume, Esq.
David E. Kovel, Esq.
Peter S. Linden, Esq.
KIRBY MCINERNEY LLP
825 Third Avenue, 16th Floor
New York, NY 10022
Telephone: (212) 371-6600
E-mail: btse@kmllp.com
dhume@kmllp.com
dkovel@kmllp.com
plinden@kmllp.com
- and -
Kevin J. Kehner, Esq.
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
200 Locust Street, Suite 400
Harrisburg, PA 17101
Telephone: (717) 234-9730
E-mail: kevin.kehner@obermayer.com
- and -
Manuel J. Dominguez, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
2925 PGA Blvd., Suite 200
Palm Beach Gardens, FL 33410
Telephone: (561) 833-6575
Facsimile: (202) 408-4699
E-mail: jdominguez@cohenmilstein.com
- and -
Timothy D. Battin, Esq.
STRAUS & BOIES, LLP
4041 University Drive, 5th Floor
Fairfax, VA 22030
Telephone: (703) 764-8700
E-mail: tbattin@straus-boies.com
- and -
Douglas H. Patton, Esq.
James T. Almon, Esq.
KENNY NACHWALTER, P.A.
201 South Biscayne Boulevard
1100 Miami Center
Miami, FL 33131-4327
Telephone: (305) 373-1000
E-mail: dpatton@kennynachwalter.com
jalmon@kennynachwalter.com
- and -
Joseph T. Lukens, Esq.
FARUQI & FARUQI
101 Greenwood Avenue
Jenkintown, PA 19046
Telephone: (215) 277-5770
E-mail: jlukens@faruqilaw.com
- and -
Richard Alan Arnold, Esq.
Scott E. Perwin, Esq.
William J. Blechman, Esq.
KENNY NACHWALTER, P.A.
1100 Miami Center
201 S. Biscayne Boulevard
Miami, FL 33131-4327
Telephone: (305) 373-1000
E-mail: rarnold@kennynachwalter.com
sep@knpa.com
wblechman@kennynachwalter.com
- and -
Steven D. Shadowen, Esq.
HILLIARD & SHADOWEN, LLC
39 West Main Street
Mechanicsburg, PA 17055
Telephone: (855) 344-3298
E-mail: steve@hilliardshadowenlaw.com
- and -
Anthony J. Bolognese, Esq.
Joshua H. Grabar, Esq.
BOLOGNESE & ASSOCIATES, LLC
Two Penn Center
1501 John F. Kennedy Blvd., Suite 320
Philadelphia, PA 19102
Telephone: (215) 814-6750
E-mail: abolognese@bolognese-law.com
jgrabar@bolognese-law.com
- and -
David P. Germaine, Esq.
Joseph M. Vanek, Esq.
VANEK, VICKERS & MASINI, P.C.
55 West Monroe Street, Suite 3500
Chicago, IL 60603
Telephone: (312) 224-1500
Facsimile: (312) 224-1510
E-mail: dgermaine@vaneklaw.com
jvanek@vaneklaw.com
- and -
Linda P. Nussbaum, Esq.
GRANT & EISENHOFER P.A.
485 Lexington Avenue, 29th Floor
New York, NY 10017
Telephone: (646) 722-8500
Facsimile: (646) 722-8501
E-mail: lnussbaum@gelaw.com
- and -
Richard L. Coffman, Esq.
THE COFFMAN LAW FIRM
505 Orleans Street, Suite 505
Beaumont, TX 77701
Telephone: (409) 833-7700
Facsimile: (866) 835-8250
E-mail: rcoffman@coffmanlawfirm.com
- and -
Robert N. Kaplan, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: (212) 687-1980
Facsimile: (212) 687-7714
E-mail: rkaplan@kaplanfox.com
- and -
W. Joseph Bruckner, Esq.
LOCKRIDGE, GRINDAL & NAUEN
100 Washington Avenue South, Suite 2200
Minneapolis, MN 55401-2179
Telephone: (612) 339-6900
Facsimile: (612) 339-0981
E-mail: bruckwj@locklaw.com
- and -
H. L. Montague, Jr., Esq.
Ruthanne Gordon, Esq.
BERGER & MONTAGUE, P.C.
1622 Locust Street
Philadelphia, PA 19103
Telephone: (215) 875-3000
E-mail: hlmontague@bm.net
rgordon@bm.net
- and -
Ronald J. Aranoff, Esq.
BERNSTEIN LIEBHARD & LIFSHITZ, LLP
10 East 40th Street, 22nd Floor
New York, NY 10016
Telephone: (212) 779-1414
E-mail: aranoff@bernlieb.com
- and -
Eric L. Bloom, Esq.
HANGLEY ARONCHICK SEGAL PUDLIN & SCHILLER
4400 Deer Path Road, Suite 200
Harrisburg, PA 17110
Telephone: (717) 364-1030
Facsimile: (717) 364-1020
E-mail: ebloom@hangley.com
- and -
Joshua D. Snyder, Esq.
KOHN SWIFT & GRAF PC
One South Broad Street, Suite 2100
Philadelphia, PA 19107-3389
Telephone: (215) 238-1700
E-mail: jsnyder@bonizack.com
- and -
Marc H. Edelson, Esq.
EDELSON & ASSOCIATES, LLC
45 West Court Street
Doylestown, PA 18901
Telephone: (215) 230-8043
E-mail: medelson@edelson-law.com
- and -
Michael J. Boni, Esq.
BONI & ZACK LLC
15 St. Asaphs Road
Bala Cynwyd, PA 19004
Telephone: (610) 822-0201
E-mail: mboni@bonizack.com
- and -
Bernard D. Marcus, Esq.
MARCUS & SHAPIRA
301 Grant Street
35th Floor, One Oxford Centre
Pittsburgh, PA 15219-6401
Telephone: (412) 471-3490
E-mail: bdm@marcus-shapira.com
- and -
Brian C. Hill, Esq.
MARCUS & SHAPIRA LLP
One Oxford Centre, Suite 3500
Pittsburgh, PA 15219
Telephone: (412) 338-5213
E-mail: hill@marcus-shapira.com
- and -
Moira Cain-Mannix, Esq.
MARCUS & SHAPIRA LLP
One Oxford Centre, 35th Floor
301 Grant Street
Pittsburgh, PA 15219
Telephone: (412) 338-5200
Facsimile: (412) 391-8758
E-mail: cain-mannix@marcus-shapira.com
- and -
Joseph C. McCorquodale, Esq.
MCCORQUODALE & MCCORQUODALE
226 Commerce Street
P.O. Drawer 1137
Jackson, AL 36545
Telephone: (251) 246-9015
E-mail: egreen@mccorquodalelawfirm.com
- and -
David S. Stellings, Esq.
250 Judson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
E-mail: dstellings@lchb.com
- and -
Dean M. Harvey, Esq.
LIEFF CABRASER HEIMANN & BERNSTEIN LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111
Telephone: (415) 956-1000
E-mail: dharvey@lchb.com
- and -
Kevin B. Love, Esq.
CRIDEN & LOVE, P.A.
7301 SW 57th Court, Suite 515
South Miami, FL 33134
Telephone: (305) 357-9000
E-mail: klove@cridenlove.com
- and -
Richard M. Hagstrom, Esq.
ZELLE, HOFMANN, VOELBE, MASON & GETTE LLP
500 Washington Ave. South, Suite 4000
Minneapolis, MN 55415
Telephone: (612) 339-2020
E-mail: rhagstrom@zelle.com
- and -
Joseph M. Patane, Esq.
LAW OFFICE OF JOSEPH M. PATANE
2280 Union Street
San Francisco, CA 94123
Telephone: (415) 563-7200
E-mail: jpatane@tatp.com
- and -
Lauren Clare Russell, Esq.
TRUMP ALIOTO TRUMP & PRESCOTT, LLP
2280 Union Street
San Francisco, CA 94123
Telephone: (415) 563-7200
E-mail: laurenrussell@tatp.com
- and -
Amber M. Nesbitt, Esq.
WEXLER WALLACE LLP
55 W. Monroe Street, Suite 3300
Chicago, IL 60603
Telephone: (312) 346-2222
Facsimile: (312) 346-0022
E-mail: amn@wexlerwallace.com
- and -
Edward A. Wallace, Esq.
Kenneth A. Wexler, Esq.
WEXLER WALLACE LLP
55 West Monroe Street, Suite 3300
Chicago, IL 60603
Telephone: (312) 346-2222
Facsimile: (312) 346-0022
E-mail: eaw@wexlerwallace.com
kaw@wexlerwallace.com
- and -
Arthur N. Bailey, Esq.
ARTHUR N. BAILEY & ASSOCIATES
111 West Second Street, Suite 4500
Jamestown, NY 14701
Telephone: (716) 664-2967
E-mail: artlaw@windstream.net
- and -
Tanya S. Chutkan, Esq.
William A. Isaacson, Esq.
BOIES, SCHILLER & FLEXNER LLP
5301 Wisconsin Avenue N.W., Suite 800
Washington, DC 20015
Telephone: (202) 237-2727
E-mail: tchutkan@bsfllp.com
- and -
Bruce L. Simon, Esq.
PEARSON, SIMON, WARSHAW
44 Montgomery Street, Suite 2450
San Francisco, CA 94104
Telephone: (415) 433-9000
Facsimile: (415) 433-9008
E-mail: bsimon@pswlaw.com
- and -
Bonny E. Sweeney, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
E-mail: bonnys@rgrdlaw.com
- and -
Clinton P. Walker, Esq.
Fred A. Silva, Esq.
Kathy L. Monday, Esq.
Roger M. Schrimp, Esq.
DAMRELL, NELSON, SCHRIMP, PALLIOS, PACHER & SILVA
1601 I Street, Fifth Floor
Modesto, CA 95354
Telephone: (209) 526-3500
E-mail: CWalker@damrell.com
fsilva@damrell.com
kmonday@damrell.com
rschrimp@damrell.com
- and -
Bernice Conn, Esq.
2049 Century Park East, Suite 3400
Los Angeles, CA 90067-3208
Telephone: (310) 552-0130
E-mail: bconn@rkmc.com
- and -
K. Craig Wildfang, Esq.
ROBINS, KAPLAN, MILLER & CIRESI LLP
800 Lasalle Ave., Suite 2800
Minneapolis, MN 55402
Telephone: (612) 349-8554
E-mail: kcwildfang@rkmc.com
- and -
Michael C. Maher, Esq.
Steven R. Maher, Esq.
THE MAHER LAW FIRM
631 West Morse Blvd., Suite 200
Winter Park, FL 32789
Telephone: (407) 839-0866
E-mail: mmaher@maherlawfirm.com
smaher@maherlawfirm.com
- and -
Roman M. Silberfeld, Esq.
ROBINS, KAPLAN, MILLER & CIRESI LLP
2049 Century Park East, Suite 3400
Los Angeles, CA 90067-3208
Telephone: (310) 552-0130
E-mail: rmsilberfeld@rkmc.com
- and -
Thomas J. Undlin, Esq.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402
Telephone: (612) 349-8500
E-mail: tjundlin@rkmc.com
- and -
Christopher H. Casey, Esq.
DILWORTH PAXSON, LLP
1500 Market Street, Suite 3500E
Philadelphia, PA 19102
Telephone: (215) 575-7000
E-mail: ccasey@dilworthlaw.com
- and -
Emily A. Jarvis, Esq.
ROBINS, KAPLAIN, MILLER & CIRESI L.L.P.
2049 Century Park East, Suite 3400
Los Angeles, CA 90067-3208
Telephone: (310) 552-0130
E-mail: eajarvis@rkmc.com
- and -
Joseph U. Metz, Esq.
DILWORTH PAXSON LLP
112 Market Street
Harrisburg, PA 17101
Telephone: (717) 236-4812
Facsimile: (717) 236-7811
E-mail: jmetz@dilworthlaw.com
- and -
Joshua D. Wolson, Esq.
DILWORTH PAXSON LLP
1735 Market Street
3200 Mellon Bank Center
Philadelphia, PA 19103
Telephone: (215) 575-7000
E-mail: jwolson@dilworthlaw.com
- and -
Adam S. Levy, Esq.
THE HAVILAND LAW FIRM LLC
111 S. Independence Mall East, Suite 1000
Philadelphia, PA 19106
Telephone: (215) 609-4661
Facsimile: (215) 392-4400
E-mail: adamslevy@comcast.net
- and -
Donald E. Haviland, Esq.
Michael J. Lorusso, Esq.
HAVILAND HUGHES, LLC
111 S. Independence Mall East
The Bourse, Suite 1000
Philadelphia, PA 19106
Telephone: (215) 609-4661
Facsimile: (215) 392-4400
E-mail: haviland@havilandhughes.com
lorusso@havilandhughes.com
- and -
Kevin J. Miller, Esq.
KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, PLLC
1615 M Street, NW, Suite 400
Washington, DC 20036-3209
Telephone: (202) 326-7987
E-mail: kmiller@khhte.com
- and -
Richard A. Saveri, Esq.
SAVERI & SAVERI, INC.
706 Sansome Street
San Francisco, CA 94111
Telephone: (415) 217-6810
E-mail: rick@saveri.com
- and -
Steven F. Benz, Esq.
KELLOG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C.
1615 M Street N.W., Suite 400
Washington, DC 20036-3209
Telephone: (202) 326-7929
E-mail: sbenz@khhte.com
- and -
Adam C. Belsky, Esq.
GROSS BELSKY ALONSO LLP
180 Montgomery Street, Suite 2200
San Francisco, CA 94104
Telephone: (415) 544-0200
E-mail: adam@gba-law.com
- and -
Terry Gross, Esq.
GROSS BELSKY ALONSO LLP
180 Montgomery Street, Suite 2200
San Francisco, CA 94104
Telephone: (415) 544-0200
E-mail: terry@gba-law.com
- and -
Brian J. Barry, Esq.
LAW OFFICES OF BRIAN BARRY
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (323) 522-5584
E-mail: bribarry1@yahoo.com
- and -
Richard L. Wyatt, Jr., Esq.
HUNTON & WILLIAMS
1900 K Street, N.W.
Washington, DC 20006
Telephone: (202) 419-2162
E-mail: rwyatt@hunton.com
- and -
Sofia Luina, Esq.
HUNTON & WILLIAMS, LLP
1900 K Street N.W., Suite 1200
Washington, DC 20006
Telephone: (202) 419-2152
Facsimile: (202) 778-7455
E-mail: sluina@hunton.com
- and -
Todd M. Stenerson, Esq.
HUNTON & WILLIAMS
1900 K Street, N.W.
Washington, DC 20006
Telephone: (202) 419-2184
E-mail: tstenerson@hunton.com
- and -
Torsten M. Kracht, Esq.
HUNTON & WILLIAMS, LLP
2200 Pennsylvania Avenue, N.W.
Washington, DC 20037
Telephone: (202) 955-1500
E-mail: tkracht@hunton.com
- and -
Steven A. Kanner, Esq.
FREED KANNER LONDON & MILLEN LLC
2201 Waukegan Road, Suite 130
Bannockburn, IL 60015
Telephone: (224) 632-4500
E-mail: skanner@fklmlaw.com
- and -
Elizabeth A. McKenna, Esq.
MILBERG LLP
One Penn Plaza
New York, NY 10119
Telephone: (212) 594-5300
E-mail: emckenna@milberg.com
- and -
Paul F. Novak, Esq.
MILBERG LLP
One Pennsylvania Plaza
New York, NY 10119
Telephone: (212) 946-9431
E-mail: pnovak@milberg.com
- and -
Peter G. Safirstein, Esq.
MORGAN & MORGAN
5 Penn Plaza, 23rd Floor
New York, NY 10001
Telephone: (646) 378-2198
Facsimile: (813) 222-2493
E-mail: psafirstein@forthepeople.com
- and -
Michael A. McShane, Esq.
AUDET & PARTNERS, LLP
221 Main Street, Suite 1460
San Francisco, CA 94105
Telephone: (415) 568-2555
E-mail: mmcshane@audetlaw.com
- and -
Mark R. Cuker, Esq.
WILLIAMS CUKER BEREZOFSKY
15115 Market Street, Suite 1300
Philadelphia, PA 19102
Telephone: (215) 557-0099
E-mail: mcuker@wcblegal.com
- and -
Gordon Ball, Esq.
BALL & SCOTT
550 West Main Street, Suite 601
Knoxville, TN 37902
Telephone: (865) 525-7028
E-mail: gball@ballandscott.com
- and -
Michael J. Flannery, Esq.
CAREY & DANIS, LLC
8235 Forsyth Blvd., Suite 1100
St. Louis, MO 63105
Telephone: (314) 725-7700
E-mail: mflannery@careydanis.com
- and -
Daniel H. Gold, Esq.
HAYNES AND BOONE, LLP
2323 Victory Avenue, Suite 700
Dallas, TX 75219
Telephone: (214) 651-5154
E-mail: daniel.gold@haynesboone.com
- and -
Lawrence Andrew Gaydos, Esq.
HAYNES & BOONE-DALLAS
901 Main Street, Suite 3100
Dallas, TX 75202-3789
Telephone: (214) 651-5622
E-mail: larry.gaydos@haynesboone.com
- and -
Bruce J. Wecker, Esq.
HAUSFELD LLP
44 Montgomery Street, Suite 3400
San Francisco, CA 94104
Telephone: (415) 633-1908
E-mail: bwecker@hausfeldllp.com
- and -
Kit A. Pierson, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Avenue, NW
Suite 500, West Tower
Washington, DC 20005
Telephone: (202) 408-4600
E-mail: kpierson@cohenmilstein.com
- and -
Andrew M. Hetherington, Esq.
KELLOGG, HUBER HANSEN TODD EVANS & FIGEL PLLC
1615 M Street NW, Suite 400
Washington, DC 20036
Telephone: (202) 326-7948
E-mail: ahetherington@khhte.com
- and -
Joseph R. Gunderson, Esq.
Jason D. Walke, Esq.
GUNDERSON SHARP & WALKE LLP
321 East Walnut Street, Suite 300
Des Moines, IA 50309
Telephone: (515) 288-0219
E-mail: jgunderson@midwest-law.com
- and -
Samuel K. Rudman, Esq.
LAMBERT COFFIN
477 Congress Street
P.O. Box 15215
Poertland, ME 04112
Telephone: (207) 874-4000
E-mail: srudman@lambertcoffin.com
- and -
Jason S. Hartley, Esq.
STUEVE SIEGEL HANSON LLP - SAN DIEGO
550 West C Street, Suite 1750
San Diego, CA 92101
Telephone: (619) 400-5822
Facsimile: (619) 400-5832
E-mail: hartley@stuevesiegel.com
- and -
Jason M. Lindner, Esq.
STUEVE SIEGEL HANSON LLP - SAN DIEGO
550 West C Street, Suite 1750
San Diego, CA 92101
Telephone: (619) 400-5822
E-mail: lindner@stuevesiegel.com
- and -
Patrick J. Stueve, Esq.
Rachel E. Schwartz, Esq.
Steve N. Six, Esq.
STUEVE SIEGEL HANSON LLP - KC
460 Nichols Road, Suite 200
Kansas City, MO 64112
Telephone: (816) 714-7110
Facsimile: (816) 714-7101
E-mail: stueve@stuevesiegel.com
schwartz@stuevesiegel.com
six@stuevesiegel.com
The Defendants are represented by:
Brian M. English, Esq.
TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP
Four Gateway Center
100 Mulberry Street
Newark, NJ 07102-4070
Telephone: (973) 622-3000
- and -
Jonathan D. Brightbill, Esq.
KIRKLAND & ELLIS LLP
655 15th Street NW
Washington, DC 20005
Telephone: (202) 879-5238
Facsimile: (202) 879-5200
E-mail: jbrightbill@kirkland.com
- and -
Thomas D. Yannucci, Esq.
Craig S. Primis, Esq.
Janakan L. Thiagarajah, Esq.
KIRKLAND & ELLIS
655 15th St., N.W.
Washington,, DC 20005
Telephone: (202) 879-5000
E-mail: tyannucci@kirkland.com
cprimis@kirkland.com
janakan.thiagarajah@kirkland.com
- and -
Adeel A. Mangi, Esq.
PATTERSON KELKNAP WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036
Telephone: (212) 336-2000
E-mail: aamangi@pbwt.com
- and -
Alan R. Boynton, Jr., Esq.
MCNEES, WALLACE & NURICK
100 Pine Street
P. O. Box 1166
Harrisburg, PA 17108
Telephone: (717) 232-8000
E-mail: aboynton@mwn.com
- and -
James P. DeAngelo, Esq.
Kimberly A. Selemba, Esq.
MCNEES WALLACE & NURICK
100 Pine St.
PO Box 1166
Harrisburg, PA 17108-1166
Telephone: (717) 232-8000
E-mail: jdeangelo@mwn.com
kselemba@mwn.com
- and -
Kimberly M. Colonna, Esq.
MCNEES WALLACE & NURICK LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108
Telephone: (717) 237-5278
Facsimile: (717) 237-5300
E-mail: kcolonna@mwn.com
- and -
Thomas W. Pippert, Esq.
Vivian R. Storm, Esq.
William F. Cavanaugh, Jr., Esq.
PATTERSON BELKNAP WEBB & TYLER LLP
1133 Avenue of the Americas
New York, NY 10036
Telephone: (212) 336-2000
E-mail: twpippert@pbwt.com
vstorm@pbwt.com
wfcavanaugh@pbwt.com
- and -
Brian J. McMahon, Esq.
GIBBONS PC
One Gateway Center
Newark, NJ 07102
Telephone: (973) 596-4500
E-mail: bmcmahon@gibbonslaw.com
- and -
David Marx, Jr., Esq.
MCDERMOTT WILL & EMERY LLP
227 West Monroe Street, Suite 400
Chicago, IL 60606
Telephone: (312) 984-7668
Facsimile: (312) 984-7700
E-mail: dmarx@mwe.com
- and -
Guy V. Amoresano, Esq.
GIBBONS, PC
One Gateway Center
Newark, NJ 07102
Telephone: (973) 596-4500
E-mail: gamoresano@gibbonslaw.com
- and -
Jennifer Mara, Esq.
BALDASSARE & MARA
570 Broad Street, Suite 900
Newark, NJ 07102
Telephone: (973) 200-4066
E-mail: jmara@mabalaw.com
- and -
Nicole L. Castle, Esq.
MCDERMOTT WILL & EMERY LLP
500 North Capitol Street, NW
Washington, DC 20001
Telephone: (202) 756-8156
E-mail: ncastle@mwe.com
- and -
Stefan M. Meisner, Esq.
MCDERMOTT WILL & EMERY LLP
500 North Capitol Street, NW
Washington, DC 20001
Telephone: (202) 756-8000
Facsimile: (202) 756-8087
E-mail: smeisner@mwe.com
- and -
Thomas S. Brown, Esq.
BUTLER PAPPAS WEIHMULLER KATZ CRAIG LLP
1818 Market Street, Suite 2740
Philadelphia, PA 19103
Telephone: (215) 405-9191
Facsimile: (215) 405-9190
E-mail: tbrown@butlerpappas.com
- and -
Megan V. Morley, Esq.
MCDERMOTT WILL & EMERY LLP
500 North Capitol Street, NW
Washington, DC 20001
Telephone: (202) 756-8176
E-mail: mmorley@mwe.com
- and -
Rachael V. Lewis, Esq.
MCDERMOTT WILL & EMERY LLP
600 13th Street NW
Washington, DC 20005
Telephone: (202) 756-8000
E-mail: rlewis@mwe.com
- and -
Carmine R. Zarlenga, Esq.
MAYER BROWN
1999 K Street, N.W.
Washington, DC 20006
Telephone: (202) 263-3000
E-mail: CZarlenga@mayerbrown.com
- and -
Gilbert S. Keteltas, Esq.
HOWREY LLP
1299 Pennsylvania Ave., N.W.
Washington, DC 20004
Telephone: (202) 783-0800
E-mail: keteltasg@howrey.com
- and -
Matthew M. Haar, Esq.
SAUL EWING, LLP
2 North Second Street, 7th Floor
Harrisburg, PA 17101
Telephone: (717) 257-7508
E-mail: mhaar@saul.com
- and -
Michael A. Finio, Esq.
SAUL EWING LLP
2 N. 2nd Street, 7th Floor
Harrisburg, PA 17101
Telephone: (717) 238-7671
E-mail: mfinio@saul.com
- and -
Peter E. Moll, Esq.
CADWALADER, WICKERSHAM & TAFT LLP
700 Sixth Street, N.W.
Washington, DC 20001
Telephone: (202) 862-2220
Facsimile: (202) 862-2400
E-mail: peter.moll@cwt.com
- and -
Adam L. Hudes, Esq.
MAYER BROWN LLP
1999 K Street, N.W.
Washington, DC 20006
Telephone: (202) 263-3298
E-mail: ahudes@mayerbrown.com
- and -
Daniel J. Howley, Esq.
CADWALADER WICKERSHAM & TAFT LLP
700 Sixth Street, NW
Washington, DC 20001
Telephone: (202) 862-2326
E-mail: daniel.howley@cwt.com
- and -
Emily H. Bensinger, Esq.
SAUL EWING LLP
2 North Second Street, 7th Floor
Harrisburg, PA 17101
Telephone: (717) 257-7576
E-mail: ebensinger@saul.com
- and -
Jessica L. Kaufman, Esq.
MORRISON & FOERSTER LLP
1290 Avenue of the Americas
New York, NY 10104-0050
Telephone: (212) 468-8000
E-mail: jkaufman@mofo.com
- and -
Bridget E. Montgomery, Esq.
ECKERT SEAMANS CHERIN & MELLOTT, LLC
213 Market Street, 8th Floor
Harrisburg, PA 17101
Telephone: (717) 237-6054
Facsimile: (717) 237-6019
E-mail: bmontgomery@eckertseamans.com
- and -
Bradley H. Blower, Esq.
John P. Relman, Esq.
RELMAN & DANE, PLLC
1225 19th Street, N.W., Suite 600
Washington, DC 20036-2456
Telephone: (202) 728-1888
E-mail: bblower@relmanlaw.com
jrelman@relmanlaw.com
- and -
Katherine A. Gillespie, Esq.
RELMAN & DANE & COLFAX PLLC
1225 19th Street, N.W., Suite 600
Washington, DC 20036-2456
Telephone: (202) 728-1888
E-mail: kgillespie@relmanlaw.com
- and -
Joseph K. Goldberg, Esq.
LAW OFFICE OF JOSEPH K. GOLDBERG
2080 Linglestown Road, Suite 106
Harrisburg, PA 17110
Telephone: (717) 703-3600
Facsimile: (717) 635-2062
E-mail: jgoldberg@ssbc-law.com
The case is MDL 1935 -- IN RE: Chocolate Confectionary Antitrust
Litigation, Case No. 1:08-mdl-01935-China, in the U.S. District
Court for the Middle District of Pennsylvania (Harrisburg).
HOME DEPOT: Agrees to Recall 107,000 Soleil Portable Fan Heaters
----------------------------------------------------------------
Ben Fox Rubin, writing for Dow Jones Newswires, reports that
Home Depot Inc. agreed to recall about 107,000 Soleil portable fan
heaters after the retailer received 464 reports of the fans
melting, the Consumer Product Safety Commission said.
No injuries or property damage were reported.
The CPSC said the portable fan's plastic housing can melt, deform
and catch fire during use, posing a fire hazard.
Consumers were asked to stop using the product, which has a model
number LH-707, unless otherwise instructed.
The fan heaters, which were manufactured in China, were sold
exclusively at Home Depot stores nationwide from September 2012
through May 2013 for about $15.
Consumer can contact Home Depot at 1-877-527-0313 or online at
http://www.homedepot.comand click on Product Recalls for a refund
or additional information.
HUNTINGTON BANCSHARES: Named as Defendant in Suit v. MERSCORP
-------------------------------------------------------------
Columbus, Ohio-based Huntington Bancshares Incorporated disclosed
in its July 29, 2013 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2013,
that on January 17, 2012, the Company was named a defendant in a
putative class action filed on behalf of all 88 counties in Ohio
against MERSCORP, Inc. and numerous other financial institutions
that participate in the mortgage electronic registration system
(MERS). The complaint alleges that recording of mortgages and
assignments thereof is mandatory under Ohio law and seeks a
declaratory judgment that the defendants are required to record
every mortgage and assignment on real property located in Ohio and
pay the attendant statutory recording fees. The complaint also
seeks damages, attorneys' fees and costs. Although Huntington has
not been named as a defendant in the other cases, similar
litigation has been initiated against MERSCORP, Inc. and other
financial institutions in other jurisdictions throughout the
country.
IMPERIAL HOLDINGS: Final Court OK of Accord Seen in Early 2014
--------------------------------------------------------------
Imperial Holdings, Inc., on July 29, 2013, executed settlement
agreements to settle a purported class action litigation,
asserting claims under Sections 11, 12 and 15 of the Securities
Act of 1933, as amended, certain derivative shareholder demands
and an insurance coverage declaratory relief complaint filed by
the Company's primary director and officer insurance liability
carrier.
Upon the effectiveness of the settlement agreements, full and
complete releases will be provided to the Company as well as to
the individual defendants named in the Actions. All three
settlement agreements are contingent upon the effectiveness of all
of the other settlements, and the proposed Shareholder Action
settlements are each subject to preliminary and final court
approval. Final court approval of the Shareholder Action
settlements are expected by early 2014 but could be delayed by
appeals or other proceedings. In addition, the Company has the
right to terminate the settlement agreements if more than a
certain percentages of class members elect to opt-out of the class
action settlement.
Class Action Litigation
On September 27, 2011, the Company was informed that it was being
investigated by the U.S. Attorney's Office for the District of New
Hampshire (the "USAO Investigation"). At that time, the Company
was informed that, among other individuals, its former president
and chief operating officer, former general counsel, three former
life finance sales executives, two vice presidents and a funding
manager were considered "targets" of the USAO Investigation. The
USAO Investigation focused on the Company's premium finance loan
business.
Initially on September 29, 2011, the Company, and certain of its
officers and directors were named as defendants in a putative
securities class action filed in the Circuit Court of the 15th
Judicial Circuit in and for Palm Beach County, Florida, entitled
Martin J. Fuller v. Imperial Holdings, Inc. et al. Also named as
defendants were the underwriters of the Company's initial public
offering. That complaint asserted claims under Sections 11, 12
and 15 of the Securities Act of 1933, as amended, alleging that
the Company should have, but failed to disclose in the
registration statement for its initial public offering purported
wrongful conduct relating to its life finance business that gave
rise to the USAO Investigation. On October 21, 2011, an amended
complaint was filed that asserts claims under Sections 11, 12 and
15 of the Securities Act of 1933, based on similar allegations.
On October 25, 2011, the defendants removed the case to the United
States District Court for the Southern District of Florida.
On October 31, 2011, another putative class action case was filed
in the Circuit Court of the 15th Judicial Circuit in and for Palm
Beach County, Florida, entitled City of Roseville Employees
Retirement System v. Imperial Holdings, et al, naming the same
defendants and also bringing claims under Sections 11, 12 and 15
of the Securities Act based on similar allegations. On
November 28, 2011, the defendants removed the case to the United
States District Court for the Southern District of Florida. The
plaintiffs in the Fuller and City of Roseville cases moved to
remand their cases back to state court. Those motions were fully
briefed and argued.
On November 18, 2011, a putative class action case was filed in
the United States District Court for the Southern District of
Florida, entitled Sauer v. Imperial Holdings, Inc., et al, naming
the same defendants and bringing claims under Sections 11 and 15
of the Securities Act of 1933 based on similar allegations.
On December 14, 2011, another putative class action case filed in
United States District Court for the Southern District of Florida,
entitled Pondick v. Imperial Holdings, Inc., et al., naming the
same defendants and bringing claims under Sections 11, 12, and 15
of the Securities Act of 1933 based on similar allegations.
On February 24, 2012, the four putative class actions were
consolidated and designated: Fuller v. Imperial Holdings et al. in
the United States District Court for the Southern District of
Florida, and lead plaintiffs were appointed.
In addition, the underwriters of the Company's initial public
offering have asserted that the Company is required by its
Underwriting Agreement to indemnify the underwriters' expenses and
potential liabilities in connection with the litigation.
Insurance Coverage Declaratory Relief Complaint
On June 13, 2012, Catlin Insurance Company (UK) Ltd. ("Catlin")
filed a declaratory relief action against the Company in the
United States District Court for the Southern District of Florida.
The complaint seeks a determination that there is no coverage
under Catlin's primary Directors, Officers and Company Liability
Policy (the "Policy") issued to the Company for the period
February 3, 2012, to February 3, 2012, based on a prior and
pending litigation exclusion (the "Exclusion"). Catlin also seeks
a determination that it is entitled to reimbursement of the
approximately $800,000 in defense costs and fees advanced to the
Company in the first quarter of 2012 under the Policy if it is
determined that the Exclusion precludes coverage. As of the
filing of this Quarterly Report on Form 10-Q, the Company has not
yet been served with the complaint.
Derivative Demands
On November 16, 2011, the Company's Board of Directors received a
shareholder derivative demand from Harry Rothenberg (the
"Rothenberg Demand"), which was referred to the special committee
for a thorough investigation of the issues, occurrences and facts
relating to, connected to, and arising from the USAO Investigation
referenced in the Rothenberg Demand. On May 8, 2012, the
Company's Board of Directors received a derivative demand made by
another shareholder, Robert Andrzejczyk (the "Andrzejczyk
Demand"). The Andrzejczyk Demand, like the Rothenberg Demand was
referred to the special committee, which determined that it did
not contain any allegations that differed materially from those
alleged in the Rothenberg Demand. On July 20, 2012, the Company
(as nominal defendant) and certain of the Company's officers,
directors, and a former director were named as defendants in a
shareholder derivative action filed in the Circuit Court of the
15th Judicial Circuit in and for Palm Beach County, Florida,
entitled Robert Andrzejczyk v. Imperial Holdings, Inc. et al. The
complaint alleges, among other things, that the Special
Committee's refusal of the Andrzejczyk Demand was improper.
Proposed Settlement
On December 18, 2012, attorneys for the Company signed a Term
Sheet for Global Settlement Regarding Imperial Holdings, Inc.
Matters (the "Term Sheet") setting forth the terms upon which each
of the parties in the "Class Action Litigation, Derivative Demands
and the Insurance Coverage Declaratory Relief Complaint" would be
willing to settle the class action litigation and derivative
actions as well as the declaratory relief action filed by Catlin,
respectively. In addition to the Company's attorneys, the Term
Sheet was signed by attorneys representing the plaintiffs in the
class action lawsuits and derivative actions instituted against
the Company, as well attorneys for the Company's director and
officer liability insurance carriers ("D&O Carriers"), certain
individual defendants named in the class actions and the
underwriters in the Company's initial public offering.
While non-binding and subject to certain contingencies, the Term
Sheet provides that each of the parties will endeavor to enter
into definitive settlement agreements in respect of the class
action litigation, derivative action and insurance coverage
declaratory relief complaint. Although definitive settlement
agreements have not been executed as of the filing of this
Quarterly Report on Form 10-Q, the Company does expect to continue
to work in good faith with the other parties to the Term Sheet to
execute settlement agreements as soon as is practicable.
The terms of the class action settlement include a cash payment of
$12.0 million, of which $11.0 million is to be contributed by the
Company's primary and excess D&O Carriers and the issuance of two
million warrants for shares of the Company's stock with an
estimated value of $3.1 million at the date of the signing of the
Term Sheet. The value of the warrants were reassessed at
March 31, 2013, and resulted in an increase of $2.3 million. The
estimated fair value at March 31, 2013, was $5.4 million. The
warrants will have a five-year term with an exercise price of
$10.75 and will be issued when the settlement proceeds are
distributed to the claimants. In addition, the underwriters in
Company's initial public offering are to waive their rights to
indemnity and contribution by the Company. The Company
established a reserve related to the proposed settlement of $15.1
million, which is included in other liabilities and a receivable
for insurance recoverable from the Company's D&O Carrier of $11.0
million, which is included in prepaid and other assets. The $4.1
million net effect of the proposed settlement is included in legal
fees in the statement of operations for the year ended
December 31, 2012, and an additional $2.3 million is included in
the three month period ended March 31, 2013.
The derivative actions would be settled for implementation of
certain compliance reforms. The Term Sheet also contemplates
payment by the Company's primary D&O carrier of $1.5 million for
legal fees in respect of the derivative actions and the
contribution of $500,000 in the Company's stock.
In addition, the Term Sheet contemplates that the Company will
contribute $500,000 to a trust to cover certain claims under its
director and officer liability insurance policies.
The Company established a reserve to the proposed derivative
settlement and insurance trust of $2.5 million, which is included
in other liabilities and a receivable for insurance recoverable
from the Company's D&O Carrier of $1.5 million, which is included
in prepaid and other assets. The net effect of the settlement of
$1.0 million is included in legal fees in the settlement of
operations for the year ended December 31, 2012.
The proposed settlement also requires the Company to advance legal
fees to and indemnify certain individuals covered under the
policies. The obligation to advance and indemnify on behalf of
these individuals, while currently unquantifiable, may be
substantial and could have a material adverse effect on the
Company's financial position and results of operations.
Founded in 2006 and headquartered in Boca Raton, Florida, Imperial
Holdings, Inc., succeeded to the business of Imperial Holdings,
LLC and its assets and liabilities. The Company operates in two
reportable business segments: life finance, in which the Company
earns revenue/income from changes in the fair value of life
insurance policies that the Company acquires; and and structured
settlements, in which the Company purchases structured settlement
receivables at a discounted rate and sells these receivables to
third parties.
INTEL CORP: Awaits Court Ruling on Special Master's Report
----------------------------------------------------------
At least 82 separate class-action lawsuits have been filed against
Intel Corporation in the U.S. District Courts for the Northern
District of California, Southern District of California, District
of Idaho, District of Nebraska, District of New Mexico, District
of Maine, and District of Delaware, as well as in various
California, Kansas, and Tennessee state courts. These actions
generally repeat the allegations made in a now-settled lawsuit
filed against Intel by Advanced Micro Devices, Inc., in June 2005
in the U.S. District Court for the District of Delaware (AMD
litigation).
Like the AMD litigation, these class-action lawsuits allege that
Intel engaged in various actions in violation of the Sherman Act
and other laws by, among other things: providing discounts and
rebates to Intel manufacturer and distributor customers
conditioned on exclusive or near-exclusive dealing that allegedly
unfairly interfered with AMD's ability to sell its
microprocessors; interfering with certain AMD product launches;
and interfering with AMD's participation in certain industry
standards-setting groups.
The class actions allege various consumer injuries, including that
consumers in various states have been injured by paying higher
prices for computers containing Intel microprocessors. Intel
disputes these class-action claims and intends to defend the
lawsuits vigorously.
All of the federal class actions and the Kansas and Tennessee
state court class actions have been transferred by the
Multidistrict Litigation Panel to the U.S. District Court in
Delaware for all pre-trial proceedings and discovery (MDL
proceedings). The Delaware district court appointed a Special
Master to address issues in the MDL proceedings, as assigned by
the court.
In January 2010, the plaintiffs in the Delaware action filed a
motion for sanctions for Intel's alleged failure to preserve
evidence. This motion largely copies a motion previously filed by
AMD in the AMD litigation, which has settled. The plaintiffs in
the MDL proceedings also moved for certification of a class of
members who purchased certain PCs containing products sold by
Intel.
In July 2010, the Special Master issued a Report and
Recommendation (Report) denying the motion to certify a class. The
MDL plaintiffs filed objections to the Special Master's Report,
and a hearing on those objections was held in March 2011.
In September 2012, the court ruled that an evidentiary hearing
will be necessary to enable the court to rule on the objections to
the Special Master's Report, to resolve the motion to certify the
class, and to resolve a separate motion to exclude certain
testimony and evidence from the MDL plaintiffs' expert.
The hearing occurred in July 2013, and a decision from the court
will follow sometime after the completion of post-hearing briefs,
Intel disclosed in its July 29, 2013 Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarterly period
ended June 29, 2013.
All California class actions have been consolidated in the
Superior Court of California in Santa Clara County. The plaintiffs
in the California actions have moved for class certification,
which we are in the process of opposing.
At Intel's request, the court in the California actions has agreed
to delay ruling on this motion until after the Delaware district
court rules on the similar motion in the MDL proceedings. Given
the procedural posture and the nature of these cases, including
the fact that the Delaware district court has not determined
whether the matters before it may proceed as a class action, Intel
is unable to make a reasonable estimate of the potential loss or
range of losses, if any, arising from these matters.
INTEL CORP: Plaintiffs Appeal Final Judgment in McAfee Buyout Suit
------------------------------------------------------------------
Intel Corporation disclosed in its July 29, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarterly
period ended June 29, 2013, that plaintiffs in the McAfee, Inc.
Shareholder Litigation filed in April 2013 a notice of appeal from
a final judgment.
Intel on August 19, 2010, announced that it had agreed to acquire
all of McAfee Inc.'s common stock for $48.00 per share. Four
McAfee shareholders filed putative class-action lawsuits in Santa
Clara County, California Superior Court challenging the proposed
transaction. The cases were ordered consolidated in September
2010. Plaintiffs filed an amended complaint that named former
McAfee board members, McAfee and Intel as defendants, and alleged
that the McAfee board members breached their fiduciary duties and
that McAfee and Intel aided and abetted those breaches of duty.
The complaint requested rescission of the merger agreement, such
other equitable relief as the court may deem proper, and an award
of damages in an unspecified amount. In June 2012, the plaintiffs'
damages expert asserted that the value of a McAfee share for the
purposes of assessing damages should be $62.08.
In January 2012, the court certified the action as a class action,
appointed the Central Pension Laborers' Fund to act as the class
representative, and scheduled trial to begin in January 2013. In
March 2012, defendants filed a petition with the California Court
of Appeal for a writ of mandate to reverse the class certification
order; the petition was denied in June 2012. In March 2012, at
defendants' request, the court held that plaintiffs were not
entitled to a jury trial, and ordered a bench trial. In April
2012, plaintiffs filed a petition with the California Court of
Appeal for a writ of mandate to reverse that order, which the
court of appeal denied in July 2012. In August 2012, defendants
filed a motion for summary judgment. The trial court granted that
motion in November 2012, and entered final judgment in the case in
February 2013. In April 2013, plaintiffs filed a notice of
appeal.
Because the resolution of the appeal may materially impact the
scope and nature of the proceeding, Intel said it is unable to
make a reasonable estimate of the potential loss or range of
losses, if any, arising from this matter. Intel disputes the
class-action claims and intends to continue to defend the lawsuit
vigorously.
IPI INC: Ex-Employee Files Class Action Over Delayed Final Wages
----------------------------------------------------------------
Kyla Asbury, writing for The West Virginia Record, reports that a
former employee is suing IPI Inc. on behalf of all others
similarly situated for failing to timely pay final wages.
Andrae Lewis was employed by IPI until May 19, according to a
complaint filed July 16 in Kanawha Circuit Court.
Ms. Lewis claims the defendant failed to pay his final wages in a
timely manner.
The defendant employed the class members at its West Virginia
facilities at various times from 2008 until 2013, according to the
suit, and discharged the Class members at various times between
2008 and 2013.
Ms. Lewis claims the defendant violated the West Virginia Wage
Payment and Collection Act, which entitles the class members to
damages, including unpaid wages and benefits and liquidated
damages.
The class members consist of those persons employed between 2008
and 2013 at the defendant's West Virginia facilities who were
discharged by the defendant and to whom the defendant did not pay
their final wages and benefits in a timely manner following their
discharges, according to the suit.
Ms. Lewis is seeking compensatory damages. He is being
represented by Frank X. Duff -- fxd@schraderlaw.com -- and Sandra
K. Law -- skl@schraderlaw.com -- of Schrader Byrd & Companion
PLLC.
The case has been assigned to Circuit Judge Paul Zakaib Jr.
Kanawha Circuit Court case number: 13-C-1329
JAN K OVERWEEL: Recalls Ballarini Brand Gorgonzola Cheese
---------------------------------------------------------
Starting date: August 2, 2013
Type of communication: Recall
Alert sub-type: Health Hazard Alert
Subcategory: Microbiological - Listeria
Hazard classification: Class 1
Source of recall: Canadian Food Inspection
Agency
Recalling firm: Jan K Overweel Ltd.
Distribution: National
Extent of the product distribution: Retail
Affected products:
Brand name Common Name Size Code(s) on product
--------- ----------- ---- ------------------
Ballarini Gorgonzola D.O.P. 4 x 1.5 kg Code: ZAN03012,
Cremaverde (Random weight)
Best Before:
2013/10/17
Best Before:
2013/11/16
Ballarini Gorgonzola 150 g. Code: BAL10200
Dolce DO Best Before:
2013/09/04
Best Before:
2013/10/08
The Canadian Food Inspection Agency (CFIA) and Jan K Overweel Ltd.
are warning the public not to consume the Ballarini brand
Gorgonzola cheese products because the products may be
contaminated with Listeria monocytogenes. Pictures of the
recalled products are available at: http://is.gd/gLZPPN
Also affected by this alert are the products which may have been
sold in smaller packages, cut and wrapped by some retailers.
Consumers are advised to contact the retailer to determine if they
have the affected products.
There have been no reported illnesses associated with the
consumption of these products.
The importer, Jan K Overweel Ltd., Woodbridge, ON, is voluntarily
recalling the affected products from the marketplace. The CFIA is
monitoring the effectiveness of the recall.
KINDER MORGAN: Sept. 9 Hearing on Accord in Copano Merger Suits
---------------------------------------------------------------
A hearing has been scheduled for September 9, 2013, to approve the
settlement of lawsuits over Kinder Morgan Energy Partners, L.P.'s
merger with Copano Energy L.L.C., according to Kinder Morgan's
July 29, 2013 filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2013.
Three putative class action lawsuits were filed in connection with
Kinder Morgan Energy Partners, L.P.'s merger with Copano: (i)
Schultes v. Copano Energy, L.L.C., et al. (Case No. 06966), in the
District Court of Harris County, Texas, which is referred to as
the Texas State Action; (ii) Bruen v. Copano Energy, L.L.C., et
al. (Case No. 4:13-CV-00540) in the United States District Court
for the Southern District of Texas, which is referred to as the
Texas Federal Action; and (iii) In re Copano Energy, L.L.C.
Shareholder Litigation, Case No. 8284-VCN in the Court of Chancery
of the State of Delaware, which is referred to as the Delaware
Action, which reflects the consolidation of three actions
originally filed in the Court of Chancery.
The Actions name Copano, R. Bruce Northcutt, William L. Thacker,
James G. Crump, Ernie L. Danner, T. William Porter, Scott A.
Griffiths, Michael L. Johnson, Michael G. MacDougall, Kinder
Morgan GP, Kinder Morgan Energy Partners and Merger Sub as
defendants. The Actions are purportedly brought on behalf of a
putative class seeking to enjoin the merger and allege, among
other things, that the members of Copano's board of directors
breached their fiduciary duties by agreeing to sell Copano for
inadequate and unfair consideration and pursuant to an inadequate
and unfair process, and that Copano, Kinder Morgan Energy
Partners, Kinder Morgan GP and Merger Sub aided and abetted such
alleged breaches. In addition, the plaintiffs in each of the Texas
State Action and the Delaware Action allege that the Copano
directors breached their duty of candor to unitholders by failing
to provide the unitholders with all material information regarding
the merger and/or made misstatements in the preliminary proxy
statement. The plaintiffs in the Texas Federal Action also assert
a claim under the federal securities laws alleging that the
preliminary proxy statement omits and/or misrepresents material
information in connection with the merger.
On April 21, 2013, the parties in all the Actions executed a
Memorandum of Understanding pursuant to which Copano agreed to
make certain additional disclosures concerning the merger, and the
plaintiffs agreed to enter into a stipulation of settlement
providing for full settlement and dismissal with prejudice of each
of the Actions. The parties then prepared and filed a Stipulation
of Settlement with the Delaware Chancery Court, and on June 28,
2013, Copano announced that the parties had reached an agreement
to settle all claims asserted against all defendants. The
settlement does not require the defendants to pay any monetary
consideration to the proposed settlement class, and is subject to,
among other conditions, approval of the Delaware Chancery Court.
LENNOX HEARTH: Recalls 1,800 Superior Gas Fireplaces
----------------------------------------------------
Starting date: August 1, 2013
Posting date: August 1, 2013
Type of communication: Consumer Product Recall
Subcategory: Household Items, Appliances
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public
Identification number: RA-34825
Affected products: Lennox and Superior Gas Fireplaces
The recall involves natural gas or propane Lennox and Superior
brand fireplaces with the following model and serial numbers:
Lennox model numbers include:
-- ELDV;
-- LDV;
-- MLBV-40;
-- MLDVT;
-- MPB;
-- MPD;
-- MPDP;
-- RHAP54; and
-- SYM
Superior model numbers include:
-- SDV;
-- SLDVT; and
-- SLBV
Serial numbers have 10 digits starting with:
-- 6412D4;
-- 6412E4;
-- 6412F4;
-- 6412G4;
-- 6412H4;
-- 6412D7;
-- 6412E7;
-- 6412F7;
-- 6412G7; and
-- 6412H7
The model, serial number and the Lennox or Superior brand names
are printed on the rating plate located in the control box area of
the fireplace.
Defective fireplace gas connectors can leak, posing a fire hazard.
Pictures of the recalled products are available at:
http://is.gd/w8GIhV
Lennox Hearth Products has received eight reports, three of which
were in Canada, of gas connectors leaking in fireplaces.
No injuries have been reported.
Health Canada has not received any reports of incidents or
injuries related to the use of these fireplaces in Canada.
Approximately 1,800 of the recalled fireplaces were sold at
fireplace stores and by HVAC retailers and installers in Canada.
The recalled fireplaces were manufactured in the United States and
sold from April 2012 through December 2012.
Companies:
Manufacturer: Lennox Hearth Products
Nashville
Tennessee
United States
Consumers should stop using the recalled gas fireplaces
immediately, turn off the gas to the fireplace and contact Lennox
Hearth Products for a free inspection and replacement of the
leaking gas connector. Lennox Hearth Products and its
distributors are contacting purchasers directly.
NEW YORK, NY: Jury Clears Gov. Pataki From Sex Offenders' Claims
----------------------------------------------------------------
Nick DiVito at Courthouse News Service reports that former New
York Gov. George Pataki did not violate the rights of convicted
sex offenders who claimed that they were kept in psychiatric
hospitals after completing their prison sentences, a jury ruled.
U.S. District Judge Jed Rakoff had already ruled that the program
violated prisoners' rights to due process, but a jury was left
with the task of deciding the extent to which Pataki and other
state officials and psychiatric hospital officials were involved
in carrying out the policy.
Sharon Carpinello, former commissioner of the Office of Mental
health, was the only defendant found liable and faces just $1 in
damages.
Jurors cleared two other defendants of liability over the so-
called Sexually Violent Predator initiative: former Correctional
Services Commissioner Glenn Goord and former director of the
Manhattan Psychiatric Center Eileen Consilvio.
A class of more than 127 "sexually violent predators" sued Pataki
and the other officials in November 2009, saying they were
committed to a state psychiatric hospital or other psychiatric
program between September 2005 and April 2007 even after they
served their prison sentences. They said they should have been
released, or should have been released sooner.
The practice ended in 2006 after Rakoff ruled that several
plaintiffs deserved hearings before they were committed.
After the jury verdict's announcement, Pataki's attorney Abbe
Lowell said in a statement that the former governor "sought to
ensure the safety of all New Yorkers and make sure that they were
well-served by the government. He achieved this by keeping the
law and the constitution priorities all the time. The jury
verdict confirmed this."
During the trial, defense attorneys pointed out that fewer than
200 inmates of the nearly 800 examined were committed to mental
institutions.
The case is Bailey v. Pataki, Case No. 08 Civ. 8563, in the U.S.
District Court for the Southern District of New York.
NOVA DIABETES: Recalls 21 Lots of Nova Max Glucose Test Strips
--------------------------------------------------------------
The U.S. Food and Drug Administration on July 31 disclosed that it
is working with Nova Diabetes Care to recall 21 lots of glucose
test strips marketed under the brand names Nova Max Blood Glucose
Test Strips and Nova Max Plus Glucose Meter Kits. Nova Diabetes
Care announced a recall on July 26, 2013.
The recall pertains to certain lots of these test strips
distributed in the United States, Canada, Chile, Peru, Argentina,
Dominican Republic, Jamaica, Puerto Rico, United Kingdom, Germany,
Belgium, Finland, Congo, and Saudi Arabia. As many as 62 million
strips may be affected by the recall. Other Nova Diabetes Care
products are not affected by the recall.
The test strips under recall may report a false, abnormally high
blood glucose result. Under certain conditions, a false,
abnormally high blood glucose level could result in an insulin
dosing error, requiring the user to seek immediate medical
attention.
The test strips, which were manufactured from December 2011 to
April 2013, are sold in retail stores and online directly to
consumers, and are used in health care facilities. The test
strips became contaminated with a chemical used during the
manufacturing process. The FDA is working with Nova to investigate
the problem and prevent it from recurring.
"It is important that patients using these test strips discontinue
their use immediately," said Alberto Gutierrez, director of the
Office of In Vitro Diagnostics and Radiological Health in FDA's
Center for Devices and Radiological Health. "A false reading
could result in patient harm and delay critical care."
The FDA has provided recommendations for people with diabetes and
health care professionals below that explain how to determine
whether a particular lot is affected, how to order free
replacement strips and precautions to take if consumers must use
the recalled strips.
Recommendations for Patients:
-- Check to confirm if you have blood glucose test strips from
the affected lots by visiting www.novacares.com/news/nova-max-
recall.php or by contacting Nova Diabetes Care customer service at
1-800-681-7390. Consumers will be directed to return recalled test
strips to the company in return for replacement strips at no
charge.
-- Immediately discontinue use of the recalled strips and take
the necessary steps to continue to monitor your blood sugar.
-- Use an alternate method to measure blood glucose (such as a
different test system) or purchase at least two weeks worth of
new, unaffected strips while waiting for replacement strips.
-- Continue to test your blood glucose, even if the only test
strips available to you are from affected lots. Take the
following precautions to reduce the chance of a false reading:
-- As stated in the Blood Glucose Monitor Owners Guide and Nova
Max Glucose Test Strip Product Insert, perform a quality control
solution test to confirm that your vial of Nova Max Glucose Test
Strips is working correctly. Do not use a test strip vial if
control solution results are not within the expected range.
-- Verify all elevated blood glucose test results that are not
consistent with your diabetes history by repeating the test using
a new blood glucose test strip from a different vial (if
available) or the same vial (if a new vial is unavailable).
-- Contact your health care provider immediately if your
reported blood glucose result(s) are not consistent with your
diabetes history, how you feel, or if you think your results are
not accurate (higher than expected).
-- Pay special attention to signs and symptoms of high blood
sugar (hyperglycemia) and low blood sugar (hypoglycemia). Never
ignore symptoms or make significant changes to your diabetes
management program without speaking to your health care
professional.
-- Symptoms of high blood sugar include excessive thirst,
excessive urination, blurred vision, weakness, nausea, vomiting
and abdominal pain. If you are experiencing any of these symptoms
or are not feeling well, contact your health care professional
immediately.
-- Symptoms of low blood sugar may include trembling, excessive
sweating, weakness, hunger, confusion, and headache. Some
individuals may have no symptoms at all before they develop
unconsciousness or seizures. It is important to treat low blood
sugars promptly to avoid loss of consciousness or a seizure. If
you are unable to obtain unaffected strips, you should contact
your health care provider for advice on how to treat these
symptoms before they occur.
Recommendations for Health Care Professionals:
To determine if you have product being recalled:
Call Nova Diabetes Care Customer Service at 1-800-681-7390 to
verify the Lot # for Nova Max Glucose Test Strips and Nova Max
Plus Glucose Meter Kits.
Call Nova at 1-800-681-7390 for shipment of replacement product.
Recommendations for Pharmacists:
To determine if you have product being recalled:
Call Nova Diabetes Care Customer Service at 1-800-681-7390 to
verify the Lot # for Nova Max Glucose Test Strips and Nova Max
Plus Glucose Meter Kits.
Patients and health care professionals should report serious
adverse events (side effects) with the device to the FDA's
MedWatch Adverse Event Reporting program either online, by regular
mail, fax, or phone.
Online: http://www.fda.gov/MedWatch/report.htm
Regular Mail: use postage-paid, pre-addressed Form FDA 3500
available at: http://www.fda.gov/MedWatch/getforms.htm
Mail to address on the pre-addressed form.
Fax: 800-FDA-0178
Phone: 800-332-1088
PFIZER CANADA: Sechelt Woman Leads Champix Class Action
-------------------------------------------------------
Christine Wood, writing for Coast Reporter, reports that Sechelt's
Alicia Pickering doesn't want anyone else to suffer the way she
has for the past five years, so she's leading a class action
lawsuit against Pfizer Canada Inc. aimed at stopping the sale of
Champix, a smoking cessation drug sold by the company.
She said the drug forever altered her life, causing a permanent
"drug induced mood disorder" that resulted in the loss of her job
and difficulties coping with life in the face of severe depression
and anxiety.
"It's a permanent mental illness I have because of this,"
Ms. Pickering said, unwilling to put a name to her condition for
fear of stigma. She has kept her illness secret for many years,
worried people would judge her for it.
"But I'm sort of at a place now where I'm willing to give up my
privacy in order to warn others," Ms. Pickering said. She
described herself as a "normal healthy mom" prior to taking
Champix for three weeks in May of 2008.
"It was noticeable something was very, very wrong on about day
four," she said. "We'd just moved into our dream house, it was
supposed to be exciting and happy and I was sitting on my couch
sobbing not knowing why. I was hysterical. It was like this
overwhelming black cloud had sort of enveloped me and I became
bedridden, couldn't work, had thoughts of suicide. I was scared
to drive because I had visions of just driving myself right off
the road. I felt so bad and I had no desire to feel better and I
have never, ever felt that way."
It was her mother who suggested Champix might be to blame and
Ms. Pickering stopped taking the drug after three weeks' use;
however, her condition did not improve. By August 2009,
Ms. Pickering had to be admitted to hospital because the
depression "had gotten so bad." She credits her faith in God and
the counseling of Dr. Karl Enright with getting her through those
dark times.
In early 2010, curious if others had similar reactions to the
smoking cessation drug, Ms. Pickering spent some time searching
on-line.
"I was horrified to find out there are hundreds and hundreds of
people out there who have suffered the way I have and in different
ways as well," Ms. Pickering said. "It just so happened, and I
believe God's hand was in this, but I came across the website for
Klein Lyons, who is my lawyer, and they were talking about Champix
and if you had any adverse side effects to give them a run down
and let them know because they were working on getting together a
class action lawsuit."
Soon Ms. Pickering was named as a lead plaintiff in the class
action suit along with Nicole McIvor of Princeton and Patricia
Clow on behalf of her late daughter, Heidi Clow of Victoria.
Heidi took her own life after taking Champix for a few months to
quit smoking and Ms. McIvor attempted suicide by trying to drive
her car into an oncoming logging truck.
The class action lawsuit, recently certified in Ontario Superior
Court, is open to any person who took Champix between April 2,
2007 (when it started being sold in Canada) and May 31, 2010,
which is when the drug's label was changed to include the most
serious warning available in Canada.
"People who took the drug prior to that date did not have the
benefit of such a warning," said Ms. Pickering's lawyer Doug
Lennox. "We allege that the drug company had sufficient
information prior to 2010, and indeed prior to their even selling
it in Canada starting in 2007 to know that such a warning was
necessary. The drug was launched first in Europe and the U.S.
before it was ever sold in Canada and there were already many
reports of adverse effects from the drug from those countries by
2007."
Currently there are approximately 200 Canadians who have signed on
to the lawsuit.
Pfizer Canada stands behind Champix and told Coast Reporter "there
is no reliable scientific evidence demonstrating that Champix
causes the injuries alleged."
"Pfizer Canada provided appropriate and accurate information to
regulators, physicians and patients about the safety and efficacy
of Champix, which Health Canada approved, in accordance with
Health Canada's labeling requirements," said Christina Antoniou,
manager of corporate affairs for Pfizer Canada Inc. "Champix
(known as Chantix in the U.S.) is a proven aid to smoking
cessation treatment and an important treatment option approved in
101 countries around the world, including Canada, and has been
prescribed to over 18 million patients worldwide."
Ms. Pickering admits that Champix took away her desire to smoke
but added, "it also took away my desire to live."
Former users of Champix must decide if they want to participate in
the class action lawsuit before Sept. 20, 2014.
PROCTER & GAMBLE: Appeals Court Overturns Class Action Settlement
-----------------------------------------------------------------
Andrew Harris, writing for Bloomberg News, report that a Procter &
Gamble Co. settlement of a consumer lawsuit over its Pampers "Dry
Max" diapers has been overturned by a U.S. appeals court that
called the relief afforded to most customers "illusory."
The Cincinnati-based panel's 2-1 ruling on Aug. 2 quashed a 2011
agreement it said gave named plaintiffs $1,000 per affected child,
class counsel $2.73 million, "and provides the unnamed class
members with nothing but nearly worthless injunctive relief."
The litigation began in 2010 after complaints that the diapers
tended to cause a severe diaper rash. The U.S. Consumer Product
Safety Commission and a Canadian agency found no connection
between the product and the rash after reviewing 4,700 cases, the
appeals court said.
Still, the litigants fashioned a settlement that barred class
members from opting out or from being able to participate in any
future group suit against Procter & Gamble, entitled them to a
one-box purchase price refund provided they could produce an
original receipt and required the company to make temporary
changes to its product packaging and on its website.
Program Dubious
Objections raised by three class members were overridden by U.S.
District Judge Timothy S. Black in Cincinnati, who approved the
accord in September 2011. One objector, Daniel Greenberg,
appealed.
"The value of the one-box refund program to unnamed class members
is dubious on its face," U.S. Circuit Judge Raymond Kethledge
wrote for the court, noting P&G had already offered such a program
independent of the settlement.
"The relief that this settlement provides to unnamed class members
is illusory," Judge Kethledge said. "But one fact about this
settlement is concrete and indisputable: $2.73 million is $2.73
million."
U.S. Circuit Judge R. Guy Cole dissented, saying that while the
consumers' recovery may not have been worth much, their claims
were worth even less.
"In the absence of this settlement, class members would have
almost certainly gotten nothing," Judge Cole said.
Mr. Greenberg's attorney, Adam Schulman of the Washington-based
Center for Class Action Fairness LLC, didn't immediately reply to
a voice-mail message seeking comment. Lynn Sarko --
lsarko@kellerrohrback.com -- the plaintiffs' attorney with
Seattle-based Keller Rohrback LLP, couldn't immediately be reached
for comment.
Paul Fox, a spokesman for Cincinnati-based P&G, said he couldn't
immediately comment on the court's decision.
The case is In re: Dry Max Pampers Litigation, 11-4156, U.S. Court
of Appeals for the 6th Circuit (Cincinnati).
PROCTER & GAMBLE: Gupta Beck Discusses 6th Circuit Ruling
---------------------------------------------------------
Brian Wolfman, Of Counsel at Gupta Beck PLLC, in an article for
Consumer Law & Policy Blog, reports that on Aug. 2, in Greenberg
v. Proctor & Gamble, by a 2-1 vote, the 6th circuit threw out a
class-action settlement on the ground that (1) it provided
virtually nothing of value to the class members while the named
representatives got significant "incentive" payments ($1,000 times
the number of their diaper-using kids), and the class lawyers
received a large fee, and (2) the named representatives were
inadequate representatives of the class. The class alleged that
certain diapers sold by the defendant caused severe diaper rash.
The majority opinion discusses a number of issues.
Highlights
The majority opinion's opening two paragraphs give you an
overview:
Class-action settlements are different from other settlements.
The parties to an ordinary settlement bargain away only their own
rights -- which is why ordinary settlements do not require court
approval. In contrast, class-action settlements affect not only
the interests of the parties and counsel who negotiate them, but
also the interests of unnamed class members who by definition are
not present during the negotiations. And thus there is always the
danger that the parties and counsel will bargain away the
interests of unnamed class members in order to maximize their own.
This case illustrates these dangers. The class is made up of
consumers who purchased certain kinds of Pampers diapers between
August 2008 and October 2011. The parties and their counsel
negotiated a settlement that awards each of the named plaintiffs
$1000 per "affected child," awards class counsel $2.73 million,
and provides the unnamed class members with nothing but nearly
worthless injunctive relief. The district court found that the
settlement was fair and certified the settlement class. We
disagree on both points, and reverse.
Here's the gist of the dissent's rebuttal:
Although the relief offered to the unnamed class members may not
be worth much, their claims appear to be worth even less. Nobody
disputes that the class's claims in this case had little to no
merit. In the absence of this settlement, class members would
almost certainly have gotten nothing. And even with the
settlement, unnamed class members remain free to try their luck,
as the settlement preserves their right to sue for personal injury
and actual damages caused by Dry Max diapers . Thus, the concern
that plaintiffs' counsel "bargained away" some valuable "interest"
is misplaced. A very different settlement would likely be before
us if the [Consumer Product Safety] Commission's investigation had
not exculpated Dry Max diapers.
One of the forms of "injunctive relief" that class counsel claimed
benefitted the class was a program that would allow a refund on
one box of diapers. Here's what the court said about that:
"We begin with the one-box refund program. Consumers cannot
benefit from the program unless they have retained their original
receipt and Pampers-box UPC code, in some instances for diapers
purchased as long ago as August 2008. [Objector] Greenberg
sensibly asks who does this sort of thing. We have no answer.
Neither do the parties -- or more precisely they have offered
none. The omission is conspicuous, for the refund program here is
merely a rerun of the very same program that P&G had already
offered to its customers from July 2010 to December 2010. P&G
surely has data as to the numbers of consumers who obtained
refunds during that time; P&G's counsel conceded as much at oral
argument on appeal. And yet -- even after Mr. Greenberg called
out the parties on this very point in his objections to the
district court -- P&G chose not to provide that data in arguing
that the settlement is fair."
SIRIUSXM: Sued Over Alleged Infringement of Older Recordings
------------------------------------------------------------
Eriq Gardner, writing for The Hollywood Reporter, reports that a
new proposed class action raises the theory that SiriusXM has
infringed millions of these older recordings from thousands of
artists. Damages are alleged to be at least $100 million, but for
a company that last reported quarterly revenues of $940 million,
the attorneys representing the plaintiff believe that damage
figure to be on the conservative side.
The lead plaintiffs in the case are Flo & Eddie of The Turtles,
the iconic band whose hits include "Happy Together," "It Ain't Me
Babe" and "She'd Rather Be With Me."
The band has a history of bringing big cases, but the reason why
this lawsuit, filed in L.A. Superior Court, commands notice comes
down to the magical number of 1972.
Feb. 15, 1972, is the exact day on which sound recordings began
falling under federal copyright protection. For recorded music
created before then, the situation is a bit more murky. The
question this lawsuit addresses is: What laws cover those
recordings?
Every day, SiriusXM transmits thousands of pre-1972 recordings and
does so likely with the confidence that Sec. 114 of the Copyright
Act gives them this authority. That statute carves out
limitations on exclusive rights and also sets up the way that
owners of recordings get compensated. Currently, the Copyright
Royalty Board is the entity that sets statutory royalty rates for
satellite radio, and SoundExchange is the entity that collects the
royalties to pass along.
But it is the contention of Flo & Eddie, representing themselves
and others similarly situated, that federal law can't be relied
upon when dealing with pre-'72 music on satellite radio. Here's
the complaint, filed on Aug. 1.
Among the cases that could support this theory is Goldstein v.
California, a 1972 U.S. Supreme Court Case dealing with a piracy
dispute that gave deference to state laws. The ruling held,
"Until and unless Congress takes further action with respect to
recordings fixed prior to February 15, 1972, the California
statute may be enforced against acts of piracy such as those which
occurred in the present case."
In the present action, the plaintiffs assert misappropriation
under California law as well as unfair competition and conversion.
Those claims were recently tested in favor of record label
plaintiffs in a California case against BlueBeat, a website that
attempted to use Sec. 114 to, among other things, sell 25 cent
songs from The Beatles. A judge found BlueBeat liable for
misappropriation of pre-'72 recordings.
If there is another reason why Sirius should be concerned that
state laws aren't pre-empted by federal statutes that confer upon
it distribution rights, a case decided earlier this year by a New
York appeals court might give the satellite giant some pause.
There, appeals judges held that music streaming site Grooveshark
couldn't take advantage of DMCA safe harbors -- another federal
law -- to defend against charges of pirating pre-'72 sound
recordings. A different jurisdiction, and dealing with digital
rather than satellite distribution, but in the wake of that
ruling, many legal commentators warned that all hell could break
loose when determining liability on older recordings.
Now, The Turtles are stepping up to give Sirius a major challenge.
This isn't the first legal fight for the band.
In 1971, they sued their record label, White Whale, for accounting
irregularities, and wound up recovering rights to their original
masters. Years later, they brought one of the first "sampling"
lawsuits against De La Soul. They've also sued record pirates and
brought claims against advertisers for using their voices without
authorization in commercials. They are now being represented by
Henry Gradstein and other attorneys at Gradstein & Marzano.
Besides hundreds of millions of dollars, the plaintiffs are
demanding an injunction against the defendant distributing pre-'72
recordings. The lawsuit could conceivably stop a lot of classic
rock and jazz being played on SiriusXM.
TAYLOR FARMS: FDA Says Stomach Bug Outbreak Linked to Farm
----------------------------------------------------------
Mary Clare Jalonick, writing for The Associated Press, reports
that the Food and Drug Administration says an outbreak of stomach
illnesses in Iowa and Nebraska is linked to salad mix served at
Olive Garden and Red Lobster restaurants in those states and
supplied by a Mexican farm.
The outbreak of cyclospora infections has sickened more than 400
people in 16 states in all. The agency says it is working to
determine whether the salad mix is the source of illnesses in the
other 14 states.
"It is not yet clear whether the cases reported from other states
are all part of the same outbreak," the agency said in a
statement. "The investigation of increased cases of
cyclosporiasis in other states continues."
Both Olive Garden and Red Lobster are owned by Orlando-based
Darden Restaurants. In a statement, Darden spokesman Mike
Bernstein said the FDA's announcement is "new information."
"Nothing we have seen prior to this announcement gave us any
reason to be concerned about the products we've received from this
supplier," Mr. Bernstein said.
The FDA said it traced illnesses from the restaurants in Nebraska
and Iowa to Taylor Farms de Mexico, the Mexican branch of Salinas,
Calif.-based Taylor Farms. The company, which provides produce to
the food service industry, said its facility located about 180
miles north of Mexico City in San Miguel de Allende is the only
one of its 12 sites to be connected to the cases.
In a statement on the company's Web site, Taylor Farms says the
Mexican facility is "state of the art and has an exceptional food
safety record." The statement said the company is working with
FDA investigators who are looking at the facility and that the
product is out of the food supply.
The FDA said it had audited the Mexican processing facility in
2001 and found "no notable issues." The agency said it would
increase surveillance efforts for green leafy products imported
from Mexico.
The most recent known illness in the two states linked to the
infected salad was in Nebraska a month ago. The typical shelf
life for a salad mix is up to 14 days.
There have been more recent illnesses in other states. According
to the Centers for Disease Control and Prevention, the most recent
illness was July 23 but centers did not specify a location.
The agency said its investigation has not implicated any packaged
salad sold in grocery stores.
TIME WARNER: Accused of Not Paying Employee's Overtime Wages
------------------------------------------------------------
Angel Corona, as individual, and on behalf of all others similarly
situated v. Time Warner Cable Inc., a Delaware Corporation, dba
Time Warner Cable; Time Warner NY Cable LLC, a Delaware Limited
Liability Company, dba Time Warner Cable; and Does 1 through 10,
Case No. 2:13-cv-05521-PSG-VBK (C.D. Cal., July 31, 2013) accuses
the Defendants of failing to pay all overtime wages, violating the
Fair Labor Standards Act and violating the Labor Code.
The Plaintiff alleges that he has been deprived of the rights
guaranteed to him by the FLSA, Labor Code and the California
Business and Professions Code. He also alleges that the
Defendants failed to make all required meal and rest periods
available to non-exempt employees.
Mr. Corona is a resident of Los Angeles, California. During the
four years preceding the filing of the complaint, he was employed
by the Defendants as an hourly non-exempt employee cable installer
at a facility in Van Nuys, California.
The Defendants own and operate cable system, and provide
entertainment and information services to customers in Los Angeles
County and the state of California, as well as other states. TWC,
a Delaware corporation, is among the largest providers of video,
high-speed data and voice services in the U.S. Time Warner NY is
a wholly owned subsidiary of TWC. The Plaintiff does not know the
true names, capacities and relationships of the Doe Defendants.
The Plaintiff is represented by:
Stephen Z. Boren, Esq.
Paul Keith Haines, Esq.
BOREN OSHER AND LUFTMAN
5900 Wilshire Blvd., Suite 920
Los Angeles, CA 90036
Telephone: (323) 937-9900
Facsimile: (323) 937-9910
E-mail: sboren@bollaw.com
phaines@bollaw.com
- and -
Hernaldo Jose Baltodano, Esq.
Erica Flores Baltodano, Esq.
BALTODANO AND BALTODANO LLP
1411 Marsh Street, Suite 102
San Luis Obispo, CA 93401
Telephone: (805) 322-3412
Facsimile: (805) 322-3413
E-mail: hjb@bbemploymentlaw.com
efb@bbemploymentlaw.com
TROIS COMTOIS: Recalls Morbier Cheese for Possible Health Risk
--------------------------------------------------------------
Trois Comtois of Poligny, France is recalling all Trois Comtois
brand Morbier cheese lot #949038 because it has the potential to
be contaminated with Listeria monocytogenes, an organism which can
cause serious and sometimes fatal infections in young children,
frail or elderly people, and others with weakened immune systems.
Although healthy individuals may suffer only short-term symptoms
such as high fever, severe headache, stiffness, nausea, abdominal
pain and diarrhea, Listeria infection can cause miscarriages and
stillbirths among pregnant women.
Product was distributed in MD, VA, OH, Washington DC, IL, IN, LA,
MI, MN, MO, NE, OK, TX, WI, CA, OR, WA, AZ, UT, HI between June
1st and July 24th, 2013. Products were sold to supermarkets and
gourmet stores.
The cheese in question is Trois Comtois brand Morbier, lot#949038
(on the wheel), it comes as a 11lb wheel and is usually cut and
wrapped. It has a vegetable ash line in the middle of the cheese.
Pictures of the recalled products are available at:
http://www.fda.gov/Safety/Recalls/ucm363736.htm
No illness has been reported to date.
The recall was the result of a routine sampling program by the FDA
which revealed the finished products contained the bacteria.
Trois Comtois has ceased the production and distribution of the
product as FDA and Trois Comtois continue their investigation as
to what caused the problem.
Each and every distributor and retailer are being contacted in an
effort to recall any and all remaining product in the marketplace.
If you believe that you have purchased any of this cheese please
contact your distributor or retailer for a full refund. If you
have any questions please call Trois Comtois Monday-Friday from
9am to 5pm (EST) at +1 201 448 8787 and mention recall.
TRUE RELIGION: Settlement Awaits Appropriate Documentation
----------------------------------------------------------
In its July 29, 2013 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly report period ended June 30,
2013, True Religion Apparel, Inc., disclosed that a settlement
reached among parties in litigation over the Company's planned
merger with TowerBrook Capital Partners L.P., remains subject to
appropriate documentation by the parties and approval by the
court.
On May 10, 2013, Vernon, California-based True Religion announced
that it entered into a definitive merger agreement with
TowerBrook, the New York and London-based investment management
firm, in a transaction valued at approximately $824 million.
Under the terms of the merger agreement, TowerBrook will acquire
all of the outstanding shares of True Religion common stock for
$32.00 per share in cash. The merger is subject to approval from
True Religion stockholders, regulatory approvals and other
customary closing conditions. The transaction is expected to close
in the third quarter of 2013. Pursuant to the Merger Agreement,
True Religion suspended its regular quarterly dividend through the
earlier to occur of the closing of the merger or the expiration of
the Merger Agreement.
Between May 14, 2013 and May 16, 2013, three putative class action
complaints were filed in the Superior Court of California, Los
Angeles County in connection with the proposed Merger. Between
May 21, 2013 and May 28, 2013, two putative class action
complaints were filed in Delaware Chancery Court in connection
with the proposed Merger. Each complaint names as defendants the
Company and the Board, and TowerBrook and certain of its
subsidiaries. The complaints generally allege that True
Religion's directors breached their fiduciary duties by engaging
in a flawed sales process, by approving an inadequate price, and
by agreeing to provisions that would allegedly preclude another
interested buyer from making a financially superior proposal to
acquire the Company. The complaints also allege that one or more
of True Religion, TowerBrook, and certain of TowerBrook's
subsidiaries aided and abetted the alleged breaches of fiduciary
duties by the directors. Among other things, Plaintiffs seek an
injunction (to prevent consummation of the Merger), damages,
declaratory relief, and attorneys' fees.
On June 7, 2013, the Delaware Chancery Court consolidated the
Delaware Actions and on June 14, 2013, the plaintiffs in the
California Actions agreed to litigate the shareholder claims in
the consolidated Delaware actions and stay the California Actions
pending entry of final judgment in the Delaware Action.
On July 17, 2013, the Defendants agreed on a settlement in
principle with the plaintiffs. The settlement remains subject to
appropriate documentation by the parties and approval by the
court. As part of the settlement, True Religion agreed to enhance
disclosures to its Proxy Statement, which were provided in an 8-K
filed with the SEC on July 18, 2013.
VITA HEALTH: Recalls Extra Strength Daytime Flu Relief
------------------------------------------------------
Starting date: July 22, 2013
Posting date: August 2, 2013
Type of communication: Drug Recall
Subcategory: Drugs
Hazard classification: Type III
Source of recall: Health Canada
Issue: Product Safety
Audience: General Public, Healthcare
Professionals, Hospitals
Identification number: RA-34815
Recalled products:
-- Rexall Extra Strength Flu Relief Daytime;
-- Selection Extra Strength Flu Relief Daytime; and
-- Option+ Extra Strength Flu Relief Daytime
The affected products were distributed to the retail level,
nationally in Canada only.
Recalling Firm:
Vita Health Products
150 Beghin Ave
Winnipeg
R2J 3W2
Manitoba
Canada
Marketing Authorization Holder:
Vita Health Products
150 Beghin Ave
Winnipeg
R2J 3W2
Manitoba
Canada
WAL-MART STORES: Employees' Discrimination Class Action Tossed
--------------------------------------------------------------
Daisy Nguyen, writing for The Associated Press, reports that a
judge rejected on Aug. 2 an attempt to file a class action
discrimination lawsuit on behalf of 150,000 Wal-Mart women
employees in California who claimed their male colleagues were
paid more and promoted faster than them.
The lawsuit filed in San Francisco federal court was a scaled-down
version of an initial complaint filed in 2001 that sought to
represent 1.6 million women nationwide. But the U.S. Supreme
Court tossed out that class action lawsuit in 2011, ruling it
found no convincing proof of companywide discrimination on pay and
promotion policy. The court also said there were too many women
in too many jobs at Wal-Mart to wrap into one lawsuit.
After that setback, the women's lawyers filed smaller class action
lawsuits, alleging discrimination occurred in different states and
Wal-Mart "regions."
On Aug. 2, U.S. District Judge Charles Breyer ruled the smaller
suit on behalf of California women employees was still too
disparate and wide ranging to qualify as a class action lawsuit.
He also found that the lawyers failed to show statistical and
anecdotal evidence of gender bias.
"Though plaintiffs insist that they have presented an entirely
different case from the one the Supreme Court rejected, it is
essentially a scaled-down version of the same case with new labels
on old arguments," Judge Breyer wrote.
The ruling does not consider whether the women were victims of
discrimination and allows their individual claims to proceed in
litigation.
Plaintiffs' attorney Randy Renick -- rrr@hadsellstormer.com --
said he planned to appeal Judge Breyer's ruling.
"We are deeply disappointed in the court's decision regarding what
we remain convinced is a strong class action case against Wal-Mart
for wide scale gender discrimination," he said in a statement.
Wal-Mart said it was pleased with the ruling.
"We've said all along that if someone believes they have been
treated unfairly, they deserve to have their timely, individual
claims heard in court," the Bentonville, Ark.-based company said
in a statement.
WELLPOINT INC: Books $90MM Expense Related to "Ormond" Suit Deal
----------------------------------------------------------------
During the six months ended June 30, 2012, Wellpoint, Inc.
recorded selling, general and administrative expense of $90.0
million associated with the settlement of Mary E. Ormond, et al.
v. Anthem, Inc., et al., according to Wellpoint's July 24, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
During the three months ended June 30, 2013 and 2012, the company
recognized income tax expense of $410.4 million and $405.0
million, respectively, which represents effective tax rates of
33.9% and 38.6%, respectively.
The increase in income tax expense was due to increased income
before income tax expense, partially offset by the impact of a
lower effective rate in 2013. The 2013 effective tax rate includes
benefits resulting from the deductibility of certain executive
compensation costs previously disallowed under health care reform
legislation and from continuing decreases in the company's state
apportionment factors calculation, which produces a lower
effective state tax rate. The 2012 effective tax rate reflects the
non-tax deductibility of litigation settlement expenses associated
with the settlement of the Ormond class action lawsuit in June
2012.
During the six months ended June 30, 2013 and 2012, the company
recognized income tax expense of $812.3 and $858.3, respectively,
which represents effective tax rates of 32.5% and 36.4%,
respectively. The decrease in income tax expense was due to a
lower effective rate in 2013, partially offset by increased income
before income tax expense. The 2013 effective tax rate includes
benefits resulting from the deductibility of certain executive
compensation costs previously disallowed under health care reform
legislation and from inclusion of Amerigroup in the company's
state apportionment factors calculation, which produces a lower
effective state tax rate. The 2012 effective tax rate reflects the
non-tax deductibility of litigation settlement expenses associated
with the settlement of the Ormond class action lawsuit in June
2012.
The company is defending a certified class action filed as a
result of the 2001 demutualization of Anthem Insurance Companies,
Inc., or AICI. The lawsuit names AICI as well as Anthem, Inc., or
Anthem, n/k/a WellPoint, Inc., and is captioned Ronald Gold, et
al. v. Anthem, Inc. et al.
AICI's 2001 Plan of Conversion provided for the conversion of AICI
from a mutual insurance company into a stock insurance company
pursuant to Indiana law. Under the Plan, AICI distributed the fair
value of the company at the time of conversion to its Eligible
Statutory Members, or ESMs, in the form of cash or Anthem common
stock in exchange for their membership interests in the mutual
company.
Plaintiffs in Gold allege that AICI distributed value to the wrong
ESMs. Cross motions for summary judgment were granted in part and
denied in part on July 26, 2006 with regard to the issue of
sovereign immunity asserted by co-defendant, the state of
Connecticut, or the State. The court also denied the company's
motion for summary judgment as to plaintiffs' claims on January
10, 2005.
The State appealed the denial of its motion to the Connecticut
Supreme Court. The company filed a cross-appeal on the sovereign
immunity issue. On May 11, 2010, the Court reversed the judgment
of the trial court denying the State's motion to dismiss the
plaintiff's claims under sovereign immunity and dismissed the
company's cross-appeal.
The case was remanded to the trial court for further proceedings.
Plaintiffs' motion for class certification was granted on December
15, 2011. The company and the plaintiffs filed renewed cross-
motions for summary judgment on January 24, 2013. Argument on the
renewed motions was held on April 19, 2013.
The company intends to vigorously defend the Gold lawsuit;
however, its ultimate outcome cannot be presently determined.
In 2012, the company settled a separate lawsuit captioned Mary E.
Ormond, et al. v. Anthem, Inc., et al., also filed as a result of
the 2001 demutualization of AICI. The Ormond case involves a
certified class that consists of all ESMs residing in Ohio,
Indiana, Kentucky or Connecticut who received cash compensation in
connection with the demutualization.
On July 1, 2011, the Court held that the company was entitled to
judgment on all of plaintiffs' claims except those tort claims in
connection with the pricing and sizing of the Anthem, Inc. initial
public offering. The parties have reached an agreement to resolve
the Ormond suit. On June 15, 2012, plaintiffs filed an unopposed
motion for preliminary approval of a $90.0 million cash
settlement, including any amounts to be awarded for attorneys'
fees and expenses and other costs to administer the settlement.
As a result, during the six months ended June 30, 2012, the
company recorded selling, general and administrative expense of
$90.0 million, or $0.27 per diluted share, associated with this
settlement, which was non-deductible for tax purposes. The Court
granted plaintiffs' motion and entered preliminary approval of the
settlement on June 18, 2012. As a result, the trial that had been
set for June 18, 2012 was vacated. The cash settlement was paid on
July 3, 2012 into an escrow account. A final fairness hearing on
the settlement was held on October 25, 2012. On November 16, 2012,
the Court granted plaintiffs' motion and entered an amended final
order approving the settlement.
An award of attorneys' fees was issued on November 20, 2012,
together with a final judgment dismissing all of plaintiffs'
claims. The two appeals of the court's final orders that were
taken by objectors to the United States Court of Appeals for the
Seventh Circuit have been resolved. The appeals involved
challenges to (i) the amount of attorneys' fees awarded to
plaintiffs' counsel out of the settlement fund and (ii) the
provision of the Court's order granting final approval of the
settlement that requires any residual settlement funds remaining
after two rounds of distributions to class members to be paid to
the Eskanazi Health Foundation as a cy pres award.
WELLPOINT INC: Argument for Summary Judgment in "Gold" Suit Done
----------------------------------------------------------------
Argument on the renewed cross-motions for summary judgment in the
suit Ronald Gold, et al. v. Anthem, Inc. et al. was held on April
19, 2013, according to Wellpoint Inc.'s July 24, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
The company is defending a certified class action filed as a
result of the 2001 demutualization of Anthem Insurance Companies,
Inc., or AICI. The lawsuit names AICI as well as Anthem, Inc., or
Anthem, n/k/a WellPoint, Inc., and is captioned Ronald Gold, et
al. v. Anthem, Inc. et al. AICI's 2001 Plan of Conversion, or the
Plan, provided for the conversion of AICI from a mutual insurance
company into a stock insurance company pursuant to Indiana law.
Under the Plan, AICI distributed the fair value of the company at
the time of conversion to its Eligible Statutory Members, or ESMs,
in the form of cash or Anthem common stock in exchange for their
membership interests in the mutual company. Plaintiffs in Gold
allege that AICI distributed value to the wrong ESMs. Cross
motions for summary judgment were granted in part and denied in
part on July 26, 2006 with regard to the issue of sovereign
immunity asserted by co-defendant, the state of Connecticut, or
the State. The court also denied the company's motion for summary
judgment as to plaintiffs' claims on January 10, 2005. The State
appealed the denial of its motion to the Connecticut Supreme
Court. The company filed a cross-appeal on the sovereign immunity
issue.
On May 11, 2010, the Court reversed the judgment of the trial
court denying the State's motion to dismiss the plaintiff's claims
under sovereign immunity and dismissed the company's cross-appeal.
The case was remanded to the trial court for further proceedings.
Plaintiffs' motion for class certification was granted on December
15, 2011. The company and the plaintiffs filed renewed cross-
motions for summary judgment on January 24, 2013. Argument on the
renewed motions was held on April 19, 2013.
The company intends to vigorously defend the Gold lawsuit;
however, its ultimate outcome cannot be presently determined.
WELLPOINT INC: Court Junks Claims in Suit Over OON "UCR" Rates
--------------------------------------------------------------
The United States District Court for the Central District of
California issued an order granting in part and denying in part
Wellpoint, Inc.'s motion to dismiss In re WellPoint, Inc. Out-of-
Network "UCR" Rates Litigation, according to the company's July
24, 2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2013.
The company is currently a defendant in eleven putative class
actions relating to out-of-network, or OON, reimbursement that
were consolidated into a single multi-district lawsuit called In
re WellPoint, Inc. Out-of-Network "UCR" Rates Litigation that is
pending in the United States District Court for the Central
District of California.
The lawsuits were filed in 2009. The plaintiffs include current
and former members on behalf of a putative class of members who
received OON services for which the defendants paid less than
billed charges, the American Medical Association, four state
medical associations, OON physicians, chiropractors, clinical
psychologists, podiatrists, psychotherapists, the American
Podiatric Association, California Chiropractic Association and the
California Psychological Association on behalf of a putative class
of all physicians and all non-physician health care providers, and
an OON surgical center.
In the consolidated complaint, the plaintiffs allege that the
defendants violated the Racketeer Influenced and Corrupt
Organizations Act, or RICO, the Sherman Antitrust Act, ERISA,
federal regulations, and state law by relying on databases
provided by Ingenix in determining OON reimbursement.
A consolidated amended complaint was filed to add allegations in
the lawsuit that OON reimbursement was calculated improperly by
methodologies other than the Ingenix databases. The company filed
a motion to dismiss the amended consolidated complaint, which
motion was granted in part and denied in part. The court gave the
plaintiffs permission to replead many of those claims that were
dismissed.
The plaintiffs then filed a third amended consolidated complaint
repleading some of the claims that had been dismissed without
prejudice and adding additional statements in an attempt to
bolster other claims. The company filed a motion to dismiss most
of the claims in the third amended consolidated complaint, which
was granted in part and denied in part.
The plaintiffs filed a fourth amended consolidated complaint on
November 5, 2012. The company filed a motion to dismiss most of
the claims asserted in the fourth amended consolidated complaint.
The plaintiffs filed a response and the company filed a reply. The
OON surgical center voluntarily dismissed its claims. A hearing on
the company's motion to dismiss was held in June 2013. On July 19,
2013 the court issued an order granting in part and denying in
part the company's motion.
The court held that the state and federal anti-trust claims along
with the RICO claims should be dismissed in their entirety with
prejudice. The court further found that the ERISA claims, to the
extent they involved non-Ingenix methodologies along with those
that involved the company's alleged non-disclosures should be
dismissed with prejudice. The court also dismissed most of the
plaintiffs' state law claims with prejudice. The only claims that
remain after the court's decision are an ERISA benefits claim
relating to claims priced based on Ingenix, a breach of contract
claim on behalf of one subscriber plaintiff, a breach of implied
covenant claim on behalf of one plaintiff, and one subscriber
plaintiff's claim under the California Unfair Competition Law.
Fact discovery is complete.
At the end of 2009, the company filed a motion in the United
States District Court for the Southern District of Florida, or the
Florida Court, to enjoin the claims brought by the medical doctors
and doctors of osteopathy and certain medical associations based
on prior litigation releases, which was granted in 2011, and that
court ordered the plaintiffs to dismiss their claims that are
barred by the release.
The plaintiffs then filed a petition for declaratory judgment
asking the court to find that these claims are not barred by the
releases from the prior litigation. The company filed a motion to
dismiss the declaratory judgment action, which was granted.
The plaintiffs appealed the dismissal of the declaratory judgment
to the United States Court of Appeals for the Eleventh Circuit,
but the dismissal was upheld. The enjoined physicians have not yet
dismissed their claims. The Florida Court found the enjoined
physicians in contempt and sanctioned them on July 25, 2012. The
barred physicians are paying the sanctions and have appealed the
Florida Court's sanctions order to the Eleventh Circuit. Oral
argument on that appeal is expected to take place in October. The
company intends to vigorously defend these suits; however, their
ultimate outcome cannot be presently determined.
WINN-DIXIE: Recalls Ground Beef on E. Coli Contamination Risk
-------------------------------------------------------------
The Associated Press reports that supermarket chains Winn-Dixie
and Bi-Lo are recalling some ground beef because of the risk that
they've been contaminated with E. coli.
The chains announced the recall on Aug. 1 as part of a larger
ground beef recall issued by the National Beef Packing Company.
E. coli can cause diarrhea, dehydration and potentially kidney
failure.
Winn-Dixie is immediately recalling the affected Fresh 93 Percent
Lean Ground Beef from all stores in Alabama, Florida, Georgia,
Louisiana and Mississippi. The product was shipped to stores
around July 18.
Bi-Lo is recalling the same product from its shelves in all stores
in Georgia, North Carolina, South Carolina and Tennessee.
Neither has received reports of any related illnesses.
Consumers can bring the product to the store for a refund.
XL FOODS: Wants CFIA Included in E. Coli Outbreak Class Action
--------------------------------------------------------------
Pete Curtis and Tricia Flatley, writing for 660 News, report that
meat packer XL Foods has filed a court document stating that the
Canadian Food Inspection Agency should be financially responsible
for all or part of any settlement in a C$10-million class-action
lawsuit the company is facing.
The legal action pertains to the E. coli outbreak at the plant in
Brooks last August and September that left 18 people across Canada
ill.
According to the Calgary Herald, the application to include the
CFIA as a liable, third-party will be heard August 22nd in an
Edmonton court room.
In the company's statement of defense, XL Foods claims the federal
agency found operations at the plant in Brooks to be satisfactory
during an audit in August 2012.
The outbreak shutdown the plant for more than a month and cost
farmers and ranchers an estimated C$16 million to C$17 million.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene
A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo,
Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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