/raid1/www/Hosts/bankrupt/CAR_Public/130808.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, August 8, 2013, Vol. 15, No. 155
Headlines
AMERICAN TRAFFIC: Oct. 28 Settlement Claims Filing Deadline Set
APPLE INC: Balks at DOJ's Proposal to Cut Publisher Ties
APPLE INC: Jan. 29 Class Action Settlement Fairness Hearing Set
B&G FOODS: Bids to Dismiss Class Suits vs. Pirate Brands Pending
BOEING COMPANY: Anticipates More Discovery in "Harkness" Suit
BOEING COMPANY: Awaits Ruling to Certify Class of VIP Members
BRISTOL-MYERS: Abilify* Suit Plaintiffs May Replead RICO Claim
BRISTOL-MYERS: Appeal in AWP Class Litigation Remains Pending
CFS BANCORP: Levi & Korsinsky Files Securities Class Action
CHOBANI: Judge Disqualifies Plaintiffs' Expert in Class Action
CHULA VISTA, CA: Settlement Claim Process Extended Until Sept. 29
CORRECTIONS CORP: Judge Wants Documents in Inmate Suit Unsealed
EASTMAN CHEMICAL: Issue on Long-Term Safety of Plastics Remains
FACEBOOK INC: Bid to Dismiss Consolidated Suit to Be Heard Sept.
FACEBOOK INC: Suits Brought by Users and Marketers Remain Pending
FIRST CREDIT: Bid for Reconsideration of Class Cert. Denial Tossed
GANN LAW BOOKS: Court Denies Motion to Dismiss TCPA Class Action
GENERAL MOTORS: Defends Suit by Former Canadian Dealers vs. GMCL
GMAC MORTGAGE: Court Denies Claims Dismissal Bid in FDCPA Suit
GUARANTY FINANCIAL: Stockholders' Suit vs. Temple-Inland Dismissed
HSBC BANK: Court Dismisses "Bromfield" Suit
IGATE CORP: Defends "Jain" Securities Class Suit in California
INGRAM MICRO: Entitled to $29-Mil. Award in LCD-Related Suit
INTERNAP NETWORK: Defends Two Remaining Claims in Securities Suit
LORILLARD INC: Appeal in Indirect Purchaser Suit Remains Pending
LORILLARD INC: Continues to Defend Suit vs. Unit in West Virginia
LORILLARD INC: Continues to Defend Tobacco Antitrust Suit v. Unit
LORILLARD INC: Loews Continues to Defend Product Liability Suits
LORILLARD INC: Suits by Flight Attendants vs. Unit Remain Pending
LOTUS: 80 Cars Affected by 2011 Evora Model Recall in U.S.
LUMBER LIQUIDATORS: "Prusak" FACTA Violation Suit in Discovery
MARIANA RETIREMENT FUND: Initial OK Sought for Johnson Settlement
MCPHERSON, KS: FLSA Suit Plaintiff May File Amended Complaint
MILL-TEL INC: Court Certifies Class in Wage and Hour Suit
NETFLIX INC: Bid to Dismiss Consolidated Securities Suit Pending
OVERSTOCK.COM INC: FB Beacon Parties to Appeal to Supreme Court
OVERSTOCK.COM INC: Bid to Dismiss Consumer Suit Remains Pending
PACIFIC GAS: Class Cert. Denial in Trespassing Suit Upheld
PAPA JOHN'S: Settles Class Action Over Unsolicited Text Messages
QUEST DIAGNOSTICS: Faces New Suit Over Acquisition of Celera
QUEST DIAGNOSTICS: Parties in Suit v. Celera Still in Discovery
QUEST DIAGNOSTICS: Settled New "Mt. Lookout" Suit in Illinois
QUEST DIAGNOSTICS: "Seibert" Plaintiff Seeks Class Certification
QUEST DIAGNOSTICS: Suit by Female Sales Representatives Dismissed
QUEST DIAGNOSTICS: Suits Over Billing Practices Remain Pending
RANGE RESOURCES: Puts $87.5MM in Escrow for Royalty Owners
STATE FARM: "Pellegrino" Insurance Coverage Suit Dismissed
TOKYO ELECTRIC: US-Style Class Action Unlikely for Fukushima Suits
TRAVELZOO INC: Appeal From Dismissal of Securities Suit Pending
WARNER CHILCOTT: Faces ACTONEL Product Liability Suits in Canada
WARNER CHILCOTT: Files Motion to Consolidate LOESTRIN 24 FE Suits
WARNER CHILCOTT: No Certification Yet in DORYX Antitrust Suit
WHOLE FOODS: Recalls Gorgonzola Verdi Dolce Italian Cheese
ZIONSOLUTIONS LLC: Court Okays "Pennington Suit" Dismissal Bid
* FDA Warns About Unapproved "Natural" Sex Supplements
* Food Experts Say Health Risks Higher From Packaged Greens
* Suit Wants to Hold Lead Paint Makers Liable for Poisoning
*********
AMERICAN TRAFFIC: Oct. 28 Settlement Claims Filing Deadline Set
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Class Action Settlement News reports that The Telliho v. East
Windsor Township and American Traffic Solutions, Inc. Lawsuit
claims that the New Jersey Red Light Camera Statute was violated
by the defendants (American Traffic Solutions, Inc.) in the case.
What is this NJ Statue you might ask? The New Jersey Red Light
Camera Statute states that authorized certain areas in the state
of New Jersey to use a red light camera monitoring systems and
issue Notices of Violation to vehicles who ran a red light. These
cameras were not manned and the person who the auto was registered
to would receive a ticket within a few weeks of the violation.
The case is under the jurisdiction of the United States District
Court, District of New Jersey and includes anyone who paid a fee
or fine in relation to one of these Red Light violations on or
before August 1, 2012. Class members under the settlement terms
are entitled to a payment of $8.50. The total amount of the
settlement is subject to change depending on how many people file
a claim. You may file more than one claim if you received more
than one violations. A separate claim for is required for each
Red Light Violation. All claims forms are due not later than
October 28, 2013. If you do not file a claim you will need
receive any type of settlement.
You can file a claim online with the Claimant ID Number. If you
have any questions about the case please dial toll-free 1-877-497-
5923. Please do not contact the State of New Jersey or American
Traffic Solutions, Inc. with questions.
APPLE INC: Balks at DOJ's Proposal to Cut Publisher Ties
--------------------------------------------------------
Agence France-Presse reports that the US Department of Justice on
Aug. 2 launched a bid to more tightly regulate Apple's wildly
lucrative iTunes storefront, after the tech giant lost a price-
fixing case.
DOJ officials urged a court to order Apple to cut ties with
publishers with which it was found guilty of an e-book price
fixing scheme.
And the order went further, prohibiting the iPhone maker from
seeking to drive up prices by signing "agreements with suppliers
of e-books, music, movies, television shows or other content."
Apple condemned the DOJ proposal in a brief filed with the court
on Aug. 2.
"Plaintiffs' proposed injunction is a draconian and punitive
intrusion into Apple's business, wildly out of proportion to any
adjudicated wrongdoing or potential harm," Apple attorneys argued
in the legal brief.
The unprecedented injunction being sought by the DOJ would empower
the government to regulate Apple's business and set up a
compliance regime the company lambasted as "vague and intrusive."
The DOJ's proposal is essentially telling Apple "to get out of the
e-book business," said Gartner analyst Van Baker.
"It is basically putting a stake through a portion of Apple's
business, and I confess to being surprised by that," he continued.
"It strikes me as a pretty heavy-handed solution to the issue."
Last month, a US district court in New York found Apple guilty of
conspiring with publishers to fix book prices for readers using
its iPad and iPhone devices.
On Aug. 2, Justice Department officials submitted to the court a
list of "remedies" that included making Apple cut existing ties to
the publishers and make it easier for its rivals to sell books on
its platforms.
The proposed settlement would see Apple end its current agreements
with five US-based publishers: Hachette Book Group, HarperCollins,
Macmillan, Penguin and Simon & Schuster.
The tech firm would promise not to enter new contracts with the
five to limit price competition in the next five years, and would
allow other e-book retailers to link to their products from iPad
and iPhone apps for two years.
Legal settlements signed by publishers already address antitrust
concerns and the DOJ remedies are unwarranted, Apple argued.
The fiercely private and independent-minded California company
would be ordered to pay for an external monitor who would peer
into its affairs to confirm compliance with anti-trust laws.
"Apple is like the person who always looks put together out in
public and you don't get to see what it takes to do that under the
covers," said Forrester analyst Frank Gillett.
"The idea of a monitor is tough for them, but they are going to
have to find some way to deal with it."
The DOJ lodged a civil antitrust lawsuit against Apple and the
publishers in April last year.
It has since reached settlements with four of the publishers and
has an agreement with Macmillan that is yet to be approved by the
court.
The DOJ's proposed Apple's settlement still has to be approved by
a federal judge.
"The court found that Apple's illegal conduct deprived consumers
of the benefits of e-book price competition and forced them to pay
substantially higher prices," said antitrust division assistant
attorney general Bill Baer.
"Under the department's proposed order, Apple's illegal conduct
will cease and Apple and its senior executives will be prevented
from conspiring to thwart competition in the future."
Under the existing settlements, the publishers agreed to end any
agreements they have with retailers like Apple to prevent them
from discounting titles sold through their platforms.
Through its devices and software, Apple allows readers to buy
electronic versions of books online and download them to personal
digital libraries.
In this it competes with other retailers such as Amazon and Barnes
& Noble, which sell e-books through online "apps" on mobile
devices, using operating systems such as Microsoft's Windows or
Google's Android.
The settlement would oblige Apple to allow retailers to "provide
links from their e-book apps to their e-bookstores, allowing
customers who purchase and read e-books on their iPads and iPhones
easily to compare Apple's prices with those of its competitors."
Apple is proud of its well-managed "eco-system" in which it
controls everything from the design of its beloved devices to the
operating systems and even which apps are allowed on gadgets.
Apple chief Tim Cook has repeatedly said that the company is
devoted to giving people the best experiences on top-quality
creations.
"For Apple, this will feel like losing control of the customer
experience," said Mr. Gillett.
"Apple is so used to being the underdog that it is unfamiliar to
them that others would see their focus on customer experience and
great products not as just an unfriendly, closed system but as a
monopoly."
Forcing Apple to cut ties with publishers could wind up handing
the e-book market to Kindle-maker Amazon.com, according to
analysts.
APPLE INC: Jan. 29 Class Action Settlement Fairness Hearing Set
---------------------------------------------------------------
9to5Mac reports that while the settlement was announced back in
May, Apple customers are just now receiving email notifications
about the upcoming cash payout from the class action settlement
regarding Apple denying warranty covered for an iOS device because
of supposed liquid damage.
More details can be found on the settlement's website at
https://eclaim.kccllc.net/CAClaimForms/AIW/home.aspx
Claim #: 22276002301
You May Be Entitled to a Cash Payment from a Class Action
Settlement Fund
if Apple Denied Warranty Coverage for Your iPhone or iPod
touch
Because Apple Stated Your Device Had Been Damaged by Liquid
The United States District Court, Northern District of
California, authorized this notice.
The Court will have a hearing to consider whether to approve
the settlement, so that benefits may be paid.
This is not a solicitation from an attorney.
This settlement affects you if Apple denied warranty coverage
because Apple stated that your iPhone or iPod touch had been
damaged by liquid. The settlement will create a $53 million fund
that will be used to pay eligible Settlement Class Members and to
pay incentive awards to the Class Representatives and attorneys'
fees and costs to Class Counsel, as approved by the Court (the
"Settlement Fund"). If you qualify, you may send in a claim form
to ask for payment, or you can exclude yourself from the
settlement, or object.
To receive a payment from the Settlement Fund, you must submit
a claim form to the settlement administrator on or before
October 21, 2013. You may obtain a claim form by visiting
http://www.AppleWarrantySettlement.com/Landing.aspx
If you don't want a payment and don't want to be legally bound
by the settlement, you must exclude yourself by December 4, 2013.
If you stay in the class, you may object to the settlement by
December 4, 2013. Please see the Detailed Notice described below
for more information about excluding yourself or objecting.
The remainder of this email message contains a summary of
important information about the terms of the settlement and about
your legal rights. Please read it carefully.
You may visit http://www.AppleWarrantySettlement.comor call
1-855-282-8115 to obtain additional important information,
including a Detailed Notice that describes the settlement more
fully and provides instructions on how to exclude yourself or
object.
Summary of the Class Action Settlement and Your Legal Rights
What's This About?
The lawsuit claimed that Apple wrongfully denied warranty
coverage by stating that iPhones and iPod touches had been damaged
by liquid because a Liquid Contact Indicator ("LCI") (also known
as a Liquid Submersion Indicator), which is visible through the
headphone jack or through the dock connector port, had turned pink
or red. Apple denies all allegations and is entering into this
settlement to avoid burdensome and costly litigation. The
settlement is not an admission of wrongdoing by Apple.
Who's Affected?
The Settlement Class is composed of people who meet the
following criteria: (1) U.S. residents who are or were the owners
of an iPhone or iPod touch; (2) which was submitted to Apple for
warranty coverage on or before December 31, 2009, for an iPhone,
or on or before June 30, 2010, for an iPod touch; (3) while that
iPhone or iPod touch was covered by Apple's one-year limited
warranty coverage or, if applicable, the AppleCare Protection
Plan; and (4) Apple denied warranty coverage because Apple stated
that the iPhone or iPod touch had been damaged by liquid.
What Can You Get from the Settlement?
Apple has agreed to create a $53 million Settlement Fund. The
fund will be used to pay eligible Settlement Class Members, and
also to pay incentive awards to the Class Representatives of up to
$1,000 each and attorneys' fees and costs to Class Counsel, not to
exceed 30% ($15.9 million) of the $53 million Settlement Fund, for
their services as approved by the Court. Apple has reserved the
right to object to the amount of attorneys' fees, costs and
incentive awards. Any undistributed funds will be disbursed to one
or more non-profit entities approved by the Court. Apple has also
agreed to separately pay for the cost of notice and settlement
administration.
The amount you receive from the settlement will depend on a
number of factors, including the type of device you owned and the
number of Class Members eligible to receive payment from the
Settlement Fund.
Your share of the Settlement Fund will be determined by the
type (i.e., iPhone, iPhone 3G, iPhone 3GS, iPod touch) and
configuration (i.e., 4, 8, 16, 32, or 64 gigabytes) of the device
for which you sought warranty coverage from Apple. The amounts
are listed in the chart below. The amounts represent the average
amounts paid to Apple for replacement of each device type and
configuration. The exact amount of the share you receive may be
higher or lower than the amounts listed below, depending on the
total number of Settlement Class Members eligible for a payment
and the type and configuration of their devices. No eligible
Settlement Class Member will receive more than 200% of the amount
listed below for their device type and configuration.
There will be only one cash payment per device (as identified
by its unique serial number).
How Do You Get a Payment?
If you qualify, you must submit a claim form to the settlement
administrator on or before October 21, 2013 to receive a payment
from the Settlement Fund. You may obtain a claim form by visiting
http://www.AppleWarrantySettlement.com/Landing.aspx
After your claim form is received, it will be reviewed by the
settlement administrator. If your claim is deemed valid, a check
from the Settlement Fund will be mailed to you if the Court
approves the settlement and the time to appeal has passed. We do
not know when that will be. Please be patient.
If your mailing address changes after you submit your claim
but before you receive your check, you must notify the settlement
administrator within 45 days after the change. Please update your
address by visiting http://www.AppleWarrantySettlement.com
A Detailed Notice contains further information about the
settlement. Just call the number or visit the website below to
get one.
What Are Your Options?
If you wish to receive a payment, you must submit a valid
claim by October 21, 2013.
If you don't want a payment and don't want to be legally bound
by the settlement, you must exclude yourself by December 4, 2013,
or you won't be able to sue, or continue to sue, Apple about the
legal claims in this case. If you exclude yourself, you can't get
a payment from this settlement. To exclude yourself, mail a
letter stating that you want to be excluded to the following
address: In re Apple iPhone/iPod Warranty Litigation Exclusions at
Apple Warranty Settlement Administrator, P.O. Box 43184,
Providence, RI 02940-3184. You must include your name, address,
telephone number, signature, the type of device for which you were
denied warranty coverage (i.e., iPhone or iPod touch), and the
approximate date when and the Apple store location where you were
denied coverage.
If you stay in the class, you may object to the settlement by
December 4, 2013. To object, mail a letter addressed to In re
Apple iPhone/iPod Warranty Litigation, Case No. 10-01610, and send
to both of the addresses below. You must include your name,
address, telephone number, signature, the type of device for which
you were denied warranty coverage (i.e., iPhone or iPod touch),
the approximate date when and the Apple store location where you
were denied coverage, the serial number of the device (or the
Apple ID for the iTunes account you used with the device), and the
reasons you object to the settlement.
Clerk of the Court
United States District Court for the
Northern District of California,
San Francisco Division
450 Golden Gate Avenue
San Francisco, CA 94102
Settlement Administrator
Apple Warranty Settlement Administrator
P.O. Box 43184
Providence, RI 02940-3184
The Court will hold a hearing in this case (In re Apple
iPhone/iPod Warranty Litigation, Case No. 10-01610 (N.D. Cal.)) on
January 29, 2014, 1:30 p.m. to consider whether to approve the
settlement and whether to approve the incentive awards and
attorneys' fees and costs sought. The fairness hearing and other
dates may change by order of the Court without further notice. Any
changes will be posted to the Settlement Website. You may ask to
speak at the hearing, but you don't have to. For more
information, including a Detailed Notice, go to
http://www.AppleWarrantySettlement.comor call 1-855-282-8115, or
write to Apple Warranty Settlement Administrator, P.O. Box 43184,
Providence, RI 02940-3184.
B&G FOODS: Bids to Dismiss Class Suits vs. Pirate Brands Pending
----------------------------------------------------------------
Motions to dismiss the class action lawsuits against a subsidiary
of B&G Foods, Inc., remain pending, according to the Company's
July 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 29, 2013.
On July 8, 2013, the Company completed its acquisition of Robert's
American Gourmet Food, LLC, doing business as Pirate Brands (which
upon closing the Company renamed Pirate Brands, LLC) and VMG
Pirate's Booty Blocker, Inc. (which the Company subsequently
dissolved) from affiliates of VMG Partners and Driven Capital
Management, and certain other entities and individuals for a
purchase price of $195.0 million in cash, subject to adjustments
based upon indebtedness, working capital and transaction expenses
of the business at closing.
Pirate Brands has been named as a defendant in four duplicative
putative class actions, two of which were filed prior to the
Company's ownership of Pirate Brands. The cases allege that
Pirate Brands' products are improperly labeled as "natural"
because they contain genetically modified and processed
ingredients. The first case was filed in December 2012 in New
York. A duplicative case was then filed in February 2013 in
California, which has been transferred to New York. Identical
actions were recently filed in July 2013 in Florida and
Washington. Pirate Brands will seek to consolidate the four cases
into a single proceeding in New York where these claims were first
filed. No discovery has commenced in any of the cases, and
motions to dismiss all the claims are pending in the New York and
California actions.
Based upon information currently available, the Company does not
believe the ultimate resolution of these actions will have a
material adverse effect on B&G Foods' consolidated financial
position, results of operations or liquidity.
Headquartered in Parsippany, New Jersey, B&G Foods, Inc.
manufactures, sells and distributes a diverse portfolio of
branded, high quality, shelf-stable foods and household products,
many of which have leading regional or national market shares.
The Company complements its branded product retail sales with
institutional and food service sales and limited private label
sales.
BOEING COMPANY: Anticipates More Discovery in "Harkness" Suit
-------------------------------------------------------------
The parties in Harkness et al. v. The Boeing Company et al. are
preparing to conduct additional discovery in anticipation of
further court proceedings, 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.
In connection with the 2005 sale of the company's former Wichita
facility to Spirit AeroSystems, Inc. (Spirit), certain individuals
not hired by Spirit alleged that Spirit's hiring decisions
following the sale were tainted by age discrimination, violated
ERISA, violated the company's collective bargaining agreements,
and constituted retaliation.
The case was brought in 2006 as a class action on behalf of
individuals not hired by Spirit. In 2012, the Tenth Circuit Court
of Appeals affirmed the district court's 2010 summary judgment in
favor of Boeing and Spirit on all class action claims, but the
parties were not precluded from making claims on an individual
basis. As of June 30, 2013, eighty-nine individuals have asserted
individual claims related to this matter. Spirit has agreed to
indemnify Boeing for any and all losses.
Also related to the 2005 sale of the former Wichita facility, on
February 16, 2007, an action entitled Harkness et al. v. The
Boeing Company et al. was filed in the U.S. District Court for the
District of Kansas, alleging collective bargaining agreement
breaches and ERISA violations in connection with alleged failures
to provide benefits to certain former employees of the Wichita
facility.
On December 11, 2012 the court denied plaintiffs' motion for
summary judgment and granted Boeing's motion for summary judgment
on plaintiffs' claim that amendment of The Boeing Company Employee
Retirement Plan violated the IAM collective bargaining agreement,
as well as individual ERISA Section 510 claims for interference
with benefits. The court denied Boeing's motion for all other
claims. The parties are preparing to conduct additional discovery
in anticipation of further court proceedings, which have not yet
been scheduled.
The company believes that Spirit is obligated to indemnify Boeing
for any and all losses in this matter, although to date Spirit has
acknowledged a limited indemnification obligation. The company
currently estimates that the putative class includes 2,000 former
Wichita employees. The company cannot reasonably estimate the
range of loss, if any, that may result from both these matters
given the current procedural status of the litigation.
BOEING COMPANY: Awaits Ruling to Certify Class of VIP Members
-------------------------------------------------------------
Plaintiffs in the suit filed by participants and beneficiaries in
The Boeing Company Voluntary Investment Plan (the VIP) are still
awaiting a ruling regarding a motion to certify a class,
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.
On October 13, 2006, the company was named as a defendant in a
lawsuit filed in the U.S. District Court for the Southern District
of Illinois. Plaintiffs, seeking to represent a class of similarly
situated participants and beneficiaries in The Boeing Company
Voluntary Investment Plan (the VIP), alleged that fees and
expenses incurred by the VIP were and are unreasonable and
excessive, not incurred solely for the benefit of the VIP and its
participants, and were undisclosed to participants.
The plaintiffs further alleged that defendants breached their
fiduciary duties in violation of Section 502(a)(2) of ERISA, and
sought injunctive and equitable relief pursuant to Section
502(a)(3) of ERISA. During the first quarter of 2010, the Seventh
Circuit Court of Appeals granted a stay of trial proceedings in
the district court pending resolution of an appeal made by Boeing
in 2008 to the case's class certification order.
On January 21, 2011, the Seventh Circuit reversed the district
court's class certification order and decertified the class. The
Seventh Circuit remanded the case to the district court for
further proceedings. On March 2, 2011, plaintiffs filed an amended
motion for class certification and a supplemental motion on August
7, 2011. Boeing's opposition to class certification was filed on
September 6, 2011.
Plaintiffs' reply brief in support of class certification was
filed on September 27, 2011. The court has stated its intent to
issue rulings on the amended motion for class certification and
the alternative motion to proceed as a direct action for breach of
fiduciary duty and then stay the case until it is determined if an
appeal of the class certification order is filed. As a result, on
September 19, 2012 the district court issued an order denying
Boeing's motions for summary judgment as premature pending class
determination. The company cannot reasonably estimate the range of
loss, if any, that may result from this matter given the current
procedural status of the litigation.
BRISTOL-MYERS: Abilify* Suit Plaintiffs May Replead RICO Claim
--------------------------------------------------------------
The plaintiffs in the Abilify* Co-Pay Assistance Litigation are
allowed to re-plead their claim under the Racketeer Influenced and
Corrupt Organizations, according to Bristol-Myers Squibb Company's
July 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
In March 2012, the Company and its partner Otsuka Pharmaceutical
Co., Ltd. were named as co-defendants in a putative class action
lawsuit filed by union health and welfare funds in the U.S.
District Court for the Southern District of New York (SDNY). The
Plaintiffs are challenging the legality of the Abilify* co-pay
assistance program under the Federal Antitrust and the Racketeer
Influenced and Corrupt Organizations (RICO) laws, and seeking
damages. The Company and Otsuka filed a motion to dismiss the
complaint. In June 2013, the Court granted the Company's motion,
dismissing all claims but allowing plaintiffs to re-plead the RICO
claim.
The Company says it is not possible at this time to reasonably
assess the outcome of this litigation or its potential impact on
the Company.
Bristol-Myers Squibb Company is a global biopharmaceutical company
whose mission is to discover, develop and deliver innovative
medicines that help patients prevail over serious diseases. The
Company licenses, manufactures, markets, distributes and sells
pharmaceutical products on a global basis.
BRISTOL-MYERS: Appeal in AWP Class Litigation Remains Pending
-------------------------------------------------------------
Bristol-Myers Squibb Company's appeal in the average wholesale
price litigation remains pending, according to the Company's
July 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
The Company, together with a number of other pharmaceutical
manufacturers, has been a defendant in a number of private class
actions as well as lawsuits brought by the attorneys general of
various states. In these actions, the plaintiffs allege that
defendants caused the Average Wholesale Prices (AWPs) of their
products to be inflated, thereby, injuring government programs,
entities and persons who reimbursed prescription drugs based on
AWPs. The Company remains a defendant in two state attorneys
general lawsuits pending in state courts in Pennsylvania and
Wisconsin. Beginning in August 2010, the Company was the
defendant in a trial in the Commonwealth Court of Pennsylvania
(Commonwealth Court), brought by the Commonwealth of Pennsylvania.
In September 2010, the jury issued a verdict for the Company,
finding that the Company was not liable for fraudulent or
negligent misrepresentation; however, the Commonwealth Court judge
issued a decision on a Pennsylvania consumer protection claim that
did not go to the jury, finding the Company liable for $28 million
and enjoining the Company from contributing to the provision of
inflated AWPs. The Company has appealed the decision to the
Pennsylvania Supreme Court and oral argument took place in May
2013.
Bristol-Myers Squibb Company is a global biopharmaceutical company
whose mission is to discover, develop and deliver innovative
medicines that help patients prevail over serious diseases. The
Company licenses, manufactures, markets, distributes and sells
pharmaceutical products on a global basis.
CFS BANCORP: Levi & Korsinsky Files Securities Class Action
-----------------------------------------------------------
Levi & Korsinsky LLP has filed a class action lawsuit in the
United States District Court for the Northern District of Indiana,
Hammond Division (civil action no. 2:13-cv-00261) on behalf of all
current stockholders of CFS Bancorp, Inc. in connection with the
proposed sale of the company to First Merchants Corporation. The
complaint alleges, among other things, that CFS Bancorp and the
members of its board of directors violated Sections 14(a) and
20(a) of the Securities Exchange Act of 1934 and Rule 14a-9, as
promulgated by the U.S. Securities and Exchange Commission. More
specifically, the complaint alleges that the defendants have filed
proxy solicitation materials with the SEC that misrepresent or
omit material information regarding First Merchants Corporation's
proposed acquisition of CFS Bancorp.
If you wish to serve as lead plaintiff, you must move the Court no
later than 60 days from August 5, 2013. If you wish to discuss
this action or have any questions concerning this notice or your
rights or interests, please contact plaintiffs' counsel,
Joseph Levi, at (212) 363-7500 or via e-mail at jlevi@zlk.com or
visit http://zlk.9nl.com/cfs-bancorp/
Any member of the putative class may move the Court to serve as
lead plaintiff through counsel of their choice or may choose to do
nothing and remain an absent class member.
NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A
CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU
RETAIN ONE. AT THIS TIME YOU MAY DO NOTHING AND REMAIN AN ABSENT
CLASS MEMBER. YOU MAY ALSO RETAIN COUNSEL OF YOUR CHOICE.
Levi & Korsinsky is a national firm with offices in New York, New
Jersey, and Washington, D.C. The firm prosecutes securities
litigation involving financial fraud, representing investors
throughout the nation in securities and shareholder lawsuits.
CONTACT: Levi & Korsinsky LLP
Joseph E. Levi, Esq.
30 Broad Street, 24th Floor
New York, NY 10004
Telephone: (212) 363-7500
Toll Free: (877) 363-5972
CHOBANI: Judge Disqualifies Plaintiffs' Expert in Class Action
--------------------------------------------------------------
The Legal Pulse provides an update on the latest development in
Kane v. Chobani, one of more interesting cases among the hundreds
of "mislabeling" class actions that consumers have filed against
food and beverage companies. In reporting on Judge Koh's decision
to vacate her early July ruling in the case, The Legal Pulse noted
that Chobani's motion to bar one of Kane's experts from
involvement in the suit, and to disqualify her lawyers, had been
argued before Judge Koh.
Late last Friday, August 2, Judge Koh ruled on that motion. She
barred expert witness Betty Campbell and her employer, EAS
Consulting Group, from discussing issues in the Kane action with
Kane's attorneys. That order essentially prohibits EAS and
Campbell from working on the 30+ other, similar class actions that
Kane's lawyers have filed in the Northern District of California
federal court without first obtaining a waiver from Chobani.
Judge Koh declined Chobani's request that Kane's lawyers be
disqualified from the case. She reasoned that based on the
evidence available to her, neither Campbell nor anyone else from
EAS had shared confidential information which Campbell had
obtained from conversations with Chobani's attorneys with Kane's
lawyers.
That ruling did not, however, relieve Kane's lawyers from a
judicial scolding.
"Plaintiffs' Counsel were on notice that EAS had a conflict with
Chobani that would prevent EAS from appearing adverse to Chobani,"
Judge Koh wrote. Kane's lawyers could have made a simple phone
call to Chobani's counsel to confirm the conflict. Instead, the
lawyers relied upon representations by EAS's CEO that no conflict
existed. Judge Koh wrote that "counsel cannot rely on non-
attorney experts with pecuniary incentives to discharge an
attorney's ethical duties," and that, "The Court is deeply
disappointed that Plaintiffs' Counsel abdicated their ethical
responsibilities to [EAS's CEO]."
CHULA VISTA, CA: Settlement Claim Process Extended Until Sept. 29
-----------------------------------------------------------------
Allison Sampite-Montecalvo, writing for The San Diego Union-
Tribune, reports that the deadline for Chula Vista residents to
file claims against the city for refunds on their cellphone bills
has been extended.
The original deadline to submit bills and claim a portion of the
$8 million settlement of a class-action lawsuit was July 31. The
settlement was reached in April and received preliminary approval
from a San Diego Superior Court judge.
However, some claims were determined to be incomplete and people
who submitted them have until Sept. 29 to refile.
In addition, some people may have missed earlier notifications of
the settlement. A deadline was extended until Sept. 21 to allow
certain Bonita residents within Chula Vista city limits to file
claims. Notice of the settlement and claim form documents were to
be mailed on Aug 7.
The lawsuit was filed in June 2011 by attorneys for CaseyGerry and
Capretz & Associates, who said cellphone users never should have
had to pay the money. The lawsuit challenged a 5% fee the city
collected from phone customers under a 1970 utility users tax.
The suit said the tax was not meant to apply to wireless service.
Three meetings in three months were held to explain how eligible
taxpayers, who paid the city's utility users tax on their wireless
phone bills between April 2010 and April 2013, could submit claims
ranging from $35 to hundreds of dollars.
"A significant number of residents will be receiving $150 and
more," CaseyGerry attorney Jason Evans said. "I know that one
claim from a small business will get about $750."
The $8 million will be used to pay refunds, litigation expenses
and attorneys' fees. Anything not claimed by residents will go
back to the city for public services.
Mr. Evans said it's too early to tell when eligible residents
would receive their checks.
CORRECTIONS CORP: Judge Wants Documents in Inmate Suit Unsealed
---------------------------------------------------------------
Rebecca Boone, writing for The Associated Press, reports that a
federal judge has ordered that several documents be unsealed in a
lawsuit between Idaho inmates and Corrections Corporation of
America just days before a hearing is set over whether the private
prison company should be held in contempt of court.
Inmates at the Idaho Correctional Center, represented by the ACLU
of Idaho, brought the lawsuit in 2010, contending the CCA-run
prison was so violent that prisoners called it "Gladiator School."
CCA denied the allegations, but the two sides reached a deal
requiring widespread staffing and safety changes. The settlement,
which was made public, requires that parties try to resolve any
disputes together before going back to court.
Late last year, the ACLU alleged the Nashville, Tenn.-based CCA
was violating the terms of the agreement, and the two sides went
into private mediation, during which virtually no records were
included in the court file. Since the start of 2013, 19 documents
-- including four separate judges' orders -- have been filed under
seal in the case. There were no open motions, orders or other
documents detailing the courts' justification for keeping the
filings secret.
An order directing the inmates to be transported to the courthouse
for an Aug. 7 hearing recently was included in the publicly
available files, but at the time it was unclear if that hearing
itself would be open to the public. According to the order, the
hearing is being held so the judge can consider whether CCA
breached the settlement or committed contempt of court for
violating the agreement.
The newest order from U.S. District Judge David Carter, made
public late last week, makes it clear that the hearing will be
open and that only limited redactions will be allowed before the
other documents in the case are unsealed.
Judge Carter rejected arguments from CCA's attorneys that the ACLU
was seeking to make the documents open only to promote a public
scandal. The judge noted that CCA has acknowledged giving
inaccurate staffing records to the Idaho Department of Correction
and that it failed to meet the minimum staffing terms of its $29
million contract with the state of Idaho for several months in
2012.
CCA maintains the understaffing caused no safety issues at the
prison.
"It is hardly private spite, promotion of public scandal, or
libelous, to contend that CCA is wrong, and to submit sworn
affidavits from past and current employees in support of that
argument," Judge Carter wrote. "Idaho taxpayers pay CCA to
operate one of their prisons. With public money comes a public
concern about how that money is spent. Such a public interest
cannot be swatted away by calling it a desire for 'public
spectacle' or a form of 'private spite' or any of the other labels
that CCA offers."
CCA has been the subject of multiple lawsuits from Idaho inmates,
including one filed last year that also alleges understaffing at
the Idaho Correctional Center. In that case, a group of inmates
claim that because of the understaffing, prison gangs have gained
more control inside prison walls, and that both issues led to an
incident where they were jumped, beaten and badly injured by a
group of gang members.
In that case, CCA's attorneys have asked for a broad protective
order that would give the company the ability to keep a wide range
of documents under seal, for security, privacy or business
reasons. A coalition of 17 news organizations, including The
Associated Press, have filed a motion asking to intervene in that
case for the limited purpose of trying to keep the court documents
open to the public. U.S. District Judge Edward Lodge has yet to
rule on the motion.
EASTMAN CHEMICAL: Issue on Long-Term Safety of Plastics Remains
---------------------------------------------------------------
Ann Chen, writing for The Austin Chronicle, reports that on
July 24, a federal jury ruled in favor of Eastman Chemical Co. in
its lawsuit against two affiliated local firms, CertiChem Inc. and
PlastiPure Inc. Eastman had claimed that the two Austin-based
companies, hoping to market their own plastic products, had
published false or misleading information about the potential
health effects of Eastman products. However, while the jury ruled
favorably on the specific Eastman claims, the overall, long-term
safety of mass-produced, widely used consumer plastics remains an
open question.
We live in a world of plastic: plastic utensils, plastic cups,
plastic toys for children. But few of us know what's in the
products we use -- or what their potential health effects might
be. The chemical safety of plastics was a central issue in the
lawsuit filed by Eastman, a $9 billion chemical engineering
company, against the two companies founded and co-owned by George
Bittner, a University of Texas professor in neurobiology.
Eastman produces Tritan, a hard, clear plastic that's marketed as
BPA- and EA-free. The chemical BPA (bisphenol A) was used in many
plastic products until just a few years ago, when studies emerged
warning of adverse health effects from the chemical leaching into
food -- potentially including obesity, cancer, reproductive
disfunction, and changes in infant behavior. Pressure from
consumers led to major retailers dropping products known to
contain BPA.
A related, more intractable issue has received less publicity:
"estrogenic activity," or EA. EA occurs when synthetic chemicals
act like estrogen in the body, interacting with estrogen receptors
and disrupting the endocrine system, which regulates hormones. In
fact, the adverse effects of BPA are the result of EA, and there
are potentially hundreds of chemicals like BPA which might
negatively affect the endocrine system, especially in infants and
fetuses. There is less public awareness or regulation of EA, and
thousands of manufactured chemicals have entered the market
without ever being tested for their effects on human health.
Eastman recognizes that EA is harmful. It's a cornerstone of
their marketing for Tritan, which is used to make everything from
food containers to baby bottles. However, CertiChem and
PlastiPure have published research suggesting that Tritan (among
other chemicals) actually does induce EA. If this is true, then
companies have been selling -- and consumers using -- potentially
dangerous products under the assumption that they're safe.
CertiChem and PlastiPure collaborate to test for EA and certify
products as "PlastiPure-Safe certified EA-Free materials."
PlastiPure further claims that it is the "first and only company
developing plastic materials, processes, and products that are
safer both for humans and the environment." Eastman asked the
court for an injunction against any statements about Tritan
exhibiting EA -- including a brochure PlastiPure circulated at two
product expos. At trial, both Eastman and CC/PP provided a
plethora of scientists and experts to defend their own and attack
each other's testing methods. Following the verdict, the only
thing that's clear is that EA -- what it is, what causes it, and
how it should be regulated -- remains a contested question.
For one thing, there are very few standards for testing products
for EA. The EPA recommends a "battery" of tests, but it's still
debated which are the most effective and just how many are needed
to confirm a product's safety. CertiChem and PlastiPure relied
primaily on a test that they say is the most sensitive for
detecting EA, the MCF-7. It's an "in vitro assay," meaning it's
done with a cell line rather than in live animals (in vivo).
Though many scientists accept that EA can be established by an in
vitro test, a positive result isn't sufficient to prove a product
will be harmful to humans.
Eastman made much of the "common use stressors" with which
PlastiPure treated its test samples before handing them to
CertiChem, including putting the samples in an autoclave,
microwaving, and 24-hour exposure to UV. "They tortured the
plastic," says Eastman stressing expert Tom Pecorini.
Yet it appears Eastman did its own test manipulation, most
egregiously in an in vivo test in which rats were given doses of
Tritan monomers (the main ingredients of the plastic resin) at a
level far below the EPA-recommended testing dose. Moreover, a
paper published in Food and Chemical Toxicology that evaluated
Tritan stated that the authors had no conflict of interest when,
in fact, the paper and testing had been funded by Eastman.
Ultimately, the jury ruled in Eastman's favor on counts of false
advertising, unfair competition, and conspiracy. Mr. Bittner
commented on the trial's outcome: "We were surprised and
disappointed by the verdict." CertiChem and PlastiPure, which are
funded largely by government grants, could be significantly
affected by the outcome of the lawsuit, and had not yet announced
whether they would appeal.
The jury has ruled on CertiChem and PlastiPure, but the available
research on non-BPA plastics remains incomplete and troubling.
Eastman has tested only three chemicals that are components of
Tritan, according to CertChem and PlastiPure lawyers, while others
that may be estrogenic remain untested. And because of the low
dosing levels, the results of Eastman's rat testing appear
inconclusive. Finally, there have been other tests on unstressed
Tritan that appear to confirm CertiChem and PlastiPure's results.
The questions remain: What's in our plastics, and what could it do
to us? Given the products' ubiquity, consumers still need to know.
FACEBOOK INC: Bid to Dismiss Consolidated Suit to Be Heard Sept.
----------------------------------------------------------------
The U.S. District Court for the Southern District of New York will
hear arguments on Facebook, Inc.'s motion to dismiss a
consolidated securities lawsuit in September 2013, according to
the Company's July 25, 2013, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
Beginning on May 22, 2012, multiple putative class actions,
derivative actions, and individual actions were filed in state and
federal courts in the United States and in other jurisdictions
against the Company, its directors, and/or certain of its officers
alleging violation of securities laws or breach of fiduciary
duties in connection with the Company's initial public offering
and seeking unspecified damages. The Company believes these
lawsuits are without merit, and it intends to continue to
vigorously defend them. On October 4, 2012, on the Company's
motion, the vast majority of the cases in the United States, along
with multiple cases filed against The NASDAQ OMX Group, Inc. and
The Nasdaq Stock Market LLC (collectively referred to herein as
NASDAQ) alleging technical and other trading-related errors by
NASDAQ in connection with the Company's IPO, were ordered
centralized for coordinated or consolidated pre-trial proceedings
in the United States District Court for the Southern District of
New York. On February 13, 2013, the court granted the Company's
motion to dismiss four derivative actions against the Company's
directors and certain of its officers with leave to amend. In
September 2013, the court is scheduled to hear argument on the
Company's motion to dismiss the consolidated securities class
action, as well as the Company's motion to dismiss, and the
plaintiffs' motion to remand to state court, certain other
derivative actions. In addition, the events surrounding the
Company's IPO have become the subject of various government
inquiries, and the Company is cooperating with those inquiries.
In the opinion of management, there was not at least a reasonable
possibility the Company may have incurred a material loss, or a
material loss in excess of a recorded accrual, with respect to
loss contingencies relating to the pending matters. However, the
outcome of litigation is inherently uncertain. Therefore,
although management considers the likelihood of such an outcome to
be remote, if one or more of these legal matters were resolved
against the Company in the same reporting period for amounts in
excess of management's expectations, the Company's condensed
consolidated financial statements of a particular reporting period
could be materially adversely affected.
Facebook, Inc., is a Delaware corporation headquartered in Menlo
Park, California. Facebook's mission is to give people the power
to share and make the world more open and connected. The Company
builds products that support its mission by creating utility for
users, developers, and marketers. The Company offers marketers a
unique combination of reach, relevance, social context, and
engagement to enhance the value of their ads.
FACEBOOK INC: Suits Brought by Users and Marketers Remain Pending
-----------------------------------------------------------------
Class action lawsuits brought by users and marketers remain
pending, according to Facebook, Inc.'s July 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
The Company is currently parties to multiple other lawsuits
related to the Company's products, including patent infringement
lawsuits as well as class action lawsuits brought by users and
marketers, and the Company may in the future be subject to
additional lawsuits and disputes. The Company is also involved in
other claims, government investigations, and proceedings arising
from the ordinary course of its business. Although the results of
these other lawsuits, claims, government investigations, and
proceedings in which the Company is involved cannot be predicted
with certainty, the Company does not believe that the final
outcome of these other matters will have a material adverse effect
on its business, financial condition, or results of operations.
In the opinion of management, there was not at least a reasonable
possibility the Company may have incurred a material loss, or a
material loss in excess of a recorded accrual, with respect to
loss contingencies relating to the pending matters. However, the
outcome of litigation is inherently uncertain. Therefore,
although management considers the likelihood of such an outcome to
be remote, if one or more of these legal matters were resolved
against the Company in the same reporting period for amounts in
excess of management's expectations, the Company's condensed
consolidated financial statements of a particular reporting period
could be materially adversely affected.
Facebook, Inc., is a Delaware corporation headquartered in Menlo
Park, California. Facebook's mission is to give people the power
to share and make the world more open and connected. The Company
builds products that support its mission by creating utility for
users, developers, and marketers. The Company offers marketers a
unique combination of reach, relevance, social context, and
engagement to enhance the value of their ads.
FIRST CREDIT: Bid for Reconsideration of Class Cert. Denial Tossed
------------------------------------------------------------------
District Judge Virginia M. Kendall rejected a motion for
reconsideration of the court's order issued on March 28, 2013,
denying a motion for class certification in KOFI JAMISON,
Plaintiff, v. FIRST CREDIT SERVICES, INC. d.b.a. ACCOUNTS
RECEIVBABLE TECHNOLOGIES, and AMERICAN HONDA FINANCE CORPORATION,
Defendants, NO. 12 C 4415, (N.D. Ill.).
Plaintiff Kofi Jamison filed this putative class action complaint
against Defendants First Credit Services, Inc. and American Honda
Finance Corporation alleging violations of the Telephone Consumer
Protection Act of 1991, 47 U.S.C. Section 227. The Court denied
Jamison's Motion for Class Certification. Jamison has moved the
Court to reconsider its decision.
Judge Kendall denied the request saying Jamison has not identified
any error on the Court's part that would warrant reconsideration
of the Court's prior order.
A copy of the District Court's July 29, 2013 Memorandum Opinion
and Order is available at http://is.gd/CrvZ0Pfrom Leagle.com.
Kofi Jamison, Plaintiff, represented by Keith James Keogh --
Keith@Keoghlaw.com -- at Keogh Law, Ltd., Craig M. Shapiro --
cshapiro@keoghlaw.com -- at Keogh Law, Ltd, Katherine Marie Bowen
-- kbowen@keoghlaw.com -- at Keogh Law, Ltd & Timothy J. Sostrin
-- tsostrin@keoghlaw.com -- at Keogh Law, LTD.
First Credit Services, Inc., Defendant, represented by David M
Schultz -- dschultz@hinshawlaw.com -- at Hinshaw & Culbertson,
James Constantine Vlahakis -- jvlahakis@hinshawlaw.com -- at
Hinshaw & Culbertson & John Paul Ryan -- jryan@hinshawlaw.com --
at Hinshaw & Culbertson LLP.
American Honda Finance Corporation, Defendant, represented by Eric
Stephen Mattson -- emattson@sidley.com -- at Sidley Austin LLP,
Alison V. Potter -- apotter@sidley.com -- at Sidley Austin LLP &
Michael Christian Andolina -- mandolina@sidley.com -- at Sidley
Austin LLP.
GANN LAW BOOKS: Court Denies Motion to Dismiss TCPA Class Action
----------------------------------------------------------------
District Judge Kevin McNulty denied a motion to dismiss the case
captioned NICHOLAS FITZGERALD, on behalf of himself and all others
similarly situated, Plaintiff, v. GANN LAW BOOKS, INC., GANN LEGAL
EDUCATION FOUNDATION, INC. and MICHAEL PROTZEL, Defendants, CIVIL
ACTION NO. 1-CV-4287 (KM), (D. N.J.).
The Plaintiff, on behalf of himself and others similarly situated,
alleges that Defendants have "caused to be sent thousands of
unsolicited fax advertisements for goods and/or services without
proper-opt-out notices," in violation of the Telephone Consumer
Protection Act, 47 U.S.C. Section 227. The Defendants moved to
dismiss the Complaint.
In the Defendants' view, a federal-court TCPA class action, no
less than a state-court action, must comply with "the laws or
rules of court of [this] State." 47 U.S.C. Section 227(b)(3).
Thus, in their motion to dismiss, the Defendants maintained that
New Jersey state law also operates to bar a TCPA claim from being
maintained as a class action here in federal court.
The Plaintiff responded that, in federal court, the
appropriateness or not of class action treatment is governed
solely by Rule 23 of the Federal Rules of Civil Procedure. In the
Plaintiff's view, a state-law prohibition of private TCPA class
actions has no force in federal court.
According to Judge McNulty, judges in the New Jersey District have
had occasion to examine this issue on several occasions. Applying
U.S. Supreme Court precedent, those cases have uniformly held that
Rule 23, not state law, governs the viability of a class action
brought under TCPA in federal court, he said.
"I agree, and I also reach the same result as to a supplemental
claim brought under New Jersey state law. Accordingly, I will deny
the Defendants' Motion to Dismiss," Judge McNulty added.
A copy of the District Court's July 29, 2013 Opinion is available
at http://is.gd/xfK2Y3from Leagle.com.
NICHOLAS FITZGERALD, Plaintiff, represented by AYTAN YEHOSHUA
BELLIN -- aytan.bellin@bellinlaw.com -- at BELLIN & ASSOCIATES
LLC.
GANN LAW BOOKS, INC., Defendant, represented by ALLYN ZISSEL LITE
-- alite@ldgrlaw.com -- at LITE DEPALMA GREENBERG, LLC & MAYRA
VELEZ TARANTINO -- mtarantino@ldgrlaw.com -- at LITE DEPALMA
GREENBERG, LLC.
GANN LEGAL EDUCATION FOUNDATION, INC., Defendant, represented by
ALLYN ZISSEL LITE, LITE DEPALMA GREENBERG, LLC & MAYRA VELEZ
TARANTINO, LITE DEPALMA GREENBERG, LLC.
MICHAEL PROTZEL, Defendant, represented by ALLYN ZISSEL LITE, LITE
DEPALMA GREENBERG, LLC & MAYRA VELEZ TARANTINO, LITE DEPALMA
GREENBERG, LLC.
GENERAL MOTORS: Defends Suit by Former Canadian Dealers vs. GMCL
----------------------------------------------------------------
General Motors Company continues to defend its Canadian subsidiary
against a class action lawsuit brought by former dealers,
according to the Company's July 25, 2013, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2013.
On February 12, 2010, a claim was filed in the Ontario Superior
Court of Justice against General Motors of Canada Limited (GMCL)
on behalf of a purported class of over 200 former GMCL dealers
(the Plaintiff Dealers) which had entered into wind-down
agreements with GMCL. In May 2009, in the context of the global
restructuring of the business and the possibility that GMCL might
be required to initiate insolvency proceedings, GMCL offered the
Plaintiff Dealers the wind-down agreements to assist with their
exit from the GMCL dealer network and to facilitate winding down
their operations in an orderly fashion by December 31, 2009, or
such other date as GMCL approved but no later than on October 31,
2010. The Plaintiff Dealers allege that the Dealer Sales and
Service Agreements were wrongly terminated by GMCL and that GMCL
failed to comply with certain disclosure obligations, breached its
statutory duty of fair dealing and unlawfully interfered with the
Plaintiff Dealers' statutory right to associate in an attempt to
coerce the Plaintiff Dealers into accepting the wind-down
agreements. The Plaintiff Dealers seek damages and assert that
the wind-down agreements are rescindable. The Plaintiff Dealers'
initial pleading makes reference to a claim "not exceeding" CAD
$750 million, without explanation of any specific measure of
damages. On March 1, 2011, the court approved certification of a
class for the purpose of deciding a number of specifically defined
issues including: (1) whether GMCL breached its obligation of
"good faith" in offering the wind-down agreements; (2) whether
GMCL interfered with the Plaintiff Dealers' rights of free
association; (3) whether GMCL was obligated to provide a
disclosure statement and/or disclose more specific information
regarding its restructuring plans in connection with proffering
the wind-down agreements; and (4) assuming liability, whether the
Plaintiff Dealers can recover damages in the aggregate (as opposed
to proving individual damages). On June 22, 2011, the court
granted GMCL permission to appeal the class certification
decision. On March 26, 2012, the Ontario Superior Court dismissed
GMCL's appeal of the class certification order. Accordingly, the
case will proceed as a class action.
Twenty-nine dealers within the certified class definition have
indicated that they will not participate. The current prospects
for liability are uncertain, but because liability is not deemed
probable, the Company has no accrual relating to this litigation.
The Company cannot estimate the range of reasonably possible loss
in the event of liability as the case presents a variety of
different legal theories, none of which GMCL believes are valid.
Detroit, Michigan-based General Motors Company --
http://www.gm.com/-- designs, builds and sells cars, trucks and
automobile parts worldwide. The Company also provide automotive
financing services through General Motors Financial Company, Inc.
GMAC MORTGAGE: Court Denies Claims Dismissal Bid in FDCPA Suit
--------------------------------------------------------------
District Judge Amy J. St. Eve denied motions to dismiss claims in
ANTOINETTE ARIBAL, Plaintiff, v. GMAC MORTGAGE, LLC, PARTNERS FOR
PAYMENT RELIEF DE III, LLC, and POTESTIVO & ASSOCIATES, PC,
Defendants, CASE NO. 12 C 9735, (N.D. Ill.).
Plaintiff Antoinette Aribal brought her nine-count Amended Class
Action Complaint on January 29, 2013, against Defendants GMAC
Mortgage LLC, Partners for Payment Relief DE III, LLC, and
Potestivo & Associates, PC for allegedly violating the Fair Debt
Collection Practices Act, 15 U.S.C. Section 1692, et seq., and
state law.
Partners and Potestivo moved to dismiss pursuant to Federal Rules
of Civil Procedure 9(b) and 12(b)(6).
The Court denies Partners' and Potestivo's motions saying the
plaintiff sufficiently alleged facts supporting her claims.
A copy of the District Court's July 29, 2013 Memorandum Opinion
and Order is available at http://is.gd/CFlEgPfrom Leagle.com.
Antoinette Aribal, Plaintiff, represented by Daniel A. Edelman --
-- courtecl@edcombs.com -- Cathleen M. Combs -- ccombs@edcombs.com
-- James O. Latturner -- jlatturner@edcombs.com -- & Thomas
Everett Soule -- tsoule@edcombs.com -- at Edelman, Combs,
Latturner & Goodwin, LLC.
People of the State of Illinois, Plaintiff, represented by Daniel
A. Edelman at Edelman, Combs, Latturner & Goodwin, LLC, Cathleen
M. Combs at Edelman, Combs, Latturner & Goodwin, LLC, James O.
Latturner at Edelman, Combs, Latturner & Goodwin, LLC & Thomas
Everett Soule at Edelman, Combs, Latturner & Goodwin, LLC.
Partners for Payment Relief DE III LLC, Defendant, represented by
Barbara A Farrell, Farrell Law LLC, Beverly M Weber --
bmw@mllfpc.com -- at Martin, Leigh, Laws & Fritzlen, P.c. & Shawn
T. Briner -- stb@mllfpc.com -- at Martin, Leigh, Laws & Fritzlen,
P.C..
Potestivo & Associates PC, Defendant, represented by Keith H.
Werwas -- kwerwas@potestivolaw.com -- at Potestivo & Associates
P.C., Chantelle Renee Neumann -- cneumann@potestivolaw.com -- at
Potestivo & Associates PC, David Glenn Marowske --
dmarowske@potestivolaw.com -- at Potestivo & Associates PC & David
F Pustilnik -- dpustilnik@potestivolaw.com -- at Potestivo &
Associates, P.C.
GUARANTY FINANCIAL: Stockholders' Suit vs. Temple-Inland Dismissed
------------------------------------------------------------------
District Judge Jane J. Boyle dismissed with prejudice a second
amended complaint in the case captioned NORTH PORT FIREFIGHTERS'
PENSION - LOCAL OPTION PLAN, Individually and on behalf of all
others similarly situated, Plaintiff, v. TEMPLE-INLAND, INC.,
KENNETH M. JASTROW II, KENNETH R. DUBUQUE, RONALD D. MURFF, and
CRAIG E. GIFFORD, Defendants, CIVIL ACTION NO. 3:11-CV-3119-B,
(N.D. Tex.).
This action is a private securities fraud putative class action on
behalf of all purchasers of:
Guaranty Financial Group, Inc. ("GFG" or "Guaranty") common stock
between December 12, 2007 and August 24, 2009 (the "Class
Period") against Defendants Temple-Inland, Inc. ("Temple-Inland")
and Guaranty officers and directors Kenneth M. Jastrow II,
Kenneth R. Dubuque, Ronald D. Murff, and Craig E. Gifford
for violations of the Securities and Exchange Act of 1934.
Guaranty Financial Group was a bank-holding company that owned
all the stock of Guaranty Bank. For simplicity, the Court will
refer to both GFG and the Bank as "Guaranty.
According to Judge Boyle, the Plaintiffs' Second Amended
Complaint does not cure the deficiencies of the Amended Class
Action Complaint regarding the Individual Defendants' scienter, as
set forth in the Court's March 28, 2013 Memorandum Opinion and
Order. Given its failure to properly allege scienter, the Second
Amended Complaint's control person claims are also insufficient.
As such, the Second Amended Class Complaint is dismissed, says
Judge Boyle.
The Court added that the Plaintiffs have had multiple
opportunities to state a claim, including their Second Amended
Complaint, filed after the Court's March 28, 2013 decision
detailing the deficiencies in the Amended Complaint. Under these
circumstances, the Court determines that allowing further
amendment will be futile and cause needless delay. Accordingly, in
its discretion, the Court determines that further amendment of the
pleadings is not warranted.
"As such Plaintiffs' claims against the Individual Defendants are
hereby DISMISSED WITH PREJUDICE," rules Judge Boyle.
A copy of the District Court's July 30, 2013 Memorandum Opinion
and Order is available at http://is.gd/eo6tirfrom Leagle.com.
North Port Firefighters' Pension Local Option Plan, Plaintiff,
represented by Joe Kendall -- administrator@kendalllawgroup.com --
at Kendall Law Group LLP, Jamie Jean McKey --
jmckey@kendalllawgroup.com -- at Kendall Law Group LLP, Mario
Alba, Jr -- malba@rgrdlaw.com -- at Robbins Geller Rudman & Dowd
LLP, Matthew I Alpert -- malpert@rgrdlaw.com -- at Robbins Geller
Rudman & Dowd LLP, Robert A Sugarman, Sugarman & Susskind PA,
Samuel H Rudman -- srudman@rgrdlaw.com -- at Robbins Geller Rudman
& Dowd LLP & X Jay Alvarez -- JayA@rgrdlaw.com -- at Robbins
Geller Rudman & Dowd LLP.
Bruce Owens, Plaintiff, represented by Joe Kendall, Kendall Law
Group LLP, Jamie Jean McKey, Kendall Law Group LLP, Mario Alba,
Jr, Robbins Geller Rudman & Dowd LLP, Matthew I Alpert, Robbins
Geller Rudman & Dowd LLP, Samuel H Rudman, Robbins Geller Rudman &
Dowd LLP & X Jay Alvarez, Robbins Geller Rudman & Dowd LLP.
Temple-Inland Inc., Defendant, represented by Rod Phelan --
rod.phelan@bakerbotts.com -- at Baker Botts, David M Murphy --
dmmurphy@wlrk.com -- at Wachtell Lipton Rosen & Katx, John
Benjamin Lawrence -- john.lawrence@bakerbotts.com -- at Baker
Botts, Jonathan B Rubenstein -- jonathan.rubenstein@bakerbotts.com
-- at Baker Botts & Steven Winter -- swinter@wlrk.com -- at
Wachtell Lipton Rosen & Katz.
Kenneth M. Jastrow, II, Defendant, represented by David J Beck --
dbeck@brsfirm.com -- at Beck Redden & Secrest LLP, Eric JR Nichols
-- enichols@brsfirm.com -- at Beck Redden & Secrest LLP, Lindsay A
Hermsen -- lhermsen@meadowscollier.com -- at Meadows Collier Reed
Cousins Crouch & Underman LLP, Marcos Rosales --
mrosales@brsfirm.com -- at Beck Redden & Secrest LLP & Michael E
McCue -- mmccue@meadowscollier.com -- at Meadows Collier Reed
Cousins Crouch & Ungerman LLP.
Kenneth R. Dubuque, Defendant, represented by Joanne Early --
jearly@gardere.com -- at Gardere Wynne Sewell, Debbie E Green,
Gardere Wynne Sewell LLP, Holland Neff O'Neil --
honeil@gardere.com -- at Gardere Wynne Sewell LLP, Joe Bill
Harrison -- jharrison@gardere.com -- at Gardere Wynne Sewell,
Ronald M Gaswirth -- rgaswirth@gardere.com -- at Gardere Wynne
Sewell & William G Whitehill -- bwhitehill@gardere.com -- at
Gardere Wynne Sewell.
Ronald D. Murff, Defendant, represented by Karl G Dial --
kdial@fulbright.com -- at Fulbright & Jaworski LLP & Casey Lee
Moore -- cmoore@fulbright.com -- at Fulbright & Jaworski.
Craig E Gifford, Defendant, represented by Karl G Dial, Fulbright
& Jaworski LLP & Casey Lee Moore, Fulbright & Jaworski.
Guaranty Financial, based in Austin, Texas, and its affiliates
filed for chapter 11 bankruptcy protection (Bankr. N.D. Tex. Case
No. 09-35582) on Aug. 27, 2009, after its bank subsidiary was
taken over by regulators. Guaranty Financial is the fifth largest
U.S. bank failure. The bulk of Guaranty's remains were acquired
by BBVA Compass, the U.S. division of Banco Bilbao Vizcaya
Argentaria SA of Spain.
HSBC BANK: Court Dismisses "Bromfield" Suit
-------------------------------------------
District Judge Michael H. Simon dismissed, without prejudice and
with leave to amend, the case captioned DAMION BROMFIELD,
Plaintiff, v. HSBC BANK NEVADA and PORTFOLIO RECOVERY ASSOCIATES,
LLC, Defendants, NO. 3:13-CV-462-SI, (D. Ore.).
Mr. Bromfield filed his pro se complaint in forma pauperis on
March 18, 2013. Mr. Bromfield said he intends to seek to certify a
class, and argues that his complaint adequately states a claim for
breach of fiduciary duty, breach of contract, false advertising,
and other potential class claims.
The Defendants moved to dismiss all of the Plaintiff's claims for
failure to state a claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.
Judge Simon granted the Defendants' motions to dismiss.
The Plaintiff has until August 30, 2013, to file an amended
complaint that cures the deficiencies identified by the Court. If
an Amended Complaint is not filed by that date, Judgment will be
entered.
Moreover, since the Court found that the Plaintiff fails to state
a valid claim for relief, the Court did not address the
Plaintiff's asserted intent to seek class certification.
A copy of the District Court's July 29, 2013 Opinion and Order
is available at http://is.gd/ys4BIDfrom Leagle.com.
Damion Bromfield, Portland, OR. Plaintiff pro se.
David J. Elkanich -- delkanich@hinshawlaw.com -- and Benjamin P.
O'Glasser -- boglasser@hinshawlaw.com -- at Hinshaw & Culbertson
LLP, Portland, OR, Attorneys for Defendant Portfolio Recovery
Associates, LLC.
Marissa A. Bender -- mbender@bwmlegal.com -- at Bishop, White,
Marshall & Weibel, P.S., Seattle, WA, Attorneys for Defendant HSBC
Bank Nevada, NA.
IGATE CORP: Defends "Jain" Securities Class Suit in California
--------------------------------------------------------------
iGATE Corporation is defending a securities class action lawsuit
filed by Ashish Kumar Jain, according to the Company's July 25,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2013.
A purported class action lawsuit has been filed against the
Company on behalf of certain purchasers of its common stock. The
lawsuit is entitled Ashish Kumar Jain, Individually and On Behalf
of All Others Similarly Situated v. iGATE Corporation and Phaneesh
Murthy, which is filed in the United States District Court for the
Northern District of California. The complaint generally includes
allegations that the Company violated federal securities laws by
failing to disclose information concerning the relationship
between the Company's former Chief Executive Officer and
President, Mr. Murthy, and an employee. The complaint seeks
monetary damages and attorney's fees.
Securities class action lawsuits and derivative lawsuits are often
brought against companies following periods of volatility in the
market price of their securities. The Company intends to defend
the current lawsuit and any future lawsuits vigorously. Due to
the inherently unpredictable nature of litigation, the Company
cannot assure that it will be successful. Also, the Company's
insurance coverage may be insufficient, its assets may be
insufficient to cover any amounts that exceed its insurance
coverage, and the Company may have to pay damage awards or
otherwise may enter into settlement arrangements in connection
with such claims. Any such payments or settlement arrangements in
this current litigation or any future litigation could have
material adverse effects on the Company's business, operating
results or financial condition. Even if the plaintiffs' claims
are not successful, this or future litigation could result in
substantial costs and significantly and adversely impact the
Company's reputation and divert management's attention and
resources, which could have a material adverse effect on its
business, operating results or financial condition. In addition,
such lawsuits may make it more difficult to finance the Company's
operations.
iGATE Corporation -- http://www.igate.com/-- is a worldwide
outsourcing provider of integrated end-to-end offshore centric IT
and IT-enabled operations solutions and services. The Fremont,
California-based Company delivers a comprehensive range of IT
services through globally integrated onsite and offshore delivery
locations primarily in India.
INGRAM MICRO: Entitled to $29-Mil. Award in LCD-Related Suit
------------------------------------------------------------
Ingram Micro Inc. disclosed in its July 25, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 29, 2013, that it is entitled to an award of $29
million in connection with its claim from certain manufacturers of
LCD flat panel displays.
The Company has been a claimant in a class action proceeding
seeking damages from certain manufacturers of LCD flat panel
displays. On July 12, 2013, the federal district judge overseeing
the proceeding issued an order approving a plan of distribution to
the class claimants. The distribution entitles the Company to an
award of $29 million, net of all attorney fees and expenses, which
is expected to be received and recognized in the third quarter of
2013. The court has deferred distribution of a portion of the
settlement fund. Accordingly, the Company may receive up to an
additional $7 million from the remaining escrowed settlement fund
in the future depending on the extent to which subsequent,
approved claims are made on the fund.
Headquartered in Santa Ana, California, Ingram Micro Inc. is the
largest wholesale technology distributor and a global leader in IT
supply-chain and mobile device lifecycle services worldwide based
on revenues. The Company offers a broad range of IT products and
supply chain solutions, and helps generate demand and create
efficiencies for its customers and suppliers around the world.
INTERNAP NETWORK: Defends Two Remaining Claims in Securities Suit
-----------------------------------------------------------------
Internap Network Services Corporation continues to defend two
remaining claims in a securities class action lawsuit pending in
Georgia, according to the Company's July 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
On November 12, 2008, a putative securities fraud class action
lawsuit was filed against the Company and its former chief
executive officer in the United States District Court for the
Northern District of Georgia, captioned Catherine Anastasio and
Stephen Anastasio v. Internap Network Services Corp. and James P.
DeBlasio, Civil Action No. 1:08-CV-3462-JOF. The complaint
alleges that the Company and the individual defendant violated
Section 10(b) of the Securities Exchange Act of 1934 (the
"Exchange Act") and that the individual defendant also violated
Section 20(a) of the Exchange Act as a "control person" of
Internap. The Plaintiffs purport to bring these claims on behalf
of a class of the Company's investors who purchased its common
stock between March 28, 2007, and March 18, 2008.
The Plaintiffs allege generally that, during the putative class
period, the Company made misleading statements and omitted
material information regarding (a) integration of VitalStream,
which the Company acquired in 2007, (b) customer issues and
related credits due to services outages and (c) the Company's
previously reported 2007 revenue that it subsequently reduced in
2008 as announced on March 18, 2008. The Plaintiffs assert that
the Company and the individual defendant made these misstatements
and omissions to maintain its share price. The Plaintiffs seek
unspecified damages and other relief.
On August 12, 2009, the Court granted the plaintiffs leave to file
an Amended Class Action Complaint ("Amended Complaint"). The
Amended Complaint added a claim for violation of Section 14(a) of
the Exchange Act based on alleged misrepresentations in the
Company's proxy statement in connection with its acquisition of
VitalStream. The Amended Complaint also added the Company's
former chief financial officer as a defendant and lengthened the
putative class period.
On September 11, 2009, the Company and the individual defendants
filed motions to dismiss. On November 6, 2009, the plaintiffs
filed a Corrected Amended Class Action Complaint. On December 7,
2009, the plaintiffs filed a motion for leave to file a Second
Amended Class Action Complaint to add allegations regarding, inter
alia, an alleged failure to conduct due diligence in connection
with the VitalStream acquisition and additional statements from
purported confidential witnesses.
On September 15, 2010, the Court granted the Company's motion to
dismiss and denied the individual defendants' motion to dismiss.
The Court dismissed plaintiffs' claims under Section 14(a) of the
Exchange Act. With respect to plaintiffs' claims under Section
10(b) of the Exchange Act, the Court held that the Amended
Complaint failed to satisfy the pleading requirements of the
Private Securities Litigation Reform Act, but allowed the
plaintiffs' one final opportunity to amend the complaint. On
October 26, 2010, the plaintiffs filed their Third Amended Class
Action Complaint. On December 10, 2010, the Company filed a
motion to dismiss this complaint. On September 30, 2011, the
Court granted in large part the motion to dismiss. The two
remaining claims involve certain alleged misstatements concerning
the progress of the integration of VitalStream and the stability
of the Company's CDN platform.
While the Company will vigorously contest the securities class
action lawsuit, the Company cannot determine the final resolution
of the lawsuit or when it might be resolved. In addition to the
expenses incurred in defending this litigation and any damages
that may be awarded in the event of an adverse ruling, the
Company's management's efforts and attention may be diverted from
the ordinary business operations to address this lawsuit.
Regardless of the outcome, the litigation may have a material
adverse impact on the Company's operations because of diversion of
resources and other factors.
As of June 30, 2013, the Company determined that it could not
reasonably estimate the potential loss with respect to the
litigation, and as a result, the Company has not recognized any
accruals for loss related to such pending litigation and cannot
estimate losses exceeding amounts previously recognized in
connection with these matters, which consisted of expenses in the
aggregate of $0.5 million in 2008 and 2009.
Headquartered in Atlanta, Georgia, Internap Network Services
Corporation provides intelligent information technology
infrastructure services that combine superior performance and
platform flexibility to enable customers to focus on their core
business, improve service levels and lower the cost of IT
operations.
LORILLARD INC: Appeal in Indirect Purchaser Suit Remains Pending
----------------------------------------------------------------
An appeal from the dismissal of an indirect purchaser class action
lawsuit in Kansas remains pending, according to Lorillard, Inc.'s
July 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
Approximately 30 antitrust lawsuits were filed in 2000 and 2001 on
behalf of putative classes of consumers in various state courts
against cigarette manufacturers. The lawsuits all alleged that
the defendants entered into agreements to fix the wholesale prices
of cigarettes in violation of state antitrust laws which permit
indirect purchasers, such as retailers and consumers, to sue under
price fixing or consumer fraud statutes. More than 20 states
permit such lawsuits. Lorillard, Inc.'s principal operating
subsidiary, Lorillard Tobacco Company, was a defendant in all but
one of these indirect purchaser cases. Lorillard, Inc. was not
named as a defendant in any of these cases. Four indirect
purchaser lawsuits, in New York, Florida, New Mexico and Michigan,
thereafter were dismissed by courts in those states. The actions
in all other states, except for Kansas, were either voluntarily
dismissed or dismissed by the courts.
In the Kansas case, the District Court of Seward County certified
a class of Kansas indirect purchasers in 2002. In July 2006, the
Court issued an order confirming that fact discovery was closed,
with the exception of privilege issues that the Court determined,
based on a Special Master's report, justified further fact
discovery. In October 2007, the Court denied all of the
defendants' privilege claims, and the Kansas Supreme Court
thereafter denied a petition seeking to overturn that ruling. On
March 23, 2012, The District Court of Seward County granted the
defendants' motions for summary judgment dismissing the Kansas
lawsuit. The Plaintiff's motion for reconsideration was denied.
On July 18, 2012, the plaintiff filed a notice of appeal to the
Court of Appeals for the State of Kansas.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. The Company's principal
products are marketed under the brand names of Newport, Kent,
True, Maverick and Old Gold with substantially all of its sales in
the United States of America. The Company is based in Greensboro,
North Carolina.
LORILLARD INC: Continues to Defend Suit vs. Unit in West Virginia
-----------------------------------------------------------------
Lorillard, Inc.'s principal operating subsidiary, Lorillard
Tobacco Company, but not Lorillard Inc. is a defendant in one
pending Class Action Case, in which plaintiffs seek class
certification on behalf of groups of cigarette smokers, or the
estates of deceased cigarette smokers, who reside in West
Virginia.
Cigarette manufacturers, including Lorillard Tobacco, have
defeated motions for class certification in a number of cases.
Motions for class certification have also been ruled upon in some
of the "lights" cases or in other class actions to which neither
Lorillard Tobacco nor Lorillard, Inc. was a party. In some of
these cases, courts have denied class certification to the
plaintiffs, while classes have been certified in other matters.
No further updates were reported in the Company's July 25, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. The Company's principal
products are marketed under the brand names of Newport, Kent,
True, Maverick and Old Gold with substantially all of its sales in
the United States of America. The Company is based in Greensboro,
North Carolina.
LORILLARD INC: Continues to Defend Tobacco Antitrust Suit v. Unit
-----------------------------------------------------------------
Lorillard, Inc. continues to defend a subsidiary against a
tobacco-related antitrust class action lawsuit, according to the
Company's July 25, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2013.
Lorillard, Inc.'s principal operating subsidiary, Lorillard
Tobacco Company, is a defendant in a Tobacco-Related Antitrust
Case. Lorillard, Inc. is not a defendant in this case. In 2000
and 2001, a number of cases were brought against cigarette
manufacturers, including Lorillard Tobacco, alleging that
defendants conspired to set the price of cigarettes in violation
of federal and state antitrust and unfair business practices
statutes. The Plaintiffs sought class certification on behalf of
persons who purchased cigarettes directly or indirectly from one
or more of the defendant cigarette manufacturers. All of the
other cases have been either successfully defended or voluntarily
dismissed.
No further updates were reported in the Company's SEC filing.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. The Company's principal
products are marketed under the brand names of Newport, Kent,
True, Maverick and Old Gold with substantially all of its sales in
the United States of America. The Company is based in Greensboro,
North Carolina.
LORILLARD INC: Loews Continues to Defend Product Liability Suits
----------------------------------------------------------------
In connection with the separation of Lorillard, Inc. from Loews
Corporation, Lorillard entered into a separation agreement with
Loews (the "Separation Agreement") and agreed to indemnify Loews
and its officers, directors, employees and agents against all
costs and expenses arising out of third party claims (including,
without limitation, attorneys' fees, interest, penalties and costs
of investigation or preparation for defense), judgments, fines,
losses, claims, damages, liabilities, taxes, demands, assessments
and amounts paid in settlement based on, arising out of or
resulting from, among other things, Loews's ownership of or the
operation of Lorillard and its assets and properties, and its
operation or conduct of its businesses at any time prior to or
following the Separation (including with respect to any product
liability claims).
Loews is a defendant in three pending product liability cases,
each of which are purported Class Action Cases. Pursuant to the
Separation Agreement, Lorillard is required to indemnify Loews for
the amount of any losses and any legal or other fees with respect
to such cases.
No further updates were reported in the Company's July 25, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. The Company's principal
products are marketed under the brand names of Newport, Kent,
True, Maverick and Old Gold with substantially all of its sales in
the United States of America. The Company is based in Greensboro,
North Carolina.
LORILLARD INC: Suits by Flight Attendants vs. Unit Remain Pending
-----------------------------------------------------------------
Lorillard, Inc.'s principal operating subsidiary, Lorillard
Tobacco Company, and three other cigarette manufacturers are the
defendants in each of the pending Flight Attendant Cases.
Lorillard, Inc. is not a defendant in any of these cases. These
lawsuits were filed as a result of a settlement agreement by the
parties, including Lorillard Tobacco, in Broin v. Philip Morris
Companies, Inc., et al. (Circuit Court, Miami-Dade County,
Florida, filed October 31, 1991), a class action brought on behalf
of flight attendants claiming injury as a result of exposure to
environmental tobacco smoke. The settlement agreement, among
other things, permitted the plaintiff class members to file these
individual lawsuits. These individuals may not seek punitive
damages for injuries that arose prior to January 15, 1997. The
period for filing Flight Attendant Cases expired in 2000 and no
additional cases in this category may be filed.
The judges who have presided over the cases that have been tried
have relied upon an order entered in October 2000 by the Circuit
Court of Miami-Dade County, Florida. The October 2000 order has
been construed by these judges as holding that the flight
attendants are not required to prove the substantive liability
elements of their claims for negligence, strict liability and
breach of implied warranty in order to recover damages. The court
further ruled that the trials of these lawsuits are to address
whether the plaintiffs' alleged injuries were caused by their
exposure to environmental tobacco smoke and, if so, the amount of
damages to be awarded.
Lorillard Tobacco was a defendant in each of the eight Flight
Attendant Cases in which verdicts have been returned. The
Defendants have prevailed in seven of the eight trials. In one of
the seven cases in which a defense verdict was returned, the court
granted plaintiff's motion for a new trial and, following appeal,
the case has been returned to the trial court for a second trial.
The six remaining cases in which defense verdicts were returned
are concluded. In the single trial decided for the plaintiff,
French v. Philip Morris Incorporated, et al., the jury awarded
$5.5 million in damages. The court, however, reduced this award
to $500,000. This verdict, as reduced by the trial court, was
affirmed on appeal and the defendants have paid the award.
Lorillard Tobacco's share of the judgment in this matter,
including interest, was approximately $60,000.
As of July 23, 2013, none of the Flight Attendant Cases were
scheduled for trial.
No further updates were reported in the Company's July 25, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
Lorillard, Inc., through its subsidiaries, is engaged in the
manufacture and sale of cigarettes. The Company's principal
products are marketed under the brand names of Newport, Kent,
True, Maverick and Old Gold with substantially all of its sales in
the United States of America. The Company is based in Greensboro,
North Carolina.
LOTUS: 80 Cars Affected by 2011 Evora Model Recall in U.S.
----------------------------------------------------------
Viknesh Vijayenthiran, writing for Motor Authority, reports that
Lotus has issued a recall on certain versions of its Evora sports
car due to a defective oil hose that could rupture, leading to
more serious problems.
The recall affects supercharged 2011 Evora models that feature a
manual transmission and were manufactured from September 2010
through to September 2011.
According to Lotus, only 80 of the affected cars are in the U.S.
The automaker explains that the engine oil cooler hose may chafe
and end up rupturing. This would result in immediate oil loss.
Should the oil end up on the road or on the wheels of the car, it
could cause a reduction in vehicle control and potential engine
failure. Worse still, should the oil spray onto a heat source,
such as the engine, it could even cause a fire.
Lotus is in the process of contacting owners of the affected cars
and a remedy for this recall campaign is still being worked out.
Owners will most likely be asked to bring their cars in to their
nearest Lotus seller, which should be able to replace the engine
oil cooler hose in question.
For further information you can contact the National Highway
Traffic Safety Administration at 1-888-327-4236 (reference recall
campaign number 13V314000) or Lotus at 1-770-476-6564 (reference
recall campaign number 2013/03R).
Some readers may recall that Lotus has previously issued recalls
for the same issue, once in 2011, then in 2012 and most recently
last February.
LUMBER LIQUIDATORS: "Prusak" FACTA Violation Suit in Discovery
--------------------------------------------------------------
The parties in a suit filed by Jaroslaw Prusak, a purported
customer, against Lumber Liquidators Holdings, Inc. over alleged
violation of the Fair and Accurate Credit Transactions Act are
currently engaged in discovery, 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.
On August 30, 2012, Jaroslaw Prusak, a purported customer
("Prusak"), filed a putative class action lawsuit, which was
subsequently amended, against the Company in the United States
District Court for the Northern District of Illinois.
Prusak alleges that the Company willfully violated the Fair and
Accurate Credit Transactions Act ("FACTA") amendment to the Fair
Credit Reporting Act in connection with printed credit card
receipts provided to its customers. Prusak, for himself and the
putative class, seeks statutory damages of no less than $100 and
no more than $1,000 per violation, punitive damages, attorney's
fees and costs, and other relief. The parties are currently
engaged in discovery and the Company intends to defend this matter
vigorously.
Although the Company believes it has defenses to the claims
asserted, no assurances can be given that the Company will be
successful contesting this case, on the merits or otherwise. Given
the uncertainty of litigation, the preliminary stage of the case
and the legal standards that must be met for, among other things,
class certification and success on the merits, the Company cannot
reasonably estimate the possible loss or range of loss that may
result from this action.
MARIANA RETIREMENT FUND: Initial OK Sought for Johnson Settlement
-----------------------------------------------------------------
Ferdie de la Torre, writing for Saipan Tribune, reports that the
lawyers representing Betty Johnson filed on Aug. 2 in federal
court a motion for preliminary approval of the settlement
agreement in her class action against the Northern Mariana Islands
Retirement Fund and the government of the Commonwealth of the
Northern Mariana Islands.
The parties also submitted in the U.S. District Court for the NMI
on Aug. 2 a stipulation and agreement of settlement entered by
Ms. Johnson as representative of the settlement class and her and
class lawyers Margery S. Bronster -- mbronster@bhawaii.net --
Robert M. Hatch -- rhatch@bhhwaii.net -- Bruce Jorgensen, and
Stephen Woodruff, and Gov. Eloy S. Inos.
Also included as signatories in the agreement are Attorney General
Joey P. San Nicolas, Fund trustee ad litem representative Joseph
C. Razzano, Finance Secretary Larrisa Larson, Commonwealth Health
Corp. acting chief operating officer Esther Muna, Northern
Marianas College president Dr. Sharon Hart, and Fund trustees.
U.S. District Court for the NMI designated judge Frances Tydingco-
Gatewood was set to hear the motion for preliminary approval on
Aug. 6.
According to Ms. Johnson's counsels, the primary purpose of the
agreement is to ensure that retirees who are in the class will
receive at least 75% of their benefits in the future.
The agreement will allow the CNMI to let Fund members who are not
yet receiving benefits to withdraw from the Fund and get their
contributions back; and provide a mechanism for the retirees who
are class members to enforce their rights under the settlement.
Members of the settlement class are defined as those who on
Aug. 6, 2013, are members of the Fund's defined benefit plan or
persons who are entitled to survivor's benefits of such members;
provided the person did not execute and deliver to the Fund a
timely election to terminate.
The key provisions of the proposed settlement include the
following:
-- The CNMI will make minimum annual payments to the settlement
fund that are sufficient to allow the Fund to pay the settlement
class members 75% of their retirement benefits.
-- The CNMI agrees to entry of a consent judgment in the amount
of the actuarial present value of accrued benefits of the
settlement class, which can be enforced if the CNMI does not make
its annual payments (the current value of this judgment is $779
million).
-- If the CNMI's fiscal condition improves, the settlement
provides that the CNMI can pay greater annual payments and the
settlement class members' benefits will be increased accordingly.
-- The Fund will pay the CNMI $10 million on entry of the
preliminary approval order so the CNMI can pay a portion of the
refunds of contributions of those members of the Fund who are not
yet receiving benefits and who have elected to withdraw from the
Fund.
-- The Fund will pay another approximately $42 million to the
CNMI when the settlement is finally approved, so the CNMI can pay
the balance of the refunds.
-- Settlement class members will be given notice and an
opportunity to choose to opt-out of the settlement.
-- If the CNMI chooses to pay more than 75% of the benefits
owed to any retirees who opt-out, the CNMI will have to increase
its annual payments to the settlement fund so that class members
can be paid just as much.
-- The CNMI has agreed to pay Ms. Johnson's lawyers' attorneys
fees and costs. The CNMI has agreed to pay these fees and costs
in addition to and separate from the other money it will pay under
the settlement. The class members shall not have to pay any
attorneys fees or costs and no part of the money the CNMI has
agreed to pay the settlement fund for the benefit of the class
members will be used to pay Ms. Johnson's lawyers' attorneys fees
and costs.
-- The CNMI has agreed to pay Johnson $7,500 as a service award
in recognition of her time and effort in bringing and prosecuting
this matter as class representative.
Ms. Johnson proposed a hearing for Sept. 30, 2013, on a motion for
final approval and motion for attorneys fees, costs, and incentive
award.
Ms. Johnson filed the lawsuit in June 2009. Last June 26, the
parties informed Judge Tydingco-Gatewood that a tentative
settlement agreement has been reached.
MCPHERSON, KS: FLSA Suit Plaintiff May File Amended Complaint
-------------------------------------------------------------
The case MATTHEW B. MICHAELS, on behalf of himself and all others
similarly situated, Plaintiff, v. CITY OF McPHERSON, KANSAS,
Defendant, CASE NO. 12-1372-CM, (D. Kan.), is a putative
collective action brought pursuant to the Fair Labor Standards
Act, 29 U.S.C. Section 216(b).
The Plaintiff moved to amend his complaint to add Lark L. Stutts
as a representative party plaintiff. The Defendant opposed the
motion, arguing that amendment is futile. Also pending before the
court is the Plaintiff's Motion for Conditional Certification of
Class Claims Under Section 216(b) of the FLSA for McPherson Police
Officers. Briefing on the motion for conditional certification
has been stayed since January 2013 as the motion was not yet ripe
for review.
District Judge Carlos Murguia determined that amendment is not
futile and granted the Plaintiff's request to file an amended
complaint.
"Once the amended complaint is on file, plaintiff may file an
amended motion to conditionally certify the class," ruled Judge
Murguia.
A copy of the District Court's July 29, 2013 Memorandum and Order
is available at http://is.gd/pKpvN1from Leagle.com.
Matthew B. Michaels, Plaintiff, represented by Mark G. Ayesh --
mayesh@ayesh.kscoxmail.com -- at Ayesh Law Offices & Ray E.
Simmons, Ayesh Law Offices.
City of McPherson, Kansas, Defendant, represented by Mitchell L.
Herren -- mherren@hinklaw.com -- at Hinkle Law Firm LLC, Roger M.
Theis -- rtheis@hinklaw.com -- at Hinkle Law Firm LLC & Trinidad
P. Galdean -- tgaldean@hinklaw.com -- at Hinkle Law Firm LLC.
MILL-TEL INC: Court Certifies Class in Wage and Hour Suit
---------------------------------------------------------
District Judge Eric F. Melgren granted a motion for class
certification in the lawsuit captioned MICHAEL KNIGHT, et al., On
Behalf of Themselves and all Others Similarly Situated,
Plaintiffs, v. MILL-TEL, INC. Defendant, CASE NO. 11-1143-EFM,
(D. Kan.).
Mr. Knight, individually and on behalf of others similarly
situated, asserts wage and hour claims against Defendant Mill-Tel,
Inc., alleging violations of the Fair Labor Standards Act and the
Kansas Wage Payment Act.
The Court granted the Plaintiffs' Motion for Class Certification
of KWPA Claims. Plaintiffs Michael Knight and Lynn Talbott are
designated as class representatives, and their counsel, Withers,
Gough, Pike, Pfaff & Peterson, LLC, and Osman & Smay, LLP, are
designated as class counsel.
The Court ordered the Defendant to provide the Plaintiffs with the
names, addresses, and telephone numbers for all Installation
Technicians who worked in Kansas at any time from March 29, 2006,
to the present, for the purpose of mailing notice.
A copy of the District Court's July 29, 2013 Memorandum and Order
is available at http://is.gd/OXzNk3from Leagle.com.
Michael Knight, Plaintiff, represented by Donald N. Peterson, II,
Withers, Gough, Pike, Pfaff & Peterson LLC, Matthew Edward Osman
-- mosman@workerwagerights.com -- at Osman & Smay LLP & Sean M.
McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC.
Byron Richard, Plaintiff, represented by Donald N. Peterson, II,
Withers, Gough, Pike, Pfaff & Peterson LLC, Matthew Edward Osman,
Osman & Smay LLP & Sean M. McGivern, Withers, Gough, Pike, Pfaff &
Peterson LLC.
Lynn Talbott, Plaintiff, represented by Donald N. Peterson, II,
Withers, Gough, Pike, Pfaff & Peterson LLC, Matthew Edward Osman,
Osman & Smay LLP & Sean M. McGivern, Withers, Gough, Pike, Pfaff &
Peterson LLC.
James Welch, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Denver Nicholson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Brilan Marks, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Emily Boyd, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Lucas Beaty, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Shane Moyer, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Taylor Ashpole, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Kyle Mathias, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Joseph P. Tarantola, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
David Pratt, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
John C. Eckert, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
John W. Mindrup, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Mike Hovey, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Brian Yates, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Eric Young, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Peter Garrelts, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Erik G. Frey, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Christopher Strickland, Plaintiff, represented by Sean M.
McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC.
Lindsay McElfresh, II, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Allen Ware, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Jason Hopkins, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Chris Downing, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Daniel J. Hunt, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Harold Allison, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Carl Starbuck, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Joseph Weidner, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Michael Vanlandingham, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Joe Tavares, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Adam Rogge, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Dwight Pratt, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Michael O'Brien, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Anthony D. Tyler, Jr., Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Andrew Rozell, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Joseph Schott, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Brian Whiley, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
William Byrd, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Sy F. E. Kirby, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Christopher Gleeson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
John H. Sal, Jr., Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Karl W. Rudolph, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Kenneth J. Schiffner, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Elroy J. Lake, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Anthony Lee, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Brian N. Vitale, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Todd Oldenburger, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Robert Sammons, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Eric T. Wightman, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Jason Sigmon, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Tyler Williamson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Matthew Paquette, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Michael Penn, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Richard C. Schermbeck, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Bazell Jamison, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Curtis Musselwhite, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Brice Morrow, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Justin W. Roice, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Lawrence D. Jones, Jr., Plaintiff, represented by Sean M.
McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC.
Michael A. Lewis, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Bobby McGarrah, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Michael Hart, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Chris Venice, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
J.D. Hunt, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
R.C. Moore, III, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Tyler Moore, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Jason MacKey, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Joel Sabatucci, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Katherine E. Reno, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Scott David Crawford, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Donald Turner, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Christopher S. Gilbert, Plaintiff, represented by Sean M.
McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC.
Clinton B. Welch, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Mark M. Mathewson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Bryan Moss, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Elliott R. Adams, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Eric Moss, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Daniel Thomas Smith, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Dwight Schlegel, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Anthony Keith, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Steven Duga, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Andrew Thomas, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Roman L. Reyes, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Alvin Parker, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Paul Morales, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Daniel Morales, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
David Morales, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Jamie Glen Burnam, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Justin Sax, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Kirk R. Conquest, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Troy A. Almaguer, Sr., Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Aaron Snare, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Troy Lee Beal, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Johnathan R. Bell, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Troy Hallum, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Lloyd McDonald, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Jon E. Bell, II, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Dusten R. Smith, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Max Hillman, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Jeremy Vails, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Aaron Warmack, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Jonathan W. Candle, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Terry Hall, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Brandon Olsen, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Floyd D. Brown, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Calvin Burcham, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Marco Ruiz, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Sean Norris, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Marco A. Blazquez, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
John Hicks, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Eric C. Brown, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Sheldon Johnson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Frank H. Berger, III, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Derek Morerod, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Earl Howard, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Michael C. Williams, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Stephen Hite, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Jason M. Georgeulakos, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Michael V. Coy, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Samuel J. Allison, Jr., Plaintiff, represented by Sean M.
McGivern, Withers, Gough, Pike, Pfaff & Peterson LLC.
Cody Trammell, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Justin Boyd, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Kevin R. Robor, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Mike Bowman, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Chris Galliart, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Justin Espen, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Kirk A. Paustian, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Joshua Hudson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Cody Stewart, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Kennon Kriegel, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Michael L. Brewster, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Tyson Mish, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Matt S. Ducoulombier, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Kirk Loebsack, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Sam Breeden, Plaintiff, represented by Sean M. McGivern, Withers,
Gough, Pike, Pfaff & Peterson LLC.
Kendall L. Simpson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Maurice Ransburg, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Jason A. Lorson, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Lawonia Carlton, Plaintiff, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Timothy McCormack, Petitioner, represented by Sean M. McGivern,
Withers, Gough, Pike, Pfaff & Peterson LLC.
Mill-Tel, Inc., Defendant, represented by Ashley J. Shaneyfelt --
ashaneyfelt@laborlawyers.com -- at Fisher & Phillips, LLP, Denise
F. Fields -- dfields@laborlawyers.com -- at Fisher & Phillips,
LLP, Gregory D. Ballew -- gballew@laborlawyers.com -- at Fisher &
Phillips, LLP & J. Randall Coffey -- rcoffey@laborlawyers.com --
at Fisher & Phillips, LLP.
NETFLIX INC: Bid to Dismiss Consolidated Securities Suit Pending
----------------------------------------------------------------
Netflix, Inc.'s motion to dismiss a consolidated securities class
action lawsuit remains pending, according to the Company's
July 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
On January 13, 2012, the first of three purported shareholder
class action lawsuits was filed in the United States District
Court for the Northern District of California against the Company
and certain of its officers and directors. Two additional
purported shareholder class action lawsuits were filed in the same
court on January 27, 2012, and February 29, 2012, alleging
substantially similar claims. These lawsuits were consolidated
into In re Netflix, Inc., Securities Litigation, Case No. 3:12-cv-
00225-SC, and the Court selected lead plaintiffs. The Lead
plaintiffs filed a consolidated complaint which alleged violations
of the federal securities laws on June 26, 2012. The Court
dismissed the consolidated complaint with leave to amend on
February 13, 2013. The Lead plaintiffs filed a first amended
consolidated complaint on March 22, 2013. The first amended
consolidated complaint alleges violations of the federal
securities laws and seeks unspecified compensatory damages and
other relief on behalf of a class of purchasers of the Company's
common stock between October 20, 2010, and October 24, 2011. The
first amended consolidated complaint alleges, among other things,
that the Company issued materially false and misleading statements
primarily regarding the Company's streaming business which led to
artificially inflated stock prices. The Company filed a motion to
dismiss the first amended consolidated complaint on April 24,
2013; that motion is fully briefed and pending.
Management has determined a potential loss is reasonably possible
however, based on its current knowledge, management does not
believe that the amount of such possible loss or a range of
potential loss is reasonably estimable.
Headquartered in Los Gatos, California, Netflix Inc. --
http://www.netflix.com/-- is an Internet subscription service for
TV shows and movies. The Company's subscribers can watch TV shows
and movies, streamed over the Internet to their TVs, computers and
mobile devices.
OVERSTOCK.COM INC: FB Beacon Parties to Appeal to Supreme Court
---------------------------------------------------------------
Overstock.com, Inc. said in its July 25, 2013, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2013, that the appealing parties in a class action
lawsuit related to its use of Facebook Beacon intend to appeal to
the United States Supreme Court.
On August 12, 2008, the Company along with seven other defendants,
were sued in the United States District Court for the Northern
District of California, by Sean Lane, and seventeen other
individuals, on their own behalf and for others similarly in a
class action lawsuit, alleging violations of the Electronic
Communications Privacy Act, Computer Fraud and Abuse Act, Video
Privacy Protection Act, and California's Consumer Legal Remedies
Act and Computer Crime Law. The complaint relates to the
Company's use of a product known as Facebook Beacon, created and
provided to the Company by Facebook, Inc. Facebook Beacon
provided the means for Facebook users to share purchasing data
among their Facebook friends. The parties extended by agreement
the time for defendants' answer, including the Company's answer,
and thereafter, the Plaintiff and Facebook proposed a stipulated
settlement to the Court for approval, which would resolve the case
without requirement of financial contribution from the Company.
On March 17, 2010, over objections lodged by some parties, the
Court entered an order accepting settlement. Various parties
appealed and on September 20, 2012, the Federal Appeals Court for
the 9th Circuit upheld the settlement. Appealing parties have
petitioned for a rehearing. On February 26, 2013, the Court
denied the petition. The appealing parties stated they intend to
appeal to the United States Supreme Court.
Overstock.com, Inc. -- http://www.overstock.com/-- is an online
retailer offering discount brand name, non-brand name and closeout
merchandise, including furniture, home decor, bedding and bath,
housewares, jewelry and watches, apparel and designer accessories,
electronics and computers, and sporting goods, among other
products. The Company sells the products and services through its
Internet Web sites located at http://www.overstock.com/,
http://www.o.co/and http://www.o.biz/.
OVERSTOCK.COM INC: Bid to Dismiss Consumer Suit Remains Pending
---------------------------------------------------------------
Overstock.com, Inc.'s motions to dismiss and to decertify the
class in the class action lawsuit alleging breach of Utah's
consumer protection statute remain pending, according to the
Company's July 25, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2013.
On March 10, 2009, the Company was sued in a class action filed in
the United States District Court, Eastern District of New York.
Cynthia Hines, the nominative plaintiff on behalf of herself and
others similarly situated, seeks damages under claims for breach
of contract, common law fraud and New York consumer fraud laws.
The Plaintiff alleges the Company failed to properly disclose its
returns policy to her and that the Company improperly imposed a
"restocking" charge on her return of a vacuum cleaner. The
Company filed a motion to dismiss based upon assertions that its
agreement with its customers requires all such actions to be
arbitrated in Salt Lake City, Utah. Alternatively, the Company
asked that the case be transferred to the United States District
Court for the District of Utah, so that arbitration may be
compelled in that district. On September 8, 2009, the motion to
dismiss or transfer was denied, the court stating that the
Company's browsewrap agreement was insufficient under New York law
to establish an agreement with the customer to arbitrate disputes
in Utah. On October 8, 2009, the Company filed a Notice of Appeal
of the court's ruling. The appeal was denied. On December 31,
2010, Hines filed an amended complaint. The amended complaint
eliminated common law fraud claims and breach of contract claims
and added claims for breach of Utah's consumer protection statute
and various other state consumer protection statutes. The amended
complaint also asks for an injunction. The Company filed motions
to dismiss and to decertify the class. The court has not ruled on
these motions.
The Company says no estimate of the loss or range of loss related
to the case can be made. The Company intends to vigorously defend
this action.
Overstock.com, Inc. -- http://www.overstock.com/-- is an online
retailer offering discount brand name, non-brand name and closeout
merchandise, including furniture, home decor, bedding and bath,
housewares, jewelry and watches, apparel and designer accessories,
electronics and computers, and sporting goods, among other
products. The Company sells the products and services through its
Internet Web sites located at http://www.overstock.com/,
http://www.o.co/and http://www.o.biz/.
PACIFIC GAS: Class Cert. Denial in Trespassing Suit Upheld
----------------------------------------------------------
The Court of Appeals of California, First District, Division One,
affirmed a trial court order denying class certification in BRIAN
L. KOPONEN et al., Plaintiffs and Appellants, v. PACIFIC GAS &
ELECTRIC COMPANY, Defendant and Respondent; CALIFORNIA CABLE AND
TELECOMMUNICATIONS ASSOCIATION, Intervener and Respondent, NO.
A133174.
Plaintiffs Brian Koponen and The Edith A. Hayes Trust sued, on
behalf of themselves and a putative class of others similarly
situated, defendant Pacific Gas & Electric Company, a public
utility. The Plaintiffs own properties on which PG&E has utility
easements creating rights of way. The Plaintiffs allege PG&E,
without their consent, trespassed on their properties by
installing fiber-optic lines along its utility easements and
leasing or licensing rights in the fiber-optic lines to
telecommunications and Internet companies. The Plaintiffs sought
certification of their suit as a class action. The trial court
denied certification, ruling that individual questions
predominate, and thus the matter is not suitable for class
litigation. The Plaintiffs contend the ruling was in error.
The California Court of Appeals disagrees with the Plaintiffs,
saying the trial court did not abuse its discretion by denying
class certification.
A copy of the Appeals Court's July 30, 2013 Decision is available
at http://is.gd/yhEts1from Leagle.com.
PAPA JOHN'S: Settles Class Action Over Unsolicited Text Messages
----------------------------------------------------------------
MySettlementClaims News reports that if you were sent text
messages advertising Papa John's pizza or other Papa John's
products, goods, or services between September 1, 2009 and May 1,
2010, you may be entitled to a class action settlement award worth
$50.
In Agne, et al. v. Papa John's International, Inc., et al.,
plaintiffs alleged that Defendants used the OnTime4U service to
improperly deliver or cause to be delivered unsolicited text
messages.
Eligible class members will receive $50 plus a coupon for a large
pizza. This is a large award for a settlement of this type.
QUEST DIAGNOSTICS: Faces New Suit Over Acquisition of Celera
------------------------------------------------------------
Quest Diagnostics Incorporated is facing a new lawsuit arising
from its acquisition of Celera Corporation, according to the
Company's July 25, 2013, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2013.
In March 2011, prior to the Company's acquisition of Celera,
several putative class action lawsuits were filed by shareholders
of Celera against the Company, Celera, and the directors of Celera
in the Court of Chancery of Delaware and in California. The
lawsuits allege that Celera's directors breached their fiduciary
duties in connection with the Company's proposed acquisition of
Celera, and that the Company aided and abetted those alleged
breaches. The parties reached a settlement, and the Court of
Chancery of Delaware certified a settlement class and approved the
settlement over the objection of a Celera shareholder, BVF
Partners L.P. On appeal of the Court of Chancery's decision, the
Supreme Court of the State of Delaware affirmed the certification
of the settlement class and approval of the settlement, but
determined that BVF Partners L.P. should have been afforded the
right to "opt out" of the settlement and pursue its claims.
Following this decision, in July 2013, Biotechnology Value Fund,
L.P. and others filed a lawsuit in the United States District
Court for the Northern District of California against the Company,
Celera, former directors of Celera and Credit Suisse Securities
(USA) LLC ("Credit Suisse") alleging federal securities laws
violations and breach of fiduciary duty claims against Celera, its
directors and Credit Suisse. The complaint also alleges that the
Company and Credit Suisse aided and abetted those breaches. The
Company has not yet responded to the complaint.
The Company says its management cannot predict the outcome of
matters pending against it. Although management does not
anticipate that the ultimate outcome of these matters will have a
material adverse effect on the Company's financial condition,
given the high degree of judgment involved in establishing loss
estimates related to these types of matters, the outcome of such
matters may be material to the Company's results of operations or
cash flows in the period in which the impact of such matters is
determined or paid.
Incorporated in Delaware in 1990 and headquartered in Madison, New
Jersey, Quest Diagnostics Incorporated --
http://www.QuestDiagnostics.com/-- is a provider of diagnostic
testing information services.
QUEST DIAGNOSTICS: Parties in Suit v. Celera Still in Discovery
---------------------------------------------------------------
In 2010, a purported class action entitled In re Celera Corp.
Securities Litigation was filed in the United States District
Court for the Northern District of California against Celera
Corporation, a subsidiary of Quest Diagnostics Incorporated, and
certain of its directors and current and former officers. An
amended complaint filed in October 2010 alleges that from April
2008 through July 22, 2009, the defendants made false and
misleading statements regarding Celera's business and financial
results with an intent to defraud investors. The complaint was
further amended in 2011 to add allegations regarding a financial
restatement. The complaint seeks unspecified damages on behalf of
an alleged class of purchasers of Celera's stock during the period
in which the alleged misrepresentations were made. The Company's
motion to dismiss the complaint was denied. The parties are
engaged in discovery.
No further updates were reported in the Company's July 25, 2013,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2013.
The Company says its management cannot predict the outcome of
matters pending against it. Although management does not
anticipate that the ultimate outcome of these matters will have a
material adverse effect on the Company's financial condition,
given the high degree of judgment involved in establishing loss
estimates related to these types of matters, the outcome of such
matters may be material to the Company's results of operations or
cash flows in the period in which the impact of such matters is
determined or paid.
Incorporated in Delaware in 1990 and headquartered in Madison, New
Jersey, Quest Diagnostics Incorporated --
http://www.QuestDiagnostics.com/-- is a provider of diagnostic
testing information services.
QUEST DIAGNOSTICS: Settled New "Mt. Lookout" Suit in Illinois
-------------------------------------------------------------
Parties have reached a settlement to resolve the new lawsuit
initiated by Mt. Lookout Chiropractic Center Inc. against Quest
Diagnostics Incorporated, according to the Company's July 25,
2013, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2013.
In July 2012, a putative class action entitled Mt. Lookout
Chiropractic Center Inc. v. Quest Diagnostics Incorporated, et al.
("Mt. Lookout") was filed in the United States District Court for
the District of New Jersey against the Company, two of its
subsidiaries and others. In June 2013, the plaintiff voluntarily
dismissed the action and filed a new complaint in state court in
Illinois. The new complaint alleges that the defendants violated
the federal Telephone Consumer Protection Act by sending fax
advertisements without permission and without the required opt-out
notice, and seeks monetary damages and injunctive relief. The
parties have reached a settlement that requires court approval.
The Company says its management cannot predict the outcome of
matters pending against it. Although management does not
anticipate that the ultimate outcome of these matters will have a
material adverse effect on the Company's financial condition,
given the high degree of judgment involved in establishing loss
estimates related to these types of matters, the outcome of such
matters may be material to the Company's results of operations or
cash flows in the period in which the impact of such matters is
determined or paid.
Incorporated in Delaware in 1990 and headquartered in Madison, New
Jersey, Quest Diagnostics Incorporated --
http://www.QuestDiagnostics.com/-- is a provider of diagnostic
testing information services.
QUEST DIAGNOSTICS: "Seibert" Plaintiff Seeks Class Certification
----------------------------------------------------------------
The plaintiff in the class action lawsuit titled Seibert v. Quest
Diagnostics Incorporated, et al., recently moved for class
certification, according to the Company's July 25, 2013, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2013.
In November 2010, a putative class action entitled Seibert v.
Quest Diagnostics Incorporated, et al. was filed against the
Company and certain former officers of the Company in New Jersey
state court, on behalf of the Company's sales people nationwide
who were over forty years old and who either resigned or were
terminated after being placed on a performance improvement plan.
The complaint alleges that the defendants' conduct violates the
New Jersey Law Against Discrimination ("NJLAD"), and seeks, among
other things, unspecified damages. The defendants removed the
complaint to the United States District Court for the District of
New Jersey. The plaintiffs filed an amended complaint that added
claims under the Employee Retirement Income Security Act of 1974
("ERISA"). The Company filed a motion seeking to limit the
application of the NJLAD to only those members of the purported
class who worked in New Jersey and to dismiss the individual
defendants. The motion was granted. The only remaining NJLAD
claim is that of the named plaintiff; the ERISA claim remains in
the case. Both parties have filed summary judgment motions. The
defendants' motion was granted in part and denied in part and the
plaintiff's motion was denied. The plaintiff recently moved for
class certification of the remaining claim.
The Company says its management cannot predict the outcome of
matters pending against it. Although management does not
anticipate that the ultimate outcome of these matters will have a
material adverse effect on the Company's financial condition,
given the high degree of judgment involved in establishing loss
estimates related to these types of matters, the outcome of such
matters may be material to the Company's results of operations or
cash flows in the period in which the impact of such matters is
determined or paid.
Incorporated in Delaware in 1990 and headquartered in Madison, New
Jersey, Quest Diagnostics Incorporated --
http://www.QuestDiagnostics.com/-- is a provider of diagnostic
testing information services.
QUEST DIAGNOSTICS: Suit by Female Sales Representatives Dismissed
-----------------------------------------------------------------
The class action lawsuit brought on behalf of all female sales
representatives was dismissed, according to Quest Diagnostics
Incorporated's July 25, 2013 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2013.
In January 2012, a putative class action entitled Beery v. Quest
Diagnostics Incorporated was filed in the United States District
Court for the District of New Jersey against the Company and a
subsidiary, on behalf of all female sales representatives employed
by the defendants from February 17, 2010, to the present. The
amended complaint alleges that the defendants discriminate against
these female sales representatives on account of their gender, in
violation of the federal civil rights and equal pay acts, and
seeks, among other things, injunctive relief and monetary damages.
The Company has filed motions to dismiss the complaint, to strike
the class allegations and to compel arbitration with the named
plaintiffs. The company's motion to compel arbitration was
granted and the case was dismissed.
The Company says its management cannot predict the outcome of
matters pending against it. Although management does not
anticipate that the ultimate outcome of these matters will have a
material adverse effect on the Company's financial condition,
given the high degree of judgment involved in establishing loss
estimates related to these types of matters, the outcome of such
matters may be material to the Company's results of operations or
cash flows in the period in which the impact of such matters is
determined or paid.
Incorporated in Delaware in 1990 and headquartered in Madison, New
Jersey, Quest Diagnostics Incorporated --
http://www.QuestDiagnostics.com/-- is a provider of diagnostic
testing information services.
QUEST DIAGNOSTICS: Suits Over Billing Practices Remain Pending
--------------------------------------------------------------
Class action lawsuits related to billing practices remain pending,
according to Quest Diagnostics Incorporated's July 25, 2013, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2013.
The federal or state governments may bring claims based on new
theories as to the Company's practices, which management believes
to be in compliance with law. In addition, certain federal and
state statutes, including the qui tam provisions of the federal
False Claims Act, allow private individuals to bring lawsuits
against healthcare companies on behalf of government or private
payers. The Company is aware of certain pending individual or
class action lawsuits, and has received several subpoenas, related
to billing practices filed under the qui tam provisions of the
Civil False Claims Act and/or other federal and state statutes,
regulations or other laws. The Company understands that there may
be other pending qui tam claims brought by former employees or
other "whistle blowers" as to which the Company cannot determine
the extent of any potential liability.
The Company says its management cannot predict the outcome of
matters pending against it. Although management does not
anticipate that the ultimate outcome of these matters will have a
material adverse effect on the Company's financial condition,
given the high degree of judgment involved in establishing loss
estimates related to these types of matters, the outcome of such
matters may be material to the Company's results of operations or
cash flows in the period in which the impact of such matters is
determined or paid.
Incorporated in Delaware in 1990 and headquartered in Madison, New
Jersey, Quest Diagnostics Incorporated --
http://www.QuestDiagnostics.com/-- is a provider of diagnostic
testing information services.
RANGE RESOURCES: Puts $87.5MM in Escrow for Royalty Owners
----------------------------------------------------------
Range Resources Corporation paid $87.5 million into an escrow
account as part of the settlement of a suit filed by royalty
owners who claim they are entitled to payment of royalties on
several different categories of alleged "deductions" applied by
third parties who transport and process natural gas production,
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.
Two individuals (one of whom is now deceased), only one of which
was a current royalty owner, filed suit against Range Resources
Corporation and two of the company's subsidiaries, including the
proper defendant Range Resources-Midcontinent, LLC, in the
District Court of Grady County, Oklahoma.
This suit is similar to a number of cases filed in Oklahoma
asserting claims that royalty owners are entitled to payment of
royalties on several different categories of alleged "deductions"
applied by third parties who transport and process natural gas
production.
The alleged deductions include fuel used by the third party in the
transportation and processing of gas, condensate removed by the
third party after the point of sale, the contractually agreed
natural gas liquids recovery percentages, the percentage of
proceeds contracts' contractually agreed pricing percentages and
other similar alleged "deductions."
In addition to the claims made with respect to the alleged
categories of deductions, the Plaintiffs in this litigation have
alleged fraud and the existence of a fiduciary duty to the royalty
owners to attempt to support an argument that no statute of
limitations applies, and the Plaintiffs also claim that interest
accrues on the alleged damages at 12% compounded annually.
As previously disclosed, on February 19, 2013, the District Court
entered an order certifying a class of royalty owners as requested
by the Plaintiffs and the company appealed the certification
order. While this appeal was pending, the parties successfully
mediated the case in May 2013 and the company executed a
Stipulation and Agreement of Settlement, with an effective date of
May 31, 2013, providing for a cash payment to the class in the
amount of $87.5 million in settlement of all claims made by the
class for the period prior to May 31, 2013.
Pursuant to the settlement agreement, on June 28, 2013, the
company paid $87.5 million into an escrow account. While the
settlement is subject to approval by the Court, the company
currently expects the settlement will ultimately receive final
approval.
STATE FARM: "Pellegrino" Insurance Coverage Suit Dismissed
----------------------------------------------------------
District Judge Mitchell S. Goldberg dismissed with prejudice an
amended complaint in LOUIS PELLEGRINO, et al., Plaintiffs, v.
STATE FARM FIRE AND CASUALTY COMPANY, individually and on behalf
of all other affiliated insurance companies, Defendant, CIVIL
ACTION NO. 12-2065, (E.D. Penn.).
This case involves a somewhat atypical property insurance coverage
dispute. The parties agree that a portion of both the siding and
roof of the Plaintiffs' home suffered storm damage. The parties
also agree that such damage constituted a covered loss under the
controlling insurance policy. Plaintiffs Louis and Christine
Pellegrino insist, however, that they are entitled to an actual
cash value payment for both the damaged and undamaged portions of
the roof and siding because State Farm determined that it was
unable to replace the damaged property with "similar
construction."
State Farm moved to dismiss the amended class action complaint for
failure to state a claim upon which relief can be granted.
According to Judge Goldberg, State Farm's practice of withholding
matching costs until the insured has contracted for repair or
replacement is consistent with the terms of the insurance policy,
as well as Pennsylvania law. Because Plaintiffs' bad faith claim
is contingent upon Plaintiffs' ability to state a claim for breach
of contract, their bad faith claim also fails, he says.
"Finally, as Plaintiffs have not sufficiently pled deceptive
conduct, nor justifiable reliance, Plaintiffs have failed to state
a claim for violation of the [Unfair Trade Practices and Consumer
Protection Law]. State Farm's motion to dismiss will be granted,"
he adds.
A copy of the District Court's July 29, 2013 Order and Memorandum
Opinion are available at http://is.gd/R5cwiOand
http://is.gd/ycxMlefrom Leagle.com.
LOUIS PELLEGRINO, Plaintiff, represented by JOSEPH A. ZENSTEIN --
jzenstein@claimsworldwide.com -- at CLAIMS WORLDWIDE LLC, THOMAS
MORE MARRONE -- tmarrone@cbmclaw.com -- at CAROSELLI BEACHLER
MCTIERNAN & CONBOY LLC & RICHARD C. DEFRANCESCO --
rdefrancesco@cbmclaw.com -- at CAROSELLI BEACHLER MCTIERNAN &
CONBOY.
CHRISTINE PELLEGRINO, Plaintiff, represented by JOSEPH A.
ZENSTEIN, CLAIMS WORLDWIDE LLC, THOMAS MORE MARRONE, CAROSELLI
BEACHLER MCTIERNAN & CONBOY LLC & RICHARD C. DEFRANCESCO,
CAROSELLI BEACHLER MCTIERNAN & CONBOY.
STATE FARM FIRE AND CASUALTY COMPANY, Defendant, represented by
JAMES T. MOUGHAN -- jmoughan@britthankins.com -- at BRITT,
HANKINS & MOUGHAN, JOSEPH A. CANCILA, JR. --
jcancila@schiffhardin.com -- at SCHIFF HARDIN LLP & YOLANDA
KONOPACKA DESIPIO -- desipio@bbs-law.com -- at BENNETT, BRICKLIN &
SALTZBURG.
TOKYO ELECTRIC: US-Style Class Action Unlikely for Fukushima Suits
------------------------------------------------------------------
Tomohiro Osaki, writing for The Japan Times, reports that about
1,700 people from various prefectures filed four separate lawsuits
against Tokyo Electric Power Co. and the government last March 11,
exactly two years after the start of the Fukushima nuclear
disaster.
The crisis, which is a long way from ending, has devastated local
industries and agriculture and uprooted thousands of people, some
of whom will perhaps never be able to return home. But the
victims are banding together to seek redress, and the process is
expected to be long.
For the plaintiffs, who recoil at the prospect of backbreaking
litigation, just trying to estimate their losses and find the
evidence to support their claims will be an arduous task, with no
guarantee that any redress won will even come close to equaling
their losses.
Tepco is meanwhile struggling to stay afloat as it faces the
prospect of trillions of yen in legal costs as well as the cost of
financing the decades-long process of decommissioning its melted
reactors.
To expedite the litigation and mitigate the anxiety of the
victims, experts are calling for the introduction of American-
style class-action lawsuits.
Following is a look at the current suits pending and how class-
action suits might work in the plaintiffs' favor:
What options are available to seek damages from Tepco?
One option is to initiate a lawsuit, but there are also two
nonlitigious ways to press for compensation. Neither appears
likely to succeed.
The first way is to apply directly with Tepco for compensation --
a process entailing reams of documents, many fraught with
technical terms. Although the paperwork has improved, the process
still reflects Tepco's reluctance to offer anything remotely close
to full reimbursement, said freelance journalist Shojiro Akashi,
who has extensively covered the Fukushima disaster.
To sign all of these arcane documents means the victim is
"agreeing to terms arbitrarily set up by the power utility,"
giving Tepco the upper hand, Mr. Akashi said.
The second way is to take the out-of-court alternative dispute
resolution tack.
Third-party legal experts at a special center established for this
purpose are mediating settlements between Tepco and its victims.
But since mediated settlements are legally nonbinding in nature at
this point, any proposals made by the center can be vetoed by
either side.
As of July 26, the center had processed 7,221 cases, with 3,494
ending in full satisfaction, a science ministry report said.
What is the most high-profile Fukushima case?
The four suits filed March 11 for some 1,700 plaintiffs, seeking a
combined JPY5.3 billion at district courts in Tokyo, Chiba and
Fukushima prefectures are so far the most prominent.
One of the plaintiffs' lawyers, Izutaro Managi, who is in charge
of the lawsuit filed by 800 people at the Fukushima District
Court, told The Japan Times that 1,000 more plaintiffs intend to
file a second collective lawsuit against Tepco and the government
in September.
How does a U.S.-style class-action suit differ from the mass
litigation targeting Tepco?
The most typical form of Japanese mass litigation involves
individuals who have incurred the same damage joining hands to sue
the same defendant.
A downside of this system is that nonlitigants can't qualify for
judgments handed down by the courts unless they have actually
participated as plaintiffs.
Their eligibility for settlements, therefore, is only ensured if
they commit to the enormous hassle of initiating and pursuing a
mass lawsuit. This includes coordinating their claims and
collecting evidence.
Referred to as "representative actions," the American version is
considered more flexible. Under U.S. procedures, only one or a
few "representative plaintiffs" proceed with lawsuits on behalf of
many others similarly victimized.
Court decisions apply even to nonlitigants.
What are the benefits of introducing American-style class actions?
A U.S.-style class-action suit would spare the plaintiffs the
hassle of having to meet and coordinate their positions
beforehand.
That makes the class-action option easier to pursue.
Also, a class action would lessen the number of plaintiffs
appearing in court, thereby expediting proceedings toward a
settlement.
The class-action approach would also alleviate the need for
individuals to file separate but similar suits, flooding the
courts. This would go a long way toward easing the burden on
taxpayers of having to support widespread trial proceedings.
What is the downside?
Class-action participants would be bound by whatever settlement is
reached in court. If they feel they are getting short-changed,
they would have to declare their intention to "opt out" in
advance.
Representative plaintiffs are thus duty-bound to inform their
class-action colleagues about any likely settlement, via notices,
newspaper ads, TV commercials or other communications. Those who
fail to opt out will be subject to whatever settlement terms are
reached, however disagreeable.
How could class-action suits be introduced in Japan?
Yukuo Yasuda, who co-authored a book on Fukushima's victims with
Akashi and novelist Takashi Hirose in 2011, suggests that the Diet
first pass a special bill to allow for representative class
actions. Once the law is enacted, disaster victims would be able
to form different classes based on occupation or level of damages,
such as dairy farmers, rice growers, fishery operators and so on.
Members of each group would then select representative plaintiffs.
Once a decision is reached on the appropriate level of due
compensation, this amount would be presented as the damages sought
for a specific class to estimate the settlement amounts.
Theoretically, most of the victims would just wait until the lead
plaintiffs' case is over and apply for the agreed-upon redress
later.
Are U.S.-style class actions on the horizon for Japan?
Although there are strong voices calling for such litigation,
there are also strong foes, so they are unlikely to debut anytime
soon.
When contacted by The Japan Times, a lawyer representing a major
Japanese firm who asked to remain anonymous said the introduction
of U.S.-style class-action suits would "certainly decimate" Tepco
by making an untold number of victims eligible for compensation.
Setting a class-action precedent would also be a nightmare for
Japanese companies in general, which means strong resistance can
be counted on from the business community, he said.
Noting that the current redress being meted out by cash-strapped
Tepco is actually being financed by taxpayers, class actions would
only increase the public's burden, he added.
"The whole idea of Japan adopting class actions is totally
nonsense," he said. "There is no way that will ever happen."
TRAVELZOO INC: Appeal From Dismissal of Securities Suit Pending
---------------------------------------------------------------
An appeal from the dismissal of a consolidated securities class
action lawsuit remains pending, according to Travelzoo Inc.'s
July 25, 2013, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2013.
Beginning on August 9, 2011, two purported class action lawsuits
were commenced in the U.S. District Court for the Southern
District of New York. On January 6, 2012, a Consolidated and
Amended Class Action Complaint was filed. The complaint asserts
claims under Section 10(b) and 20(a) pursuant to the Securities
Exchange Act of 1934 ("Exchange Act") alleging that between
March 16, 2011, and July 21, 2011, the Company and/or the
individual defendants purportedly issued materially false and
misleading statements. In particular, the complaint asserts,
among other things, allegations challenging certain statements
relating to the Company's growth. The complaint also makes
allegations regarding the Company's Getaways business and asserts
that certain officers and directors sold stock while in possession
of materially adverse non-public information. The action seeks
unspecified damages and the Company is not able to estimate the
possible loss or range of losses that could potentially result
from the action. On March 29, 2013, the U.S. District Court for
the Southern District of New York issued a decision and order,
granting defendants' motions to dismiss and dismissing the
securities action. The plaintiffs have filed a notice of appeal.
The Company continues to believe that the action is without merit
and intends to defend the lawsuits vigorously.
New York-based Travelzoo Inc. is a global Internet media company.
The Company informs over 26 million subscribers in North America,
Europe and Asia Pacific, as well as millions of Web site users,
about the best travel and entertainment deals available from
thousands of companies. The Company's Web sites include
http://www.travelzoo.com/,http://www.travelzoo.ca/,
http://www.travelzoo.co.uk/,http://www.travelzoo.de/,
http://www.travelzoo.es/,http://www.travelzoo.fr/,
http://cn.travelzoo.com/,http://www.travelzoo.co.jp/,
http://www.travelzoo.com.au/,http://www.travelzoo.com.hk/,and
http://www.travelzoo.com.tw/
WARNER CHILCOTT: Faces ACTONEL Product Liability Suits in Canada
----------------------------------------------------------------
Warner Chilcott Public Limited Company faces four purported
product liability class actions that were brought against the
Company in provincial courts in Canada over the drug ACTONEL,
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 a defendant in approximately 264 cases and a
potential defendant with respect to approximately 380 unfiled
claims involving a total of approximately 652 plaintiffs and
potential plaintiffs relating to the Company's bisphosphonate
prescription drug ACTONEL.
The claimants allege, among other things, that ACTONEL caused them
to suffer osteonecrosis of the jaw ("ONJ"), a rare but serious
condition that involves severe loss or destruction of the jawbone,
and/or atypical fractures of the femur ("AFF"). All of the cases
have been filed in either federal or state courts in the United
States. The Company is in the initial stages of discovery in these
litigations.
The 380 unfiled claims involve potential plaintiffs that have
agreed, pursuant to a tolling agreement, to postpone the filing of
their claims against the Company in exchange for the Company's
agreement to suspend the statutes of limitations relating to their
potential claims.
In addition, the Company is aware of four purported product
liability class actions that were brought against the Company in
provincial courts in Canada alleging, among other things, that
ACTONEL caused the plaintiffs and the proposed class members who
ingested ACTONEL to suffer atypical fractures or other side
effects. It is expected that these plaintiffs will seek class
certification.
Of the approximately 656 total ACTONEL-related claims,
approximately 157 include ONJ-related claims, approximately 481
include AFF-related claims and approximately 4 include both ONJ
and AFF-related claims. The Company is reviewing these lawsuits
and potential claims and intends to defend these claims
vigorously.
WARNER CHILCOTT: Files Motion to Consolidate LOESTRIN 24 FE Suits
-----------------------------------------------------------------
Warner Chilcott Public Limited Company filed a motion with the
Joint Panel on Multidistrict Litigation to consolidate all of the
actions filed by direct and indirect purchasers of LOESTRIN 24 FE
product into a single proceeding, 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.
Commencing in April 2013, multiple putative antitrust class
actions were filed against the Company, Actavis Inc. and Lupin
Ltd. in the U.S. District Court for the Eastern District of
Pennsylvania, the U.S. District Court for the District of New
Jersey and the U.S. District Court for the District of Rhode
Island by purported direct and indirect purchasers of the
Company's LOESTRIN 24 FE product. The Company has filed a motion
with the Joint Panel on Multidistrict Litigation to consolidate
all of the actions in a single proceeding before a single court,
which is pending.
The complaints allege that the plaintiffs paid higher prices for
the Company's LOESTRIN 24 FE product as a result of the Company's
and Actavis's and/or Lupin's alleged actions preventing or
delaying generic competition in violation of U.S. federal
antitrust laws and/or state laws. Plaintiffs seek, among other
things, unspecified treble, multiple and/or punitive damages,
injunctive relief and attorneys' fees.
The Company intends to vigorously defend itself in the litigation.
However, it is impossible to predict with certainty the outcome of
any litigation, and the Company can offer no assurance as to the
timing of any such litigation or whether the Company will be
successful in any such defense.
In addition, repetitive class action complaints asserting similar
claims and allegations are common in antitrust litigation, and the
Company may be subject to additional complaints from plaintiffs of
the same or other classes. If these claims are successful, such
claims could adversely affect the Company and could have a
material adverse effect on the Company's business, financial
condition, results of operation and cash flows. These proceedings
are in the early stages of litigation, and an estimate of the
potential loss, or range of loss, if any, to the Company relating
to these proceedings is not possible at this time.
WARNER CHILCOTT: No Certification Yet in DORYX Antitrust Suit
-------------------------------------------------------------
The motions for class certification in a suit filed by indirect
purchasers of DORYX against Warner Chilcott Public Limited Company
remain pending before the U.S. District Court for the Eastern
District of Pennsylvania, 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.
In July 2012, Mylan Pharmaceuticals Inc. filed a complaint against
the Company and Mayne Pharma International Pty. Ltd.
in the U.S. District Court for the Eastern District of
Pennsylvania alleging that the Company and Mayne prevented or
delayed Mylan's generic competition to the Company's DORYX
products in violation of U.S. federal antitrust laws and
tortiously interfered with Mylan's prospective economic
relationships under Pennsylvania state law. In the complaint,
Mylan seeks unspecified treble and punitive damages and attorneys'
fees.
Following the filing of Mylan's complaint, three putative class
actions were filed against the Company and Mayne by purported
direct purchasers, and one putative class action was filed against
the Company and Mayne by purported indirect purchasers, each in
the same court.
In each case the plaintiffs allege that they paid higher prices
for the Company's DORYX products as a result of the Company's and
Mayne's alleged actions preventing or delaying generic competition
in violation of U.S. federal antitrust laws and/or state laws.
Plaintiffs seek unspecified injunctive relief, treble damages
and/or attorneys' fees. The court consolidated the purported class
actions and the action filed by Mylan and ordered that all the
pending cases proceed on the same schedule.
On February 5, 2013, four retailers filed in the same court a
civil antitrust complaint in their individual capacities against
the Company and Mayne regarding DORYX. On March 28, 2013, another
retailer filed a similar complaint in the same court. Both
retailer complaints recite similar facts and assert similar legal
claims for relief to those asserted in the related cases. Both
retailer complaints have been consolidated with the cases
described.
The Company and Mayne moved to dismiss the claims of Mylan, the
direct purchasers, the indirect purchasers and the retailers. On
November 21, 2012, the Federal Trade Commission filed with the
court an amicus curiae brief supporting the plaintiffs' theory of
relief. On June 12, 2013, the court entered a denial, without
prejudice, of the Company and Mayne's motions to dismiss.
Discovery is ongoing in the consolidated cases. Plaintiffs'
motions for class certification remain pending before the court,
with no class having yet been certified.
WHOLE FOODS: Recalls Gorgonzola Verdi Dolce Italian Cheese
----------------------------------------------------------
Starting date: August 5, 2013
Type of communication: Recall
Alert sub-type: Updated Health Hazard Alert
Subcategory: Microbiological - Listeria
Hazard classification: Class 1
Source of recall: Canadian Food Inspection
Agency
Recalling firm: Whole Foods Market (Markham)
Distribution: Ontario
Extent of the product distribution: Retail
Affected products:
Brand name Common name Size Code(s) on product
---------- ----------- ---- ------------------
1800 Select Gorgonzola Verdi Packages of Best Before date
Silver Dolce Italian varying 13AU23 and 13AU29
Cheese weight
The Canadian Food Inspection Agency (CFIA) and Whole Foods Market
are warning the public not to consume the Gorgonzola Verdi Dolce
Italian cheese because it may be contaminated with Listeria
monocytogenes. Pictures of the recalled products are available
at: http://is.gd/YgFoDa
This product was sold from Whole Foods Market, 3997 Hwy 7,
Markham, Ontario.
There have been no reported illnesses associated with the
consumption of this product.
The retailer, Whole Foods Market, Markham, ON, is voluntarily
recalling the affected product from the marketplace. The CFIA is
monitoring the effectiveness of the recall.
ZIONSOLUTIONS LLC: Court Okays "Pennington Suit" Dismissal Bid
--------------------------------------------------------------
District Judge Joan Humphrey Lefkow granted a motion to dismiss
the case captioned DAVID PENNINGTON, NANCY J. THORNER, PAUL M.
TAIT, and JAMES P. ECONOMOS, on behalf of themselves and all
others similarly situated Plaintiffs, v. ZIONSOLUTIONS LLC, and
BANK OF NEW YORK MELLON, Defendants, NO. 11 C 4754, (N.D. Ill.).
Plaintiffs, David Pennington, Nancy J. Thorner, Paul M. Tait, and
James P. Economos, have filed a four-count class action complaint
against defendants ZionSolutions LLC and Bank of New York Mellon
to enforce their rights under two decommissioning trusts
established by Commonwealth Edison ("ComEd") with respect to a
nuclear power plant in Zion, Illinois. Relying on the Illinois
Public Utilities Act, 220 ILL. COMP. STAT. 5/1-101 et seq.,
plaintiffs request an injunction enjoining improper payments made
to ZionSolutions (count I), the appointment of a qualified trustee
to manage the trusts (count II), the return or credit of the
assets in the trusts (count III), and an accounting of the assets
in the trusts (count IV).
The defendants moved to dismiss and strike the plaintiffs' class
action complaint pursuant to Federal Rules of Civil Procedure
12(b)(6) and 12(f).
A copy of the District Court's July 29, 2013 Opinion and Order is
available at http://is.gd/GWGm7Ofrom Leagle.com.
David W Pennington, Plaintiff, represented by Daniel Jerome
Sponseller -- dsponseller@sponsellerlawfirm.com -- at Law Office
Of Daniel J. Sponseller & Raymond Eugene Stachnik --
res@stachniklaw.com -- at Raymond E. Stachnick & Associates Ltd.
Nancy J Thorner, Plaintiff, represented by Daniel Jerome
Sponseller, Law Office Of Daniel J. Sponseller & Raymond Eugene
Stachnik, Raymond E. Stachnick & Associates Ltd.
Paul M Tait, Plaintiff, represented by Daniel Jerome Sponseller,
Law Office Of Daniel J. Sponseller & Raymond Eugene Stachnik,
Raymond E. Stachnick & Associates Ltd.
James P Economos, Plaintiff, represented by Daniel Jerome
Sponseller, Law Office Of Daniel J. Sponseller & Raymond Eugene
Stachnik, Raymond E. Stachnick & Associates Ltd.
ZionSolutions LLC, Defendant, represented by Scott T. Schutte --
sschutte@morganlewis.com -- at Morgan Lewis & Bockius LLP, Gregory
Thomas Fouts -- gfouts@morganlewis.com -- at Morgan, Lewis &
Bockius LLP & John E. Matthews -- jmatthews@morganlewis.com -- at
Morgan, Lewis & Bockius LLP.
Bank of New York Mellon, Defendant, represented by Scott T.
Schutte, Morgan Lewis & Bockius LLP, Gregory Thomas Fouts, Morgan,
Lewis & Bockius LLP & John E. Matthews, Morgan, Lewis & Bockius
LLP.
* FDA Warns About Unapproved "Natural" Sex Supplements
------------------------------------------------------
Julie Deardorff, writing for Chicago Tribune, reports that the
dietary supplement Rock-It Man was touted as a potent, all-natural
solution for the symptoms of erectile dysfunction, one that
promised results in just 25 minutes.
But when it was tested in a federal lab earlier this year, Rock-It
Man turned out to contain a chemical compound that structurally
resembles sildenafil, the active ingredient in the prescription
drug Viagra.
In what the Food and Drug Administration calls an escalating
public health threat, "natural" supplements are being spiked with
undeclared pharmaceutical drugs, often in higher-than-recommended
doses. Supplements promising sexual prowess and fulfillment are
the most commonly recalled category of tainted products.
So far this year, the FDA has issued public warnings for at least
24 suggestively named sexual supplements because they contained
hidden active ingredients that could be harmful. Nearly all were
advertised as natural and promised results in less than an hour.
The agency also said 10 companies have voluntarily recalled
products after they tested positive for unapproved drugs.
In some cases, the supplements were laced with the very
prescription drugs they claimed to replace, such as sildenafil.
Others contained chemical variants of existing drugs, including
those found in Rock-It Man, a product apparently no longer on the
market. These compounds, called analogues, lack human safety data
and often can slip through testing undetected.
Last year, FDA testing found that a product called Mojo Nights
contained five drugs, including two known pharmaceuticals and
three variants. The agency recently announced it had found a
product adulterated with two analogues and an unapproved
antidepressant.
The mainstream success of Viagra's little blue pill has fueled
demand for cheaper herbal alternatives sold at convenience stores,
pharmacies and online. Some men buy them to avoid the hassle or
embarrassment of visiting a doctor. Others are seeking a safe and
natural alternative to prescription drugs, whose potential side
effects include headaches, blurred vision, flushing and nasal
congestion.
"People are turning away from talking to practitioners and taking
matters into their own hands," said the FDA's Daniel Fabricant,
director of the agency's Division of Dietary Supplement Programs.
But pharmaceutical additives -- which are never listed on the
supplement label -- can cause serious side effects, such as low
blood pressure. If a consumer has an adverse reaction, it can be
difficult for a doctor to help because it is unclear what the
supplement may have contained.
The added drugs also can adversely interact with the nitrates
found in some prescription medications, such as nitroglycerin.
Drugs containing nitrates are often prescribed to men with heart
disease, among whom erectile dysfunction is more common.
Pharmaceutical companies complain that their patented and
rigorously tested medications are being counterfeited and
illegally offered for sale in unsafe ways. The natural products
industry, meanwhile, worries that adulterated products give
supplements a bad name.
Increasing the risk for unwitting consumers, the FDA has limited
regulatory powers over supplements.
In March, the agency warned men not to buy or use Stiff Days after
testing found sildenafil in the supplement. The distributor,
however, is still selling the product, which is available online
at $19.95 for six pills.
"When we purchase these products for resale from overseas, they
are advertised as 100 percent herbal, so some may be tainted
depending on the source, but I really believe that would be the
exception and not the rule," a spokesman for Georgia-based Vertex
Technologies wrote in an email.
Other companies have temporarily halted sales. Mojo Nights'
website states that "due to severe counterfeit problems . . . we
have suspended all sales until further notice." A recorded phone
message cites a "possible production error" and adds that "we
cannot guarantee the authenticity of the product in the
marketplace."
One manufacturer's view
Some supplement manufacturers say their herbal products aren't
designed to treat a problem but rather to enhance health and
wellness, the same way a multivitamin might.
"Picture two marathoner runners, one with just water and the other
with electrolyte replenishment that enhances their performance,"
said Chris Kanik, CEO of a Southern California-based company that
sells the "all natural male enhancement" product Affirm XL. "We
give men an above-satisfactory sexual experience by supporting
their stamina, drive and energy."
The supplement is a blend of vitamins, minerals and herbs,
including extracts of ginseng and maca, "horny goat weed,"
L-arginine, saw palmetto and Tribulus terrestris, according to the
label.
But in April, FDA testing showed a batch manufactured in Korea in
2010 was tainted with sulfoaildenfil, a tweaked version of
sildenafil.
* Food Experts Say Health Risks Higher From Packaged Greens
-----------------------------------------------------------
David Pitt, writing for The Associated Press, reports that the
outbreak of a stomach bug two states have linked to bagged salad
came as little surprise to food safety experts, who say the
process of harvesting, washing and packaging leafy greens provides
numerous opportunities for contamination.
Although nutritionists stress the chances of getting sick from
vegetables are low compared to the dangers of a diet without them,
packaged salads heighten the risk because leaves from several
batches often are mixed together.
"The washing and comingling of different batches of lettuce means
a hazard that may appear in one field can show up in lots of bags
of lettuce because of the common bath," said Caroline Smith
DeWaal, director of the food safety program for the Center for
Science in the Public Interest, a consumer health advocacy
organization based in Washington.
Officials in Iowa and Nebraska say a packaged salad mix containing
iceberg and romaine lettuce, carrots and red cabbage was infected
with cyclospora, a parasite blamed for sickening 397 people in 16
states. It's not clear whether the produce also was to blame for
the outbreak in the other states.
Last year the Food and Drug Administration issued more than 20
recalls for packaged salads, romaine lettuce or spinach. Most
were due to tests finding listeria or E. coli bacteria, both of
which can cause serious illness.
However, of the 693 food product recalls between October 2011 and
September 2012 -- the last available year of records -- only about
15 pertained to bagged lettuce or salads, according to FDA data.
The U.S. Centers for Disease Control and Prevention has estimated
that one in six Americans -- 48 million people -- get sick from
foodborne illnesses each year. About 128,000 are hospitalized and
3,000 die.
In March the CDC released a study that looked at more than 4,500
food-related outbreaks between 1998 and 2008 and found more
illnesses attributed to leafy vegetables -- 22 percent -- than to
any other food. The agency didn't say what percentage of those
was packaged.
Dr. Robert Tauxe, the CDC's deputy director of foodborne,
waterborne and environmental diseases, said the industry that cuts
and bags fresh produce has made significant improvements in its
processes since 2006. An outbreak that year tied to E. coli-
contaminated spinach caused three deaths and sickened 205 people.
"A lot has been done so that actually the bagged lettuce-type
produce is a good deal safer now that it was five years ago," he
said.
Michael Doyle, director of the University of Georgia's Center for
Food Safety, said lettuce is susceptible to contamination because
it grows close to the ground and is more susceptible to microbial
contamination. Water used for irrigation can be contaminated, and
there could be issues with workers lacking good hygienic
practices, he said.
"There are a lot of inherent issues and that's why we're seeing so
many recalls and problems," Mr. Doyle said. "I don't eat bagged
salads if I can avoid them. I haven't for a long time because I
know how they're processed and there's no true kill step in that
process that will kill harmful bacteria in the lettuce."
Head lettuce is easier to clean because contaminants reside on the
outside leaves, which can be removed and the head washed. Leaf
lettuce like romaine and spinach, often the subject of recalls,
are harder to clean because of their stalky nature.
When lettuce is cut it attempts to heal the cut by sealing it to
keep moisture in, but if a processing facility has contaminated
water that sealing process could also seal in some contaminants
into the leaf, making them more difficult to wash away, Doyle
said.
Even still, the risk from eating package salads is tiny, said
Scott Horsfall, chief executive officer of the California Leafy
Greens Marketing Agreement, a trade group of shippers of green
leaf products.
The organization estimates about 50 billion servings of leafy
green vegetables leave California and Arizona every year and
little of it has any issues.
"Any illness is too many, but the reality is the food supply is
very safe," he said. He said the industry focuses on preventing
contamination from reaching vegetables by walking fields and
assessing environmental risks including intrusion from animals,
enforcing worker cleanliness rules, requiring frequent water
testing, and testing fertilizer and compost to eliminate
pathogens.
Packaged salad mixes are about 14.8% of the $45 billion fresh
vegetables market, according to Progressive Grocer's 2012 Consumer
Expenditures Study released in September. That $6 billion in
sales has grown significantly from about $600 million a decade
ago.
Cyclospora is caused by parasites that are spread when people
ingest food or water contaminated with feces. People who are
exposed usually become sick after about a week and have bad
diarrhea and other flu-like symptoms that can last from a few days
to several months if untreated with antibiotics.
Iowa Epidemiologist Dr. Patricia Quinlisk said she is convinced
the product that sickened people is gone, either eaten or expired.
"I would feel very comfortable buying or eating at a restaurant
prepackaged salad mixtures," she said. "The risk would be so low
as to not discourage me from it."
Jennifer Nelson, an associate professor of nutrition at Mayo
Clinic College of Medicine, said ultimately consumers shouldn't
shy away from an otherwise important part of a healthy diet
because of a small risk of contamination.
"Any food does bring along with it some inherent risk. It all gets
back to common sense in food preparation," she said. "If you are
going to be eating leafy greens be sure you wash them, even
prewashed lettuce. Give it several good washes and rinses and
you're about as assured as you can be of being as safe as
possible."
* Suit Wants to Hold Lead Paint Makers Liable for Poisoning
-----------------------------------------------------------
Lynne Peeples, writing for The Huffington Post, reports that a
lawsuit in California that seeks some $1 billion from former lead
paint manufacturers is far from the first attempt to hold the
industry liable for decades of poisoning children and leaving
lingering contamination.
But experts such as Richard Rabin -- who directed a lead poisoning
registry at the Massachusetts Department of Labor for over 20
years -- think the case just might be the first to finally
succeed, marking the end of a long losing streak.
"My ideal hope is something along the lines of what happened with
tobacco," said Mr. Rabin, who initiated the inaugural trial
against the lead paint industry more than 25 years ago.
"It's gone on and on and on," he said of lead litigation, even as
research uncovering lead's dangers, "keeps coming and coming."
After fending off lawsuits since the 1950s, the tables eventually
turned on big tobacco, forcing the industry to pay out hundreds of
billions of dollars in the late 1990s. At that point, it had
become common knowledge that the industry was well aware of the
addictive qualities and the health hazards of their products.
In 1987, with nearly a century of documented dangers accumulated
on childhood lead poisoning, a lawsuit -- spurred by Mr. Rabin --
was filed on behalf of a Boston girl exposed to lead paint as a
toddler.
"I want to be a lawyer, but I don't think I can do the studying,"
Monica Santiago told The New York Times in 1988, then 15 years
old. "In school they teach me, but I forget. The kids call me
dumb. Sometimes when I do homework I cry and rip it up.
Sometimes I get mad or sad and don't know why. My tears fall
fast."
Mr. Rabin said the paint companies prevailed based largely on
technicalities and not merit, as they have in a series of similar
cases since.
In the most recent trial, completing its third week on Aug. 2, 10
California cities and counties brought suit against
representatives of five lead paint companies. The representatives
say the favorable court decisions up to this point were the right
ones, because the companies have never been in the wrong.
The paint industry has funded no-strings-attached research on the
effects of lead and adopted voluntary standards years before
federal regulations were put in place.
"We don't deny documents show the companies were aware of the
risks to workers in their plants in 1900, due to incredibly high
exposures to lead," said Tim Hardy, an attorney for NL Industries
Inc. (formerly the National Lead Co.), makers of Dutch Boy paints
and defendants in the trial. "That's a very different thing from
knowing how much lead is coming from where and might be a problem
to children today."
Industry representatives also brushed off common criticisms that
the Dutch Boy mascot, who debuted in 1907 in National Lead Co.'s
advertisements, kids' paint books and other materials, was
targeted at children.
"There are lots of ads going back to the early 20th century using
children in various poses -- Campbell's soup, all sorts of
products," Mr. Hardy said. "That was just a mode of advertising."
"It's rather absurd to think that companies would market to
children -- children don't make paint purchasing decisions," added
Bonnie J. Campbell, a representative of the defendants. "The
books were so that kids could have something to do while parents
pick out paint colors."
Of note, a Dutch Boy ad in 1918 recommended that paint merchants
"cater to the children," and remember that "the children of today
are the grown-ups of tomorrow."
David Rosner and Gerald Markowitz, authors of the new book Lead
Wars, compare the marketing strategy to that of tobacco's kid-
friendly cartoon icon, Joe Camel. They also note that the lead
paint and tobacco industries hired the same public relations firm
-- Hill and Knowlton, in 1943 and 1953, respectively -- to help
instill doubt about health hazards, garner positive media
attention and keep litigation at bay.
"It was clear that for decades the lead industry had looked on
childhood lead poisoning as a public relations problem, not a
public health crisis," Messrs. Rosner and Markowitz wrote.
Critics of the lead paint industry suggest the companies enlist
similar strategies today.
Perry Gottesfeld, a member of the U.S. Centers for Disease Control
and Prevention's Advisory Committee on Childhood Lead Poisoning
Prevention, testified in the California court. Mr. Gottesfeld
recalled how a representative for Sherwin-Williams Co. -- another
defendant in the case -- refused to disclose her industry
connection during a January 2012 public hearing in which the
representative objected to federal guidelines that would further
protect children from lead poisoning.
Dale Leibach, another spokesperson for the defendants, told
HuffPost that the attorney was upfront that she advised clients on
issues related to lead exposure and effects.
The CDC advisory panel ended up recommending that the threshold
level of concern for lead in a child's blood be cut in half, from
10 micrograms per deciliter of blood to 5. Yet the agency still
warns that no level of lead exposure is safe.
"There is ongoing harm down to the lowest measurable levels,"
Bruce Lanphear, a researcher at Simon Frasier University in
British Columbia and expert witness for the plaintiffs, said
during the first week of the trial in California. He referenced
the heavy metal's effects on puberty, behavior and intellect,
including his research that found an increase in lead in the blood
from less than one to 10 microgram deciliter was associated with a
roughly six-point drop in IQ.
In an interview with HuffPost earlier this year, Mr. Lanphear
described another study in which he found exposure to both lead
and tobacco can magnify their individual effects on the risk of
attention-deficit hyperactivity disorder.
Still, the defendants argue that the proposed remedy of stripping
the toxic heavy metal remaining on millions of residences
throughout California goes too far. If simply kept intact, they
note, lead paint poses no risks.
Paul Mushak, a toxicologist with expertise in lead paint,
testified during week one of the trial that even homes with
"intact surfaces" have hazardous levels of toxic dust due to the
friction from opening and closing windows and doors.
Dr. Cyrus Rangan, director of toxics epidemiology in Los Angeles
County, another witness for the plaintiffs, added that he's seen
poisoning cases where the child was exposed to hazardous dust from
windows despite no other visible deterioration in the home.
Disagreement also abounds as to when dangers of lead dust were
known by the lead paint industry. Most attention in the early 20th
century was directed at sweet-tasting lead paint chips, the source
of exposure for Monica Santiago, the plaintiff in the '80s
lawsuit. Dust's dangers, industry representatives told HuffPost,
were not known until more recently.
In Lead Wars, however, Messrs. Rosner and Markowitz highlight a
1913 report from Dr. Alice Hamilton, a well-respected physician,
which stated that "the danger from the use of lead paints comes
from paint dust in the air and from paint smeared on the hands
which may be carried into the mouth with food or tobacco."
And critics suggest that lead paint makers and tobacco companies
have used similar tactics when faced with growing evidence that
their respective products' are harmful to health.
As public anxiety over the health risks of smoking began to rise
in the 1940s and 1950s, for example, tobacco ad campaigns began
featuring physicians to assure consumers of the safety of
cigarettes.
"More doctors smoke Camels than any other cigarette," read a 1946
ad from the R.J. Reynolds Tobacco Company. The M and D of the
first two words were highlighted in red.
A Dutch Boy paint advertisement from 1927 shows a baby smudging a
wall, under the title "Finger Prints." Not only is a lead-painted
wall easy to clean, suggested the ad, but it's also safe for young
children -- despite the fact that a baby's hands often end up in
their mouth.
Then there was the grinning Dutch Boy himself, which Mr. Rabin
recalled as "ubiquitous" when he was a young boy.
The logo, modeled after a 9-year-old Irish boy, carried a paint
can in one hand and a brush lathered with leaded liquid in the
other.
"I didn't put it all together and realize what they were doing
until years later," Mr. Rabin said. "Then I was just outraged."
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Christopher Patalinghug, Frauline Abangan and Peter A. Chapman,
Editors.
Copyright 2013. All rights reserved. ISSN 1525-2272.
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