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/raid1/www/Hosts/bankrupt/CAR_Public/130812.mbx C L A S S A C T I O N R E P O R T E R Monday, August 12, 2013, Vol. 15, No. 157 Headlines 1ST CENTENNIAL: Class Action May Require More Representatives AIR CANADA: US Transportation Tax Class Action Partially Stayed APPLE INC: Still Faces iPod iTunes Antitrust Litigation APPLE INC: Publishers Object to Agency Agreement Ban AT&T PENSION: Motion for Payment of Attorney's Fees Approved BMW AG: Recalls 541 X5 Model SUVs in Canada BP PLC: Ordered to Pay $130MM to Settlement Administrator BP PLC: Ordered to Explain Refusal to Pay Settlement Administrator BP PLC: Asks Judge to Halt Settlement Payments for Third Time CHOBANI INC: Judge Denies Motion to Disqualify Plaintiffs Counsel CLIC: Sesame Paste Tahina Recalled in Canada Due to Salmonella CONAIR CONSUMER: Recalls Cuisinart 7-Cup (1.75 L) Food Processor CR BARD: Sept. Hearing Set for Suit Over Composix Kugel in Canada CR BARD: Trial in Women's Health Product Claims to Continue CR BARD: Filter Product Claims Hearing Expected in Coming Months DJO FINANCE: Defends Product Liability Suits Over Pain Pumps EQUINIX INC: Plaintiffs Agree Not to Appeal Suit Dismissal EXPEDIA INC: Continues to Defend Suits Over Hotel Occupancy Taxes EXPEDIA INC: Seeks Dismissal of Suit Over Hotel Booking Practices FANNIE MAE: Bid to Alter Judgment in "Vadnais" Case Denied FISHER COMMUNICATIONS: Signs MOU to Settle Merger-Related Suit GRUPO AVAL: Defends Suits Over Pension and Severance Funds JAGUAR: Recalls 183 XK Model Cars in Canada JPMORGAN CHASE: Faces Aluminum Antitrust Class Action LOAD SYSTEMS: Recalls Wind Speed Sensors Due to Injury Risk LOCKHEED MARTIN: Accord in Suit by Retirement System Now Approved MAPLE LEAF: Recalls Schneider Foods Brand Chicken Wings MASS MUTUAL: "Boys" Suit Transferred to N.J. District Court MCDONALD'S CORP: Disputes Class Action Over Debit Payroll Cards MEDTRONIC INC: Aug. 26 Class Action Lead Plaintiff Deadline Set MITCHELL STAVE: Patient Sustained Permanent Injuries, Suit Says MOD-PAC CORP: Four Merger-Related Class Suits Consolidated NAVISTAR INT'L: Lead Plaintiff Appointed in Stockholders' Suit NEW YORK, NY: NYPD to Purge Stop-Frisk Database Under Settlement NORFOLK SOUTHERN: Certification of Fuel Surcharges Suit on Appeal OLAM TOMATO: Recalls Salsa After Glass Found in Some Jars OMNICARE INC: Dismissal of Kentucky Securities Suit Under Appeal OMNICARE INC: Petition for Rehearing of Pension Fund Suit Denied OMNICOM GROUP: Shareholder Files Class Action Over Publicis Merger PANERA BREAD: Pays $3.7MM Part of Accord in Calif. Labor Suit PENGUIN GROUP: Wants Class Action Over Armstrong's Book Dismissed PINNACLE ENTERTAINMENT: Continues to Defend Consolidated Suit SAM'S CLUB: Federal Appeals Court Vacates Class Certification SEI INVESTMENTS: 2nd Cir. Affirmed Dismissal of ETF-Related Suit SEI INVESTMENTS: Continues to Defend Stanford-Related Class Suit SUPERVALU INC: 8th Cir. Remands Suit by Consumer Goods Maker SUPERVALU INC: Court Certifies Suit Over FWW Pay v. Save-A-Lot SYSTEM4 LLC: Employment Lawyer Discusses Supreme Court Ruling TOYOTA MOTOR: Recalls 342,000 Vehicles Over Seat Belt Flaw TOYSMITH OF SUMNER: Recalls Light-Up Toy Frogs and Ducks UNITED STATES: Suit v. Black Farmers Class Action Lawyers Nixed UNITIL CORP: "Bellerman" Plaintiffs Appeal Class Cert. Denial US AIRWAYS: Faces Suits Over Planned Merger With AMR Corporation WEST BANCORPORATION: West Bank Continues to Defend Iowa Suit ZEALANDIA HOLDING: Timeshare Owners File Class Action * Oyster and Clam Products Recalled in the U.S., Canada ********* 1ST CENTENNIAL: Class Action May Require More Representatives ------------------------------------------------------------- On April 20, 2011, shareholder rights attorneys at Robbins Arroyo LLP disclosed that an investor commenced a class action lawsuit in the U.S. District Court for the Central District of California, on behalf of all persons who purchased or otherwise acquired 1st Centennial Bancorp common stock between March 9, 2007 and January 23, 2009, against certain of 1st Centennial's former officers and directors for violations of the Securities Exchange Act of 1934. This press release is being published to alert shareholders about recent events in the Action. The Action Seeks Redress for 1st Centennial's Alleged False and Misleading Statements Made By the Company's Officers and Directors The complaint alleges that certain of 1st Centennial's former officers and directors made materially false and misleading statements during the class period in press releases and filings with the U.S. Securities and Exchange Commission regarding 1st Centennial's financial health and business prospects. On June 25, 2013, the Court held that a statement made on August 7, 2008, satisfied legal standards for stating a securities fraud claim, but dismissed the remaining class claims, potentially narrowing the class to shareholders who purchased 1st Centennial common stock between August 7, 2008 and January 23, 2009. The Claims Asserted on Behalf of 1st Centennial May Be Stronger if Another 1st Centennial Shareholder Is Substituted as Class Representative The Action and the likelihood of a class being certified may be considered stronger if another 1st Centennial shareholder is substituted and/or added as a class representative in the lawsuit. Dismissal of the Action may bar any other action bringing the same claims asserted in this Action because the applicable limitation periods may have expired. If you purchased 1st Centennial stock between August 7, 2008 and January 23, 2009, and wish to serve as a class representative, please contact attorney Darnell R. Donahue at (800) 350-6003, ddonahue@robbinsarroyo.com or via the shareholder information form on the firm's website. Robbins Arroyo LLP -- http://www.robbinsarroyo.com-- is a securities litigation and shareholder rights law firm. The firm represents individual and institutional investors in shareholder derivative and securities class action lawsuits, and has helped its clients realize more than $1 billion of value for themselves and the companies in which they have invested. AIR CANADA: US Transportation Tax Class Action Partially Stayed --------------------------------------------------------------- Carlos P. Martins, Esq. -- cmartins@lexcanada.com -- at Bersenas Jacobsen Chouest Thomson Blackburn LLP reports that on several occasions US resident Teri Prince purchased tickets on the Air Canada website for travel exclusively within Canada. On each occasion she was charged the "US transportation charge" and the "US flight segment tax" because she was resident in the United States. Matthew Wallach, another Air Canada customer, booked a ticket from Los Angeles to Calgary while he was in Canada. He was charged the US transportation charge and the "US passenger facility service charge" (although the latter charge should have been identified as "international travel facilities tax"). The following issues should be noted: * The US transportation tax and US flight segment tax are imposed under Sections 4261(a) and (b) of the US Internal Revenue Code on taxable transportation. * 'Taxable transportation' is defined as transportation that begins and ends in the United States or the 225-mile zone. The term '225-mile zone' means the portion of Canada and Mexico that is no more than 225 miles from the nearest point in the continental United States. * Section 4261(e)(2) of the Code provides that where amounts are "paid outside the United States for taxable transportation, the taxes imposed by subsections (a) and (b) shall apply only if such transportation begins and ends in the United States". Class action The plaintiffs commenced a prospective class action, alleging that: * with respect to tickets purchased in Canada: Air Canada collected taxes under the code when flights did not begin and end in the United States (the 'improper collection' argument); and Air Canada collected US taxes on tickets purchased in Canada, thereby giving unlawful extraterritorial effect to the US tax laws in Canada (the 'extra-territorial' argument); and * with respect to tickets purchased in the United States, only the extraterritorial argument was advanced. The plaintiffs further alleged that Air Canada negligently misrepresented that the US taxes had to be paid as a condition of carriage. Decision In response, Air Canada brought a motion before the Ontario Superior Court of Justice seeking a declaration that the court had no jurisdiction to adjudicate the dispute and, in the alternative, that it should exercise its discretion to decline jurisdiction. In making this argument, Air Canada conceded that it carried on business in Ontario and that there was a real and substantial connection to Ontario such that the court could assume jurisdiction (as in Club Resorts Ltd v Van Breda, 2012 SCC 17). However, Air Canada argued that the court was precluded from hearing the case as a result of the 'revenue' rule, which arose in United States of America v Harden ([1963] SCR 366). In that case, the Supreme Court held that Canadian courts should not enforce foreign revenue laws or judgments either directly or indirectly. The court did not accept Air Canada's argument. Rather, it held that Harden was an "enforcement rule", and that it stood only for the proposition that foreign states may not sue in Canada for taxes due under the law of a foreign state. As a result, the court held that the revenue rule did not apply because the court was not being asked to enforce a claim by the US government for the recovery of taxes. Rather, the issue was whether Air Canada was entitled to and had properly collected amounts from its customers on ticket purchases. The issue then turned to whether the action should be stayed in any event on the basis of forum non conveniens (ie, inconvenient forum). Air Canada argued that the case should be dealt with by the US courts because they are the experts on their own tax legislation. The court noted that this is no different from other cases where a Canadian court is called on to consider a foreign law to determine a Canadian dispute. In any event, the court conducted a Van Breda analysis to determine this portion of the motion. In the case of tickets that were purchased in Canada, the court found that the action could proceed before the Ontario courts because: * it was not more appropriate for a foreign court to determine whether Air Canada's charges to its customers in Canada were lawful in Canada; * the court found that a US court would not be better suited to determine whether the amounts collected were "paid outside the United States" or whether "transportation begins and ends in the United States"; * Air Canada is located in Canada and carries on business in Ontario; * one of the plaintiffs was a Canadian resident; * witnesses were located in both Canada and the United States; * the tickets were purchased in Ontario; and * Air Canada's expert testified that if the case were transferred to the United States, each of the plaintiffs and each of the class members would have to apply for an administrative refund from the Internal Revenue Service -- which would subject them to an additional procedural step before they could commence their improper collection portion of the claim. As a result, the court found that the claims for the tickets purchased in Canada could proceed in the Ontario courts. As to the claims for tickets purchased in the United States, the court reached a different conclusion. It should be recalled that these claims advanced only the extraterritorial argument. The plaintiffs argued, with no supporting jurisprudential authority, that the matter was suitable for the Canadian courts because the ticket related to travel within Canada. Moreover, the issue of whether Air Canada had authority to collect this tax was a matter of Canadian law. The court rejected the plaintiffs' framing of issues in this manner and held that "a Canadian court should not be adjudicating any matters relating to the imposition and collection of taxes on transactions occurring within the United States. To do so would constitute an interference with U.S. tax sovereignty." The court also rejected the argument that the extraterritorial argument should also be heard in Canada to avoid a multiplicity of proceedings. The court found that the improper collection and extraterritorial arguments were fundamentally different -- and therefore there was no unfairness in severing them. The claims relating to tickets purchased in the United States was stayed (Prince v ACE Aviation and Air Canada, 2013 ONSC 2906 (CanLII)). APPLE INC: Still Faces iPod iTunes Antitrust Litigation ------------------------------------------------------- Apple Inc. continues to face the suits: The Apple iPod iTunes Antitrust Litigation (formerly Charoensak v. Apple Computer, Inc. and Tucker v. Apple Computer, Inc.) and Somers v. Apple Inc., according to Apple Inc.'s July 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2013. These related cases were filed on January 3, 2005, July 21, 2006 and December 31, 2007 in the United States District Court for the Northern District of California on behalf of a purported class of direct and indirect purchasers of iPods and iTunes Store content, alleging various claims including alleged unlawful tying of music and video purchased on the iTunes Store with the purchase of iPods and unlawful acquisition or maintenance of monopoly market power under Section 1 and 2 of the Sherman Act, the Cartwright Act, California Business & Professions Code Sec. 17200 (unfair competition), the California Consumer Legal Remedies Act and California monopolization law. Plaintiffs are seeking unspecified compensatory and punitive damages for the class, treble damages, injunctive relief, disgorgement of revenues and/or profits and attorneys fees. Plaintiffs are also seeking digital rights management free versions of any songs downloaded from iTunes or an order requiring the Company to license its digital rights management to all competing music players. The cases are currently pending. APPLE INC: Publishers Object to Agency Agreement Ban ---------------------------------------------------- The Associated Press reports that publishers who settled an electronic book pricing dispute with the federal government say they object to penalties the government wants to impose on Apple Inc. A judge ruled in an antitrust case last month that Cupertino, Calif.-based Apple joined a conspiracy to inflate e-book prices. The trial revealed prices rose after Apple signed so-called agency agreements with publishers in 2010. In such agreements, publishers set prices for each title, rather than retailers. The publishers submitted papers on Aug. 7 in Manhattan federal court that challenge the government's proposed remedy against Apple in the case. The government seeks to ban Apple from entering into agency agreements for five years. The publishers say that penalizes them, not Apple. A government spokeswoman defended the proposed deal, saying settlements with publishers would not be affected. AT&T PENSION: Motion for Payment of Attorney's Fees Approved ------------------------------------------------------------ District Judge Edward M. Chen granted the plaintiff's motion for attorney's fees in the case captioned QUILLER BARNES, Plaintiff, v. AT&T PENSION BENEFIT PLAN -- NONBARGAINED PROGRAM Defendant, NO. C-08-4058 EMC, (N.D. Cal.). Plaintiff Quiller Barnes initiated this action on behalf of himself and a class, asserting that Defendant AT&T Pension Benefit Plan -- Nonbargained Program owed them additional benefits. Mr. Barnes asserted five claims for relief. On May 10, 2012, the Court addressed the parties' cross-motions for summary judgment on three of the claims. The Court granted Mr. Barnes summary judgment on Count I of the complaint but granted the Defendant Plan summary judgment on Counts II and V. Subsequently, the parties stipulated to dismissal of Counts III and IV. Mr. Barnes has appealed, inter alia, the Court's summary judgment order to the Ninth Circuit. In the meantime, currently pending before the Court is Mr. Barnes's motion for attorney's fees and nontaxable costs. Mr. Barnes is asking for more than $1.3 million in fees and $75,000 in costs. The Court grants Mr. Barnes's motion, and costs in the amount of $75,867.85 are awarded. However, the Courts orders the parties to provide supplemental briefing so that the Court may determine what the exact amount of fees awarded should be. Accordingly, the Court deferred a ruling on the specific amount until after the parties have filed supplemental briefs. The Court said it will advise the parties if an additional hearing is needed after it has had an opportunity to review the supplemental briefs. A copy of the District Court's July 26, 2013 Order is available at http://is.gd/8xJvMBfrom Leagle.com. Quiller Barnes, Plaintiff, represented by Bruce Frank Rinaldi -- brinaldi@cohenmilstein.com -- at Cohen Milstein Sellers & Toll PLLC, Cassie Springer -- css@ssrlawgroup.com -- at Springer & Roberts LLP, Michelle Lee Roberts -- michelle@ssrlawgroup.com -- at Springer & Roberts LLP & R. Joseph Barton -- jbarton@cohenmilstein.com -- at Cohen Milstein Sellers & Toll PLLC. AT&T Pension Benefit Plan-NonBargained Program, Defendant, represented by M'Alyssa Christianne Mecenas -- malyssa.mecenas@gmail.com -- at Paul Hastings LLP, Patrick W. Shea -- patrickshea@paulhastings.com -- at Paul Hastings LLP, Regan A.W. Herald -- reganherald@paulhastings.com -- Paul Hastings LLP & Stephen Henry Harris -- stephenharris@paulhastings.com -- at Paul Hastings LLP. BMW AG: Recalls 541 X5 Model SUVs in Canada ------------------------------------------- Starting date: August 2, 2013 Type of communication: Recall Subcategory: SUV Notification type: Safety Mfr System: Fuel Supply Units affected: 541 Source of recall: Transport Canada Identification number: 2013266 TC ID number: 2013266 Affected products: Make Model Model year(s) affected ---- ----- ---------------------- BMW X5 2009, 2010 On certain vehicles equipped with a diesel engine, the fuel filter heater (used for warming diesel fuel during vehicle operation at low ambient air temperature) could malfunction. This could allow permanent activation of the fuel filter heater, including activation on a parked vehicle with the ignition in the OFF position, which could drain the battery. A discharged battery would prevent engine start-up. In certain cases the heater unit could overheat, which could result in a vehicle fire causing property damage and/or personal injury. Dealers will replace the fuel filter heater assembly. BP PLC: Ordered to Pay $130MM to Settlement Administrator --------------------------------------------------------- Michael Kunzelman, writing for The Associated Press, reports that a federal magistrate on Aug. 7 ordered BP to pay more than $130 million in fees to the court-supervised administrator of its multibillion-dollar settlement with Gulf Coast businesses and residents after the company's 2010 oil spill. The ruling comes as BP tries to temporarily block claims payments while former FBI Director Louis Freeh investigates allegations of misconduct by an attorney who worked on the settlement program. BP also has complained of broader problems in the program run by court-appointed claims administrator Patrick Juneau. U.S. Magistrate Sally Shushan ruled that BP is obligated to fund the settlement program's third-quarter budget even though she concluded the company raised "legitimate concerns" about Juneau's operations. But Judge Shushan also ordered BP to pay for the first month of Juneau's fourth-quarter expenses. Only hours later, U.S. District Judge Carl Barbier, who is overseeing the oil spill settlement, upheld her ruling, after BP filed an appeal. Judge Shushan had given both sides until 2 p.m. to appeal her ruling. In a letter on Aug. 5, BP claims official Maria Travis said Juneau's office hasn't provided adequate documentation for the money it requested. Travis also alleged that the program has been plagued by poor productivity and excessive costs. Judge Shushan said that while the dispute over claims documentation was regrettable, that there was no way she could cut off funding for administration of the program on such short notice. "People are dependent. Jobs are dependent. We just can't have that happen," she said. In ordering BP to pay for the first month of the claim center's fourth-quarter expenses, the judge said that would give the parties more time to resolve BP's complaints about Juneau's budgeting process. She ruled that Juneau must start submitting budget proposals 60 days before the start of a quarter, beginning with his budget for the first quarter of 2014. BP attorney Keith Moskowitz said it is "patently unreasonable" to expect BP to pay more than $130 million without a more detailed budget proposal from Juneau. He said the one Juneau submitted in June was "in summary form without any backup." "That's simply not how budgets are created. That's now how businesses are operated," he told Judge Shushan. Moskowitz said BP is not trying to shut down the program, but Juneau said the program would be in jeopardy if BP did not cover its expenses. "We've got bills that are due today," he said. Juneau also defended his operation and claimed BP's characterization of his budget request was distorted. "We give them what they ask for," he said. "We give it to them in a format they ask for." In a separate request, BP has asked a second time for Barbier to suspend settlement payments until Freeh's investigation is completed. The federal judge has not yet ruled on that request. Barbier appointed Freeh, now a private consultant, to investigate. Lionel H. Sutton III, who resigned from Juneau's office on June 21, has been accused of receiving a portion of settlement proceeds for claims he referred to a law firm before he went to work for Juneau. In a court filing on Aug. 5, BP said there was evidence of additional fraud: The company said at least two lawyers who have ruled on appeals of disputed settlement awards were partners at law firms that have represented claimants and filed claims of their own for the firms to be compensated. BP also said it recently learned of allegations that someone employed by the settlement program at its Mobile, Ala., center helped people submit fraudulent claims in exchange for a portion of the awards. Juneau's office suspended that employee and a co-worker who allegedly helped that employee access claims data. Based on the fresh allegations, BP renewed its request to delay claims, which Barbier had previously rejected. BP PLC: Ordered to Explain Refusal to Pay Settlement Administrator ------------------------------------------------------------------ Mark Schleifstein, writing for NOLA.com, reports that a U.S. magistrate judge has ordered BP to appear in federal court on Aug. 7 to explain why the company should not be directed to pay a $130 million bill it was sent to underwrite the cost of operating the center that is processing billions of dollars in economic claims covered by a settlement between BP and private claimants last year. U.S. Magistrate Judge Sally Shushan issued the "show cause" order late on Aug. 6, after being forwarded a BP letter sent to the Deepwater Horizon Settlement Program that says BP won't pay the third-quarter advance payment of $130.3 million to operate the office, until the company is convinced the claims program is being operated properly. The refusal to pay the bill was contained in an Aug. 3 letter from Maria Travis, BP's Gulf Coast Restoration Office claims administrator, to Bob Levine, a senior official with the claims office. It was filed the same day that BP warned the U.S. 5th Circuit Court of Appeals that a decision by that court upholding U.S. District Judge Carl Barbier's interpretation of rules governing the payment of business economic claims, which BP is appealing, would likely result in the multibillion-dollar settlement being dissolved. And on Aug. 5, BP filed a motion demanding a temporary halt to the payment of economic claims until investigations into the operation of the claims center are completed. In that motion, the company presented evidence of what it said was improper payments by an employee of a Mobile, Ala., claims office, and alleged conflicts of interest involving attorneys serving on claims appeal panels whose parent law firms represented claimants participating in the settlement. The BP motion also alleged those law firms had filed their own claims with the center. The Aug. 5 motion was filed with Judge Barbier, who is overseeing the settlement and other federal lawsuits against BP stemming from the BP Deepwater Horizon disaster. Judge Barbier in mid-July had dismissed a similar BP motion to halt the payments, after saying the company had failed to provide evidence of wrongdoing. BP has been critical of the business economic claims, and said in a recent Securities and Exchange Commission filing that the company believes its claims liability has grown to $9.6 billion, from an original estimate of $7.8 billion, and could grow higher if the rules aren't changed. The company said that as of the end of the second quarter, it had booked charges of $42.4 billion related to the spill, and had nearly used up all of a $20 billion trust fund set aside to cover claims. In her Aug. 3 letter to the claims center, Travis said not enough information was provided to back up the need for the third-quarter request, pointing out that BP already has paid $500 million for the claims process. "Given the absence of whatever supporting analysis, metrics or explanatory notes the claims administrator relied upon to create this budget, BP cannot determine if the budget request is reasonable under the circumstances," she said. "Furthermore, based upon our review of recent actual claims processing and administration results, which show even further declines in productivity and increases in cost, we continue to have significant concerns about (the claims program's) poor productivity and excessive costs. "It would be unreasonable to approve a budget that validates and incentivizes the various claims administration vendors to perpetuate their track record of poor productivity and excessive costs," she wrote. Ms. Travis said, for example, two claims contractors identified as BrownGreer and P&N had spent more than $2 million over what was budgeted for their costs in the second quarter of 2013. The letter listed a dozen items that the claims administration office would have to explain before BP would pay the bill. In a statement issued late on Aug. 2, claims administrator Patrick Juneau, who was appointed by Judge Barbier after being recommended by both BP and the Plaintiff Steering Committee, said he would appear at the Aug. 7 hearing. "We will be fully prepared to address and will address the request of the claims administrator to fund the proposed third-quarter budget," Mr. Juneau said. BP PLC: Asks Judge to Halt Settlement Payments for Third Time ------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that BP PLC, citing what it called fresh evidence of fraud in the claims process, once again has asked a federal judge to halt payments from the Deepwater Horizon oil spill settlement fund. The company said it had learned within the past week about a potential conflict involving two members of the claims administrator's appeals panel who were reviewing payments while their law firms were submitting claims. BP's motion for a preliminary injunction, filed on Aug. 5, did not name the firms or the appeals panelists. BP also asserted potential fraud, citing a July 15 tip from its recently established fraud hotline that an employee at the claims center in Mobile, Ala., had been assisting family members in submitting "fraudulent subsistence claims" in exchange for a share of the payments. "Previously, the Court expressed concern that BP had not presented any evidence that the alleged improprieties involved more than the two isolated employees or actually had resulted in improper payments. That is no longer the case," BP attorney Richard Godfrey -- richard.godfrey@kirkland.com -- a senior partner at Kirkland & Ellis in Chicago, wrote. "Three distinct operations in the [claims administration process] suffered a breakdown in prudent management, which demonstrates a 'systemic or widespread problem.'" As recently as July 19, U.S. District Judge Carl Barbier in New Orleans refused to halt payments to individuals and businesses under the settlement of economic damages, the value of which BP last month revised to $9.6 billion. He cited a lack of evidence of fraud involving two former attorneys for the claims administrator accused of accepting payments from The Andry Law Firm in New Orleans, to whom they had once referred oil spill clients. Judge Barbier refused a similar request earlier this year, when BP alleged that the way administrator Patrick Juneau was calculating claims was leading to "windfall" payments to businesses that suffered "fictitious losses." The U.S. Court of Appeals for the Fifth Circuit heard oral arguments on that matter July 8. BP spokeswoman Ellen Moskowitz declined to comment regarding the latest request. Nick Gagliano, a spokesman for Mr. Juneau, wrote in an emailed statement: "As has been the case since day one, we have investigated all allegations brought to our attention, and until our investigation is complete, we will not and should not comment." Since the appeal panelists were appointed last year, their law firms have submitted claims for their own losses and represent claimants, according to BP's motion. One represented five oil spill clients asserting claims, while the other had nine claimants. When another BP attorney, Keith Moskowitz, alerted the claims administrator to the conflicts on August 2, Mr. Juneau told him that one panel lawyer was no longer affiliated with the firm in question, having left to open his own practice. Mr. Juneau disclosed that a third appeals panelist had resigned following the revelation that his wife had filed an oil spill claim, according to BP's motion. "As a result of these conflicts, BP was unknowingly in the unenviable position of having disputes with claimants decided by attorneys who, at the same time, were adverse to BP and essentially suing BP," the company wrote. As for the tipster's information, a Juneau representative verified that the employee in Mobile had been suspended and suspect claims placed on hold, according to a letter attached to BP's motion. A second employee in Mobile was suspended on July 19 for violating security protocol by accessing claims data for the first employee, according to the official. BP called the revelations proof of a rampant problem, noting that the overall claims approval rate in that center is three times the average of other offices. Last month, Judge Barbier appointed former FBI director Louis Freeh to investigate the claims process. CHOBANI INC: Judge Denies Motion to Disqualify Plaintiffs Counsel ----------------------------------------------------------------- Max Taves, writing for The Recorder, reports that Mayer Brown swung for a TKO against the team of plaintiffs lawyers behind a recent wave of food labeling litigation. But in the end, it lost the food fight. U.S. District Judge Lucy Koh on Aug. 2 denied Mayer Brown's motion to disqualify plaintiffs counsel based on their use of an expert previously consulted by the defendant, yogurt maker Chobani Inc. In her order, Judge Koh blamed plaintiffs lawyers for not immediately disclosing their intent to hire EAS Consulting Group to work on other food labeling litigation once a possible conflict with Chobani came to light. However, she called disqualification too harsh of an action, citing a lack of evidence that FDA regulatory expert Elizabeth Campbell of EAS had ever disclosed privileged information to plaintiffs' attorneys. Judge Koh scolded plaintiffs lawyers for not alerting Chobani as soon as they became aware EAS had a conflict. "Plaintiffs' counsel's failure to make this 'simple phone call' risked breaching Chobani's confidences, and could have required plaintiffs' counsel's disqualification," Judge Koh wrote. "While the failure to take these steps may be 'justly criticized,'" she added, "it does not justify the potentially 'disastrous' consequences of disqualifying counsel in this case." Chobani is represented by Mayer Brown L.A. partner Dale Giali -- dgiali@mayerbrown.com In Kane v. Chobani, 12-2425, plaintiffs accuse Chobani of misleading customers with "all natural" labeling and by listing "evaporated cane juice" as an ingredient rather than sugar. The case is among about three dozen food labeling cases in the Northern District brought by the same plaintiffs lawyers. Judge Koh's order disqualifies Campbell and EAS as experts and prohibits plaintiffs counsel from speaking with them about issues overlapping with the Chobani litigation. Don Barrett, the drawling Mississippi plaintiffs lawyer of Big Tobacco fame, said that won't affect his group's other food labeling cases. Mr. Barrett of Barrett Law Group is spearheading the litigation with Robert Clifford of Clifford Law Offices of Chicago. Pierce Gore of Pratt & Associates in San Jose is lead local counsel. Mr. Barrett said plaintiffs have already replaced Campbell with another expert who formerly oversaw the Food and Drug Administration office that drafts food labeling regulations. "They brought the motion as a tactic, and they were unsuccessful," Mr. Barrett said. "They wasted a lot of the court's time and our time. We're now looking forward to dealing with Chobani on the merits." CLIC: Sesame Paste Tahina Recalled in Canada Due to Salmonella -------------------------------------------------------------- Starting date: August 6, 2013 Type of communication: Recall Alert sub-type: Updated Health Hazard Alert Subcategory: Microbiological - Salmonella Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: -- Distribution: Quebec, Ontario Extent of the product distribution: Retail CFIA reference number: 8218 Affected products: Clic brand of Sesame Paste Tahina with LOT#1432/12 and UPC 0 58504 74095 3 The Canadian Food Inspection Agency (CFIA) is warning the public not to consume the Clic brand Tahina because it may be contaminated with Salmonella. Pictures of the recalled product is available at: http://is.gd/qSJtoe There have been no reported illnesses associated with the consumption of these products. The CFIA is working with the importer to remove the affected product from the marketplace. The CFIA is monitoring the effectiveness of the recall. The product, imported from Lebanon, is affected by this alert. CONAIR CONSUMER: Recalls Cuisinart 7-Cup (1.75 L) Food Processor ---------------------------------------------------------------- Starting date: August 6, 2013 Posting date: August 6, 2013 Type of communication: Consumer Product Recall Subcategory: Household Items, Appliances Source of recall: Health Canada Issue: Product Safety, Physical Hazard Audience: General Public Identification number: RA-34865 Affected Products: Cuisinart 7-Cup (1.75 L) Food Processor The recall involves the Cuisinart 7-Cup (1.75 L) Food Processor with these model MFP-107BCC with 068459080301 UPC and model MFP- 107BCHC with 068459093462 UPC. The units come in silver and black chrome. The model number can be found on the bottom of the food processor. If the user overfills the work bowl when using the slicing portion of the reversible slicing / shredding disc of the product, the disc can possibly rise and cause the cutting blade to strike the inner portion of the cover when the unit is running and may create a potential laceration hazard. Pictures of the recalled product is available at: http://is.gd/F6bYP7 Conair Consumer Products ULC has received three reports relating to the reversible/shredding disc in Canada. No injuries have been reported. Health Canada has not received any reports of incidents or injuries related to the use of these food processors. Approximately 6,598 units of the recalled food processors were sold in Canada. The recalled food processors were manufactured in China and sold from October 2012 to July 2013. Companies: Importer Conair Consumer Products ULC Woodbridge Canada Consumers should stop using the recalled food processors immediately and contact Conair Consumer Products ULC to receive a replacement lid and reversible slicing/shredding disc. CR BARD: Sept. Hearing Set for Suit Over Composix Kugel in Canada ----------------------------------------------------------------- A class certification hearing in one of the Canadian class actions filed against C. R. Bard, Inc. over its Composix Kugel is scheduled to take place in September 2013, 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. As of July 18, 2013, approximately 845 federal and 720 state lawsuits involving individual claims by approximately 1,680 plaintiffs, as well as two putative class actions in the United States and three putative class actions in various Canadian provinces, are currently pending against the company with respect to its Composix Kugel and certain other hernia repair implant products (collectively, the "Hernia Product Claims"). The company voluntarily recalled certain sizes and lots of the Composix Kugel products beginning in December 2005. One of the U.S. class action lawsuits consolidated ten previously-filed U.S. class action lawsuits. The putative class actions, none of which has been certified, seek: (i) medical monitoring; (ii) compensatory damages; (iii) punitive damages; (iv) a judicial finding of defect and causation; and/or (v) attorneys' fees. A class certification hearing in one of the Canadian class actions is scheduled to take place in September 2013. Approximately 685 of the state lawsuits, involving individual claims by approximately 780 plaintiffs, are pending in the Superior Court of the State of Rhode Island, with the remainder in various other jurisdictions. The Hernia Product Claims also generally seek damages for personal injury resulting from use of the products. In June 2007, the Composix Kugel lawsuits and, subsequently, other hernia repair product lawsuits, pending in federal courts nationwide were transferred into one Multidistrict Litigation ("MDL") for coordinated pre-trial proceedings in the United States District Court for the District of Rhode Island. On June 30, 2011, the company announced that it had reached agreements in principle with various plaintiffs' law firms to settle the majority of its existing Hernia Product Claims. Each agreement is subject to certain conditions, including requirements for participation in the proposed settlements by a certain minimum number of plaintiffs. In addition, the company continues to engage in discussions with other plaintiffs' law firms regarding potential resolution of unsettled Hernia Product Claims, and intends to vigorously defend Hernia Product Claims that do not settle, including through litigation. The company cannot give any assurances that the resolution of the Hernia Product Claims that have not settled, including asserted and unasserted claims and the putative class action lawsuits, will not have a material adverse effect on the company's business, results of operations, financial condition and/or liquidity. CR BARD: Trial in Women's Health Product Claims to Continue ----------------------------------------------------------- The first trial in the consolidated Women's Health Product Claims against C. R. Bard, Inc. commenced in July 2013, and additional MDL and state court trials are scheduled to continue throughout 2013, 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. As of July 18, 2013, product liability lawsuits involving individual claims by approximately 8,225 plaintiffs have been filed or asserted against the company in various federal and state jurisdictions alleging personal injuries associated with the use of certain of the company's surgical continence products for women, including its Avaulta line of products. In addition, five putative class actions in the United States and three putative class actions in Canada have been filed against the company (all lawsuits, collectively, the "Women's Health Product Claims"). The Women's Health Product Claims generally seek damages for personal injury resulting from use of the products. The putative class actions, none of which has been certified, seek: (i) medical monitoring; (ii) compensatory damages; (iii) punitive damages; (iv) a judicial finding of defect and causation; and/or (v) attorneys' fees. With respect to certain of these claims, the company believes that one of its suppliers has an obligation to defend and indemnify the company. In October 2010, the Women's Health Product Claims involving solely Avaulta products pending in federal courts nationwide were transferred into an MDL in the United States District Court for the Southern District of West Virginia, the scope of which was later expanded to include lawsuits involving all women's surgical continence products that are manufactured or distributed by the company. The company expects additional Women's Health Product Claims pending in federal courts to be transferred to the MDL in West Virginia, with the remainder of the Women's Health Product Claims in other jurisdictions. The first trial in the MDL commenced in July 2013, and additional MDL and state court trials are scheduled to continue throughout 2013. The first trial in a state court was completed in July 2012 and resulted in a judgment against the company of approximately $3.6 million. The company has appealed this decision. The company does not believe that this verdict is representative of the potential outcomes of other Women's Health Product Claims. The case numbers set forth above do not include generic manufacturer complaints involving women's health products as the company cannot, based on the allegations in such complaints, determine whether any of such cases involve the company's women's health products. While the company intends to vigorously defend the Women's Health Product Claims, it cannot give any assurances that the resolution of these claims will not have a material adverse effect on the company's business, results of operations, financial condition and/or liquidity. CR BARD: Filter Product Claims Hearing Expected in Coming Months ---------------------------------------------------------------- C. R. Bard, Inc. expects additional trials of Filter Product Claims to take place over the next 12 months, 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. As of July 18, 2013, product liability lawsuits involving individual claims by 31 plaintiffs are currently pending against the company in various federal and state jurisdictions alleging personal injuries associated with the use of the company's vena cava filter products. In addition, three putative class actions were filed against the company in various state courts (two of which were dismissed during the second quarter) on behalf of plaintiffs who are alleged to have no present injury (all lawsuits, collectively, the "Filter Product Claims"). The remaining putative class action, which has not been certified, seeks: (i) medical monitoring; (ii) punitive damages; (iii) a judicial finding of defect and causation; and/or (iv) attorneys' fees. A class certification hearing is scheduled to take place in July 2013. The first Filter Product Claim trial was completed in June 2012 and resulted in a judgment for the company. The company expects additional trials of Filter Product Claims to take place over the next 12 months. The company has reached an agreement with a law firm that has more than 30 Filter Product Claims pending against the company. During the second quarter of 2013, the company finalized these agreements with respect to such claims, and made payments with respect to such claims within the amounts previously recorded. While the company intends to vigorously defend the remaining unsettled Filter Product Claims, it cannot give any assurances that the resolution of these claims will not have a material adverse effect on the company's business, results of operations, financial condition and/or liquidity. DJO FINANCE: Defends Product Liability Suits Over Pain Pumps ------------------------------------------------------------ DJO Finance LLC continues to defend itself against lawsuits related to disposable drug infusion pump products, according to the Company's July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2013. The Company is currently named as one of several defendants in a number of product liability lawsuits involving approximately 21 plaintiffs in U.S. cases and a lawsuit in Canada which has been granted class action status for a class of approximately 45 claimants, related to a disposable drug infusion pump product (pain pump) manufactured by two third party manufacturers that the Company distributed through its Bracing and Vascular segment. The Company sold pumps manufactured by one manufacturer from 1999 to 2003 and then sold pumps manufactured by a second manufacturer from 2003 to 2009. The Company discontinued its sale of these products in the second quarter of 2009. These cases have been brought against the manufacturers and certain distributors of these pumps. All of these lawsuits allege that the use of these pumps with certain anesthetics for prolonged periods after certain shoulder surgeries or, less commonly, knee surgeries, has resulted in cartilage damage to the plaintiffs. In the past three years, the Company has been dismissed from approximately 410 cases when product identification was later established showing that the Company did not sell the pump in issue. In the past three years, the Company has entered into settlements with the plaintiffs in approximately 100 pain pump lawsuits. As of June 29, 2013, the range of potential loss for these claims is not estimable, although the Company believes it has adequate insurance coverage for such claims. Headquartered in Vista, California, DJO Finance LLC is a global developer, manufacturer and distributor of medical devices that provide solutions for musculoskeletal health, vascular health and pain management. The Company's products are used by orthopedic specialists, spine surgeons, primary care physicians, pain management specialists, physical therapists, podiatrists, chiropractors, athletic trainers and other healthcare professionals. EQUINIX INC: Plaintiffs Agree Not to Appeal Suit Dismissal ---------------------------------------------------------- Equinix, Inc., disclosed in its July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013, that the plaintiffs in a securities class action lawsuit stipulated in July 2013 that they will not appeal any prior court orders, including the dismissal of their third amended complaint. On March 4, 2011, an alleged class action entitled Cement Masons & Plasterers Joint Pension Trust v. Equinix, Inc., et al., No. CV- 11-1016-SC, was filed in the United States District Court for the Northern District of California, against Equinix and two of its officers. The lawsuit asserts purported claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 for allegedly misleading statements regarding the Company's business and financial results. The lawsuit is purportedly brought on behalf of purchasers of the Company's common stock between July 29, 2010, and October 5, 2010, and seeks compensatory damages, fees and costs. Defendants filed a motion to dismiss on November 7, 2011. On March 2, 2012, the Court granted defendants' motion to dismiss without prejudice and gave plaintiffs thirty days in which to amend their complaint. Pursuant to stipulation and order of the court entered on March 16, 2012, the parties agreed that plaintiffs would have up to and through May 2, 2012, to file a Second Amended Complaint. On May 2, 2012, the plaintiffs filed a Second Amended Complaint asserting the same basic allegations as in the prior complaint. On June 15, 2012, defendants moved to dismiss the Second Amended Complaint. On September 19, 2012, the Court took the hearing on defendants' motion to dismiss the Second Amended Complaint off calendar and notified the parties that it would make its decision on the pleadings. Subsequently, on September 24, 2012, the Court requested the parties submit supplemental briefing on or before October 9, 2012. The supplemental briefing was submitted on October 9, 2012. On December 5, 2012, the Court granted defendants' motion to dismiss the Second Amended Complaint without prejudice and on January 15, 2013, Plaintiffs filed their Third Amended Complaint. On February 26, 2013, defendants moved to dismiss the Third Amended Complaint. On June 12, 2013, the Court granted defendants' motion to dismiss the Third Amended Complaint and dismissed the case with prejudice. On July 3, 2013, plaintiffs stipulated that they will not appeal any prior orders issued by the Court in this action, including the Court's June 12, 2013 order dismissing the Third Amended Complaint with prejudice. Equinix, Inc., provides global data center services that protect and connect the world's most valued information assets. The Company is headquartered in Redwood City, California. EXPEDIA INC: Continues to Defend Suits Over Hotel Occupancy Taxes ----------------------------------------------------------------- Expedia, Inc. continues to defend itself against lawsuits over issues involving the payment of hotel occupancy taxes, according to the Company's July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. The Company is currently involved in forty-two lawsuits brought by or against states, cities and counties over issues involving the payment of hotel occupancy taxes. The Company continues to defend these lawsuits vigorously. With respect to the principal claims in these matters, the Company believes that the ordinances at issue do not apply to the services the Company provides, namely the facilitation of hotel reservations, and, therefore, that the Company does not owe the taxes that are claimed to be owed. The Company believes that the ordinances at issue generally impose occupancy and other taxes on entities that own, operate or control hotels (or similar businesses) or furnish or provide hotel rooms or similar accommodations. Recent developments include: * City of Chicago, Illinois Litigation. On June 21, 2013, and subsequently on June 28, 2013, the court entered an order and a supplemental order resolving the parties pending cross motions for summary judgment. The court denied the defendant online travel companies' motion for summary judgment and granted in part and denied in part the city of Chicago's motion for summary judgment holding the online travel companies liable for hotel occupancy taxes. * San Antonio, Texas Litigation. On April 4, 2013, the court entered a final judgment holding the online travel companies liable for hotel occupancy taxes to counties and cities in the statewide class. The online travel companies have filed a motion for judgment as a matter of law or, in the alternative, for a new trial. The cities have filed a motion to amend the judgment regarding calculation of penalties. These motions remain pending. * City of Gallup, New Mexico Litigation. The parties have reached a settlement in principle. * Nassau County, New York Litigation. On April 11, 2013, the court granted plaintiff's motion for class certification. The online travel company defendants have appealed both the court's certification order and its prior order denying their motion to dismiss. The Defendants sought a stay of proceedings in the trial court pending resolution of their appeals to the Appellate Division of the Supreme Court of the State of New York, Second Judicial Department. The Appellate Division denied that request on June 3, 2013. The Defendants' appeal remains pending. * Branson, Missouri Litigation. After the Missouri Court of Appeals denied the city's Motion for Rehearing of its petition for review, the city filed an application for transfer to the Missouri Supreme Court. On April 30, 2013, the Missouri Supreme Court denied the city's application for transfer to the Missouri Supreme Court. * Village of Rosemont, Illinois Litigation. The parties have reached a settlement in principle. * Pine Bluff, Arkansas Litigation. On March 8, 2013, the defendants filed a notice of appeal from the trial court's decision to grant class certification. That appeal remains pending. * Leon County, Florida et al. Litigation. The plaintiff counties have petitioned the Florida Supreme Court for review of the court of appeals decision that affirmed the trial court decision that online travel companies are not liable for hotel occupancy taxes. On April 16, 2013, the court of appeals certified the issue presented in the lawsuit to the Florida Supreme Court for consideration. The Florida Supreme Court has not yet informed the parties whether it will consider the case. * Baltimore County, Maryland Litigation. The parties entered into a settlement agreement in May 2013 and the case was dismissed on June 7, 2013. * McAllister, Arkansas Litigation. On May 22, 2013, the court granted the online travel companies' motion for reconsideration of the court's February 6, 2012 denial of their motion to dismiss or, in the alternative, for judgment on the pleadings and dismissal of the lawsuit. On June 19, 2013, the plaintiff filed a notice of appeal to the Arkansas Supreme Court. That appeal remains pending. * District of Columbia Litigation. On May 14, 2013, the District of Columbia filed a motion for partial summary judgment on damages. That motion remains pending. * City of Fargo, North Dakota Litigation. On July 1, 2013, the online travel company defendants filed a motion to dismiss the City of Fargo's complaint alleging that online travel companies are liable for hotel occupancy taxes. * City of Warrenville, Illinois Litigation. On April 5, 2013, a number of Illinois municipalities filed a putative class action in Illinois federal court against a number of online travel companies, including Expedia, Hotels.com and Hotwire. On July 8, 2013, the plaintiff municipalities voluntarily dismissed their federal court lawsuit and filed a similar putative class action lawsuit in Illinois state court, City of Bedford Park, et al. v. Expedia, Inc., et al. (Circuit Court of Cook County, Illinois, Chancery Division). In addition, a new case has been filed. On July 15, 2013, the Department of Revenue, Finance and Administration Cabinet, Commonwealth of Kentucky, filed a lawsuit in Kentucky state court against a number of online travel companies, including Expedia, Hotels.com and Hotwire, Department of Revenue, Finance and Administration Cabinet, Commonwealth of Kentucky, v. Expedia, Inc. et al., Case No. 13-CI-912 (Franklin Circuit Court, Commonwealth of Kentucky). The complaint alleges claims for declaratory judgment, injunctive relief, violations of state sales tax laws, breach of fiduciary duty requiring an accounting, conversion, assumpsit for money had and received, imposition of a constructive trust, damages and punitive damages. Notices of Audit or Tax Assessments At various times, the Company has also received notices of audit, or tax assessments from municipalities and other taxing jurisdictions concerning the Company's possible obligations with respect to state and local hotel occupancy or related taxes. The Company believes that the claims against it lack merit and will continue to defend vigorously against them. Actions Filed by Expedia Recent developments include: * State of North Carolina Litigation. On May 28, 2013, the court denied in part and granted in part the defendants State of North Carolina and Durham County's motions to dismiss the online travel companies claims; specifically, the court denied the motion to dismiss as to the online travel company plaintiffs' state law claims but granted the motion as to plaintiffs' federal claims. The Plaintiffs filed a motion to reconsider the court's dismissal of their federal claims or, in the alternative, to certify for immediate appeal. On June 21, 2013, the court denied the online travel companies' motion to reconsider but granted their motion to certify for immediate appeal to the North Carolina Court of Appeals. * Hawaii Tax Court Litigation (Transient Accommodations Tax). The state's previously filed appeal of the tax court decision that online travel companies do not owe transient accommodation taxes was dismissed by the Hawaii Court of Appeals as premature on June 7, 2013. On May 20, 2013, the state issued final assessments against the Expedia subsidiaries, for transient accommodations tax that the state claims are due for the year 2012. * City of Portland, Oregon Litigation. After the court granted their motion for leave to amend, the city and county filed their amended answer, affirmative defenses and counterclaims on June 11, 2013. The court has set October 14, 2013, as trial date for the case. * Denver, Colorado Litigation. Both the city and county of Denver and the online travel companies have appealed from the trial court's March 12, 2013 decision. These appeals remain pending. * State of Wyoming Litigation. On April 23, 2013, the Wyoming Supreme Court accepted review of the online travel companies' appeal from the February 28, 2013 ruling of the Wyoming Board of Equalization that the online travel companies are liable for sales tax on their online services to the State of Wyoming. Expedia, Inc. -- http://www.Expedia.com/-- is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. The Company was incorporated in Delaware and is headquartered in Bellevue, Washington. EXPEDIA INC: Seeks Dismissal of Suit Over Hotel Booking Practices ----------------------------------------------------------------- Expedia, Inc. and other defendants seek the dismissal of a consolidated class action lawsuit over hotel booking practices, according to the Company's July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On July 31, 2012, the United Kingdom Office of Fair Trading ("OFT") issued a Statement of Objections alleging that Expedia, Booking.com B.V. and InterContinental Hotels Group PLC ("IHG") have infringed European Union and United Kingdom competition law in relation to the online supply of hotel room accommodations. The Statement of Objections alleges that Expedia and Booking.com entered into separate agreements with IHG that restricted each online travel company's ability to discount the price of IHG hotel rooms. The OFT limited its investigation to a small number of companies, but has stated that the investigation is likely to have wider implications for the industry within the United Kingdom. The Statement of Objections does not constitute a finding of infringement and all parties have the opportunity to respond. If the OFT maintains its objections after the companies' responses, the OFT can issue a final decision. In such a case a final decision would be issued at the earliest in 2014. An appeal of an adverse OFT decision is to the English courts but may involve a reference on matters of European Union law to the European Court of Justice. The Company is unable at this time to predict the outcome of the OFT proceeding and any appeal. In addition, a number of competition authorities in other European countries have initiated investigations in relation to certain contractual arrangements between hotels and online travel companies, including Expedia. These investigations differ in relation to the parties involved and the precise nature of the concerns. Since August 20, 2012, thirty-four putative class action lawsuits, which refer to the OFT's Statement of Objections, have been initiated in the United States by consumer plaintiffs alleging claims against the online travel companies, including Expedia, and several major hotel chains for alleged resale price maintenance for online hotel room reservations, including but not limited to violation of the Sherman Act, state antitrust laws, state consumer protection statutes and common law tort claims, such as unjust enrichment. The cases have been consolidated and transferred to Judge Boyle in the United States District Court for the Northern District of Texas. On May 1, 2013, the plaintiffs filed their consolidated amended complaint. On July 1, 2013, the defendants filed motions to dismiss that complaint. Expedia, Inc. -- http://www.Expedia.com/-- is an online travel company, empowering business and leisure travelers with the tools and information they need to efficiently research, plan, book and experience travel. The Company was incorporated in Delaware and is headquartered in Bellevue, Washington. FANNIE MAE: Bid to Alter Judgment in "Vadnais" Case Denied ---------------------------------------------------------- District Judge David S. Doty denied motions to alter or amend judgment and to file a second amended complaint in the case captioned Ronald A. Vadnais, as Treasurer of Swift County, Minnesota, Individually and on behalf of all others similarly situated and Swift County, Plaintiff, v. Federal National Mortgage, also known as Fannie Mae, and Federal Home Loan Mortgage Corporation, also known as Freddie Mac, Defendants. Federal Housing Finance Agency, in its Capacity as Conservator of Fannie Mae and Freddie Mac, Intervenor, CIVIL NO. 12-1598 (DSD/TNL), (D. Minn.). Mr. Vadnais filed his first amended class-action complaint in October 2012, seeking a declaration that defendant Federal National Mortgage Association, defendant Federal Home Loan Mortgage Corporation and intervenor Federal Housing Finance Agency (the Enterprises) violated Minnesota Statutes by failing to pay deed transfer taxes when conveying property in the state of Minnesota. He also alleged a claim for unjust enrichment. On November 30, 2012, the court held oral argument on the Enterprises' motion to dismiss. Subsequent to oral argument, with the motion to dismiss under advisement, Vadnais filed (1) a motion for class certification, (2) a motion for partial summary judgment and (3) a request to stay consideration of the motion to dismiss pending briefing of the motion for partial summary judgment. On March 27, 2013, the court granted the Enterprises' motion to dismiss and declined to address Mr. Vandais's post-hearing motions. In response, on April 4, 2013, Mr. Vadnais filed a motion to alter or amend the judgment under Rule 59(e) of the Federal Rules of Civil Procedure and a motion to file a second amended complaint. According to Judge Doty, Mr. Vadnais did not seek leave to file a second amended complaint until after entry of judgment. The court is uncertain as to whether Mr. Vadnais raised the constitutional claims prior to dismissal and if his motion is merely a post- dismissal attempt to change the theory of the case, he says. "[Mr.] Vadnais's constitutional claims are without merit, and amendment would be futile. Therefore, the motion for leave to file a second amended complaint is denied," Judge Doty concludes. A copy of the District Court's July 29, 2013 Order is available at http://is.gd/yVexmEfrom Leagle.com. John C. Davis, Esq. -- john@johndavislaw.net -- and Law Office of John C. Davis, Tallahassee, FL, counsel for plaintiff. Michael A.F. Johnson, Esq. -- Michael.Johnson@aporter.com -- and Arnold & Porter, LLP, Washington, D.C., counsel for defendants. FISHER COMMUNICATIONS: Signs MOU to Settle Merger-Related Suit -------------------------------------------------------------- Fisher Communications, Inc. entered into a memorandum of understanding to settle a class action lawsuit arising from its proposed merger with Sinclair Broadcast Group, Inc., according to the Company's July 26, 2013, Form 8-K filing with the U.S. Securities and Exchange Commission. Fisher Communications, Inc. has made supplemental disclosures to the definitive proxy statement on Schedule 14A (the "Definitive Proxy Statement"), filed by Fisher with the SEC on June 24, 2013, in connection with the proposed settlement of Halberstam v. Fisher Communications, Inc., et al., Case No. 13-2-17171 SEA pending in King County Superior Court in the State of Washington. The parties have entered into a memorandum of understanding to settle the lawsuit pending in King County Superior Court in the State of Washington. Pursuant to the proposed settlement, Fisher has agreed to provide additional information. Litigation Update As previously disclosed beginning on pages 7 and 67 of the Definitive Proxy Statement, in connection with the Merger, a purported class action lawsuit was filed on April 17, 2013, against Fisher and the Fisher Board in King County Superior Court in the State of Washington (the "Court"), docketed as Halberstam v. Fisher Communications, Inc., et al., Case No. 13-2-17171-6 SEA (the "Litigation"). An amended complaint was filed on April 23, 2013, and a second amended complaint was filed on June 3, 2013. On July 25, 2013, the parties to the Litigation entered into a memorandum of understanding (the "MOU") which sets forth the parties' agreement in principle for settlement. After the parties enter into a definitive stipulation of settlement, the proposed settlement will be subject to Court approval. If approved by the Court, it is anticipated that the settlement will result in a release of the defendants from all claims that were or could have been brought challenging any aspect of or otherwise relating to the Merger, the Merger Agreement, or the disclosures made in connection therewith, and that the Litigation will be dismissed with prejudice. Pursuant to the terms of the MOU, Fisher has agreed to make available additional information to its shareholders. There can be no assurance that the parties will ultimately enter into a stipulation of settlement or that the Court will approve the settlement, even if the parties were to enter into such stipulation. In such event, the proposed settlement as contemplated by the MOU may be terminated. The settlement will not affect, among other things, the consideration to be paid to the shareholders of Fisher in connection with the Merger. Fisher and the other defendants have vigorously denied, and continue to vigorously deny, any wrongdoing or liability with respect to the facts and claims asserted, or which could have been asserted, in the Litigation. Fisher and the other defendants deny that they have committed any violations of law or breach of fiduciary duty, that they have acted improperly in any way, or that they have any liability or owe any damages of any kind to the plaintiff or to the purported class, and specifically deny that any further supplemental disclosure is required under any applicable rule, statute, regulation or law or that the Fisher Board failed to maximize shareholder value by entering into the Merger Agreement with Sinclair Broadcast Group, Inc. ("Sinclair"). The settlement contemplated by the MOU is not, and should not be construed as, an admission of wrongdoing or liability by any defendant. However, among other reasons, to avoid the risk of delaying the Merger, and to provide additional information to the shareholders of Fisher at a time and in a manner that would not cause any delay of the Merger, the defendants agreed to the settlement. The parties considered it desirable that the Litigation be settled to avoid the substantial burden, expense, risk, inconvenience and distraction of continued litigation and to fully and finally resolve the Litigation. A special meeting was set to be held on August 6, 2013, at 10:00 a.m., Pacific Time, at Fisher Plaza, 140 4th Avenue North, 5th Floor Studios, in Seattle, Washington 98109, for the purpose of considering and voting upon, among other things, the Merger Agreement. The Fisher Board unanimously determined that the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger, are advisable, fair to and in the best interests of Fisher and its shareholders and recommends that the shareholders of Fisher vote "FOR" the proposal to approve the Merger Agreement. GRUPO AVAL: Defends Suits Over Pension and Severance Funds ---------------------------------------------------------- Grupo Aval Acciones Y Valores S.A., its banking subsidiaries, Porvenir and Corficolombiana are also party to collective or class actions ("acciones populares" or "acciones de grupo," respectively). Collective actions are court actions where an individual seeks to protect collective rights and prevent contingent damages, obtain injunctions and damages caused by an infringement of collective rights of which the following are the most significant. All pension and severance fund administrators in Colombia, including Porvenir and Horizonte, are subject to at least two class actions in which certain individuals are alleging that the pension and severance funds administrators have caused damages to their customers by (1) paying returns earned by the severance and pension funds below the minimum profitability certified by the Superintendency of Finance, and (2) making payments to its customers -- under the scheduled retirement system -- below the established standards. Additionally, Porvenir, Horizonte and certain other pension and severance funds are subject to a constitutional action relating to charging commissions above the legally established limits for contributions to mandatory pension funds. These constitutional actions are seeking the payment of the alleged damages caused to fund managers' customers. No provisions have been established in connection with these three constitutional actions because the amount is unquantifiable, and the Company considers the probability of loss to be remote. No further updates were reported in the Company's July 26, 2013, Form F-1/A filing with the U.S. Securities and Exchange Commission. Grupo Aval Acciones y Valores S.A. -- http://www.grupoaval.com/-- is an issuer in Colombia of securities registered with the National Registry of Shares and Issuers (Registro Nacional de Valores y Emisores). Grupo Aval, which is headquartered in Bogota D.C., is a not a financial institution and is not supervised or regulated as a financial institution in Colombia. JAGUAR: Recalls 183 XK Model Cars in Canada ------------------------------------------- Starting date: August 2, 2013 Type of communication: Recall Subcategory: Car Notification type: Compliance Mfr System: Electrical Units affected: 183 Source of recall: Transport Canada Identification number: 2013268 TC ID number: 2013268 Manufacturer recall number: J030 Affected Products: Make Model Model year(s) affected ---- ----- ---------------------- JAGUAR XK 2011, 2012, 2013, 2014 Certain vehicles equipped with a convertible roof fail to conform to Canada Motor Vehicle Safety Standard 118 Power-Operated Window, Partition and Roof Panel Systems. The overhead switch (which operates the convertible roof and the power windows) does not operate in the manner prescribed by the Standard. This could result in inadvertent power window activation, which could cause injury if a body part becomes trapped by a closing window. Dealers will replace the overhead roof console assembly with an updated version. JPMORGAN CHASE: Faces Aluminum Antitrust Class Action ----------------------------------------------------- Andrew Harris and Margaret Cronin Fisk, writing for Bloomberg News, report that JPMorgan Chase & Co., the biggest U.S. bank, was sued with Goldman Sachs Group Inc. and Glencore Xstrata Plc over claims they restrained aluminum supplies and drove up prices. The complaint was filed by a Jacksonville, Florida, direct purchaser, Master Screens Inc., and by individual plaintiff Daniel Price Bart of Tallahassee, who is described in the filing as a "purchaser of beverages sold in aluminum cans." The banks and Glencore are accused in the complaint filed on Aug. 7 in federal court in Tallahassee of racketeering and conspiring with the London Metal Exchange, hoarding aluminum in Detroit-area warehouses and violating federal antitrust laws. Goldman Sachs was first sued over similar claims by a Michigan company on Aug. 1. "By inserting itself into a healthy industry producing widely needed commodities, severely degrading functionality and widely distributing costs while itself benefiting, Goldman Sachs and JPMorgan couldn't fit a more archetypal description of a parasite on the markets," according to the Florida complaint. "There are no queues at our warehouses and we believe this suit has no merit," Brian Marchiony, a spokesman for New York-based JPMorgan Chase, said in an e-mail. "We believe this suit is without merit and we intend to vigorously contest it," Michael DuVally, a spokesman for New York-based Goldman Sachs, said in an e-mail. "We also note that aluminum prices are down 40 percent from their peak in 2006." Warehousing 'Giant' More than 1 million tons of aluminum are stored in the Detroit warehouses, many of which are owned by Goldman Sachs, which charges rent for the storage, according to the complaint, while London Metal Exchange load-out rules curtail how much of the metal leaves. JPMorgan-owned Henry Bath & Son Ltd., acquired in 2010, is described in the complaint as a "metal warehousing giant." The Florida plaintiffs are seeking class action, or group, status, to represent other aluminum buyers and consumers, as well as compensatory damages. Charles Watenphul, a spokesman for Baar, Switzerland-based commodities group Glencore, declined to comment. Mr. DuVally said the complaint filed against Goldman Sachs in Detroit was without merit. A third lawsuit, naming as defendants Goldman Sachs and its warehouse unit, Metro International Trade Services LLC, as defendants, was filed on Aug. 7 in federal court in New Orleans. Plaintiff River Parish Contractors Inc. of Reserve, Louisiana, also alleges the Goldman Sachs entities inflated aluminum prices and restrained supplies in violation of U.S. antitrust laws. Neither London Metal Exchange nor JPMorgan are named as defendants. The Florida case is Master Screens Inc. v. Goldman Sachs Group Inc., 13-cv-00431, U.S. District Court, Northern District of Florida (Tallahassee). The Michigan case is Superior Extrusion Inc. v. Goldman Sachs Group Inc., 13-cv-13315, U.S. District Court, Eastern District of Michigan (Detroit). The Louisiana case is River Parish Contractors Inc. v. Goldman Sachs Group Inc., 13-cv-05267, U.S. District Court, Eastern District of Louisiana (New Orleans). LOAD SYSTEMS: Recalls Wind Speed Sensors Due to Injury Risk ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Load Systems International, of Quebec, Canada, announced a voluntary recall of about 100 LSI Wind Speed Sensors. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The sensor can fail to display an accurate data reading and cause crane operators and other users to incorrectly gauge wind conditions, posing a risk of injury from impact to the consumer. There were no incidents that were reported. The recall involves LSI model GS025 wind speed sensors with serial numbers 100015 and 100412. Model and serial numbers can be found on the underside of the product's base. The charcoal-grey colored sensor has "LSI" printed on one side and three windspeed cups on the top of the product. The 7 inch high sensors are often used by crane operators to gauge wind conditions when lifting and moving items. Pictures of the recalled products are available at: http://is.gd/QEjzDG The recalled products were manufactured in Canada and sold at LSI distributors nationwide from March 2013 to June 2013 for about $400. Consumers should stop using the wind speed sensors and contact LSI for instructions on returning the recall sensor for a replacement unit. LSI is contacting known customers directly. LOCKHEED MARTIN: Accord in Suit by Retirement System Now Approved ----------------------------------------------------------------- Lockheed Martin Corporation previously disclosed an agreement in principle to settle, without material effect on the Corporation's consolidated financial statements, the class action lawsuit filed by the City of Pontiac General Employees' Retirement System. The U.S. District Court for the Southern District of New York had granted preliminary approval of the settlement. On July 23, 2013, the Court granted final approval of the settlement, 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. MAPLE LEAF: Recalls Schneider Foods Brand Chicken Wings ------------------------------------------------------- Starting date: August 3, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Mustard Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Maple Leaf Foods Inc. Distribution: Alberta, New Brunswick, Nova Scotia, Ontario, Quebec Extent of the product distribution: Hotel/ Restaurant/ Institutional CFIA reference number: 8213 Affected products: Brand name Common name Size Code(s) on product ---------- ----------- ---- ----------------- Schneider Foods #2 Oven Roasted Fully 4 kg. All codes where Cooked Seasoned Glazed mustard is not Cut up Chicken Wings declared in the Hot Barbecue list of ingredients Product #58734 Schneider Foods Oven Roasted Seasoned 4 kg All codes where Glazed Cut up mustard is not Chicken Wings declared in the Hot Barbecue list of ingredients Product #57630 MASS MUTUAL: "Boys" Suit Transferred to N.J. District Court ----------------------------------------------------------- Chief District Judge Thomas A. Varlan granted a motion for change of venue in JOHN C. BOYS, Plaintiff, v. MASS MUTUAL LIFE INSURANCE COMPANY and MML BAY STATE LIFE INSURANCE COMPANY, Defendants, NO. 2:12-CV-445, (E.D. Tenn.). John C. Boys filed the complaint against defendants Massachusetts Mutual Life Insurance Company and its affiliate, MML Bay State Life Insurance Company on November 9, 2012, requesting compensatory and punitive damages for alleged misrepresentations, negligent underwriting, and application alterations in connection with life insurance policies insuring the lives of plaintiff's sons. On February 2, 2005, the District Court of New Jersey approved a consolidated nationwide class action settlement between MassMutual and a class of individuals who had purchased life insurances policies from MassMutual between January 1, 1983, and December 31, 2003. Varacallo v. Mass. Mut. Life Ins. Co., 226 F.R.D. 207 (D.N.J. 2005). MassMutual filed a consolidated Motion to Dismiss, or, in the Alternative, for Summary Judgment, in addition to a Motion to Transfer Venue. MassMutual argued that the plaintiff is a class member subject to the Varacallo settlement agreement and final order, and that, therefore, the plaintiff's claims are barred by the terms of that settlement's release provision, or, alternatively, that plaintiff's claims are time-barred. MassMutual also urged that the court that supervised the Varacallo action and approved the settlement agreement is uniquely equipped to determine whether these potential bars apply and, further, that the district court for the District of New Jersey expressly retained jurisdiction over the action to handle such determinations. Because the Court agrees with this latter contention, it is unnecessary to reach the merits of MassMutual's motion to dismiss or for summary judgment, says Judge Varlan. Accordingly, MassMutual's Motion to Transfer Venue is granted, and the case will be transferred in its entirety to the United States District Court for the District of New Jersey, he concluded. A copy of the District Court's July 24, 2013 Memorandum Opinion is available at http://is.gd/lXhck8from Leagle.com. MASS MUTUAL LIFE INSURANCE COMPANY, Defendant, represented by JULIE E. RAVIS -- jera@stevenslee.com -- at STEVENS & LEE. MML BAY STATE LIFE INSURANCE COMPANY, Defendant, represented by JULIE E. RAVIS, STEVENS & LEE. MCDONALD'S CORP: Disputes Class Action Over Debit Payroll Cards --------------------------------------------------------------- Bob Kalinowski, writing for The Times-Tribune, reports that the class-action lawsuit against a local McDonald's franchise for paying employees with debit cards has no merit because the pay method is legal and workers agreed to it when they were hired, attorneys for the company argue. They also claim the lead plaintiff has no standing to bring the suit because she never activated the card or incurred any fees. Attorneys for Albert and Carol Mueller, whose company owns 16 regional McDonald's restaurants, contend the payroll cards "are the functional equivalent of cash or checks" and that employees "consented to the conduct about which they complain." The company recently filed its response to a class-action suit initiated by attorneys for Natalie Gunshannon, a 27-year-old from Dallas Twp. who briefly worked at the Shavertown McDonald's early this year. Her suit challenged the company's controversial practice of only paying employees with debit cards, which she said illegally burdened employees with fees for transactions. After the lawsuit was filed, the policy generated negative publicity around the country and prompted an investigation by federal authorities. The company soon announced it would start giving employees the choice of being paid by check, direct deposit or payroll card. The company claims Ms. Gunshannon does not have standing to bring the suit because she never was actually paid with a debit card and thus never incurred any fee. After Ms. Gunshannon was hired in April, managers explained the payroll card system and told her multiple times she "could withdraw the entire pay amount without incurring any fees at the bank across the street from the Shavertown restaurant," the company's lawyers said. Ms. Gunshannon "voiced no concerns" about the system and then filled out the application for the JP Morgan Chase payroll card, the response says. Like all new employees, Ms. Gunshannon was issued a check on May 10, her first pay day with the company. Soon after, she was issued a payroll card, but never activated the card, the company said. Ms. Gunshannon, who was paid $7.45 an hour, quit on May 14. The company never deposited any funds on the card, and later sent Ms. Gunshannon a check for $187, according to the company's response. Since funds were never placed on the card, Ms. Gunshannon did not incur any fees associated with the card and doesn't have standing to sue, the company claims. Ms. Gunshannon did not cash the $187 check sent in May and the company sent her another check a few days after she filed suit on June 13, the company said. She cashed the check at some point in July, the company said. "Ms. Gunshannon received all wages she earned in the form of a check, and therefore, she could not have incurred fees through the card," the company said in court papers. Other employees should not be able to sue either because they were not "required to incur fees" associated with the debit cards. "All crew members paid via the payroll card could avoid paying fees or costs when accessing their wages simply by withdrawing their wages from a local bank," the company said. West Pittston attorney Mike Cefalo, who represents Ms. Gunshannon and a host of other current and former McDonald's employees, has filed responses of his own in recent days. Mr. Cefalo said Ms. Gunshannon was never given specifics about using the debit card upon being hired and managers never told her she could withdraw her money for free. "Once Ms. Gunshannon discovered that the J.P. Morgan Chase payroll card was loaded with fees, she voiced her concern about this practice and requested direct deposit. Her requested was outright refused," Mr. Cefalo wrote. The J.P. Morgan Chase payroll card carries fees for nearly every type of transaction, according to Mr. Cefalo's lawsuit, including a $1.50 charge for ATM withdrawals, $1 to check the balance, 75 cents per online bill payment and $10 per month if the card is left inactive for more than three months. Ms. Gunshannon never activated the card because she objected to the company's "mandate" she be paid by a card "loaded with fees," her attorney, Mike Cefalo, said. The suit seeks an unspecified amount of monetary damages on behalf of employees and asks a judge to award punitive damages against the company. MEDTRONIC INC: Aug. 26 Class Action Lead Plaintiff Deadline Set --------------------------------------------------------------- Levi & Korsinsky on Aug. 6 disclosed that a class action lawsuit has been commenced in the United States District Court for the District of Minnesota on behalf of investors who purchased Medtronic, Inc. stock between December 8, 2010 and August 3, 2011. The complaint alleges that defendants violated federal securities laws by issuing materially false and misleading statements concerning the use of the Company's INFUSE Bone Graft ("Infuse") product for the reduction of complications and pain associated with degenerative disc disease. On June 23, 2011, Medtronic issued a press release acknowledging that the U.S. Senate had requested information regarding Infuse. Then on June 28, 2011, an issue of The Spine Journal identified conflicts of interest concerning the researchers who had performed studies on Infuse. On August 3, 2011, Medtronic announced it would release Infuse data to the public and agreed to pay $2.5 million to Yale University so that researchers might conduct a review of previous studies. According to the complaint, the true facts, which defendants concealed from the investing public during the class period, included that the Company had engaged in a scheme with certain researchers to downplay the risks and side effects associated with Infuse and that once those risks were fully appreciated by surgeons, use of the product would drop significantly. If you suffered a loss in Medtronic you have until August 26, 2013to request that the Court appoint you as lead plaintiff. Your ability to share in any recovery doesn't require that you serve as a lead plaintiff. To obtain additional information, contact Joseph E. Levi, Esq. either via e-mail at jlevi@zlk.com or by telephone at (877) 363-5972, or visit http://zlk.9nl.com/medtronic-mdt/ Levi & Korsinsky is a national firm with offices in New York, New Jersey, and Washington D.C. The firm has extensive expertise in prosecuting securities litigation involving financial fraud, representing investors throughout the nation in securities and shareholder lawsuits. CONTACT: Levi & Korsinsky, LLP Joseph Levi, Esq. Eduard Korsinsky, Esq. 30 Broad Street - 24th Floor New York, NY 10004 Tel: (212) 363-7500 Toll Free: (877) 363-5972 Fax: (866) 367-6510 Web site: http://www.zlk.com MITCHELL STAVE: Patient Sustained Permanent Injuries, Suit Says --------------------------------------------------------------- Richard Wolfson v. Mitchell L. Stave D.M.D., John Doe 1-10 (a class of fictitiously named defendants), Case No. L-005934-13 (N.J. Super. Ct., July 31, 2013), alleges that the Plaintiffs did not use the care and skill ordinarily used by dentists, and did treat the Plaintiff in a negligent, reckless and careless manner. The Plaintiff contends that because the Defendants did not use applicable standard of care, he sustained severe, painful and permanent injuries and harm to his person. He adds that was obliged to expend large sums of money for medical care and attention and was caused to lose large sums of money for wages he would have earned but for his injuries. Richard Wolfson is a resident of Garfield, New Jersey. Mitchell L. Stave, D.M.D., and the Doe Defendants were and still are dentists licensed to practice as provided by the laws of the state of New Jersey, with offices located at 374 Harrison Avenue, in Lodi, New Jersey. The Plaintiff is represented by: Abraham N. Milgraum, Esq. BLUME GOLDFADEN BERKOWITZ DONNELLY FRIED & FORTE One Main Street Chatham, NJ 07928-0924 Telephone: (973) 635-5400 E-mail: amilgrau@njatty.com MOD-PAC CORP: Four Merger-Related Class Suits Consolidated ---------------------------------------------------------- The four merger-related class action lawsuits have consolidated, according to MOD-PAC Corp.'s July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 29, 2013 On October 29, 2012, the Board of Directors received a non-binding proposal from Messrs. Kevin T. Keane and Daniel G. Keane to acquire all of the Company's outstanding Common Stock and Class B Stock that they do not currently directly or indirectly own for $7.20 per share in cash (the "Proposal"). In their letter dated October 26, 2012 outlining the Proposal, Messrs. Kevin T. Keane and Daniel G. Keane indicated that they were unwilling to consider any transaction other than one in which they would be the acquirer. The Board of Directors established a Special Committee of independent Directors (the "Special Committee"), comprised of Messrs. Robert J. McKenna, William G. Gisel and Howard Zemsky, to consider the Proposal, to negotiate on behalf of the Company and, if it deemed appropriate, to solicit and consider any alternative transactions. On April 11, 2013, the Company announced that it had entered into a definitive merger agreement (the "Merger Agreement") under which a group led by Messrs. Kevin T. Keane and Daniel G. Keane (the "Buyer Group"), the beneficial holders of approximately 18.7% in the aggregate of the Company's outstanding Common Stock and approximately 51.9% in the aggregate of the Company's outstanding Class B Stock (representing approximately 41.0% of the total voting power of the Company), will acquire the Company through Rosalia Capital LLC, an entity controlled by the Buyer Group that was formed for the purposes of the acquisition. Under the Merger Agreement, the Company's shareholders, excluding the Buyer Group and holders of dissenting shares of the Company's Class B stock, will receive $8.40 per share in cash upon completion of the merger transaction. Completion of the transaction is subject to certain closing conditions, including receipt of shareholder approval and other customary conditions. The Merger Agreement contains a non- waiveable condition that an affirmative vote of a majority of the votes cast at such meeting, other than votes cast in respect of those issued and outstanding shares of the Company's Common Stock or Class B Stock beneficially owned by the Buyer Group, adopt the Merger Agreement and approve the merger transaction. In addition, M&T Bank has entered into a binding commitment letter to provide debt financing in the event the closing conditions contained in the Merger Agreement have been met. Four putative class action complaints relating to the Proposed Transaction have been filed, and all are pending in Supreme Court, Erie County, New York: Guziec v. Gisel (Index No. 001215), Levin v. Keane (Index No. 602431), IBEW Local Union 98 Pension Fund v. Mod-Pac Corp. (Index No. 001526), and Minerva Group LP v. Keane (Index No. 800621). Counsel for the plaintiffs and defendants have agreed to consolidate these actions as the cases involve common questions of law and fact. The parties have further agreed that the complaint filed by Minerva Group will act as the operative complaint for the consolidated actions. The Company says this litigation could delay the consummation of such transactions or result in the termination of the Merger Agreement. Headquartered in Buffalo, New York, MOD-PAC Corp. -- http://www.modpac.com/-- is a designer and manufacturer of folding carton packaging employing high value added services and on demand delivery. The Company provides Custom Folding Cartons for branded and private label consumer products in the food and food service, healthcare, medical and automotive industries, while its line of Stock Packaging products is primarily offered to the retail confectionary industry. The Company also has a Personalized Print product line that offers a comprehensive line of products for consumer and corporate social occasions. NAVISTAR INT'L: Lead Plaintiff Appointed in Stockholders' Suit -------------------------------------------------------------- District Judge Samuel Der-Yeghiayan appoints Central States, Southeast and Southwest Areas Pension Fund as lead Plaintiff, and Cohen Milstein Sellers & Toll PLLC as lead counsel, in the case captioned CONSTRUCTION WORKERS PENSION TRUST FUND, et al., Plaintiffs, v. NAVISTAR INTERNATIONAL CORPORATION, et al., Defendants, NO. 13 C 2111, (N.D. Ill.). Plaintiffs in the case consist of purchasers of Navistar's common stock between November 3, 2010, and August 1, 2012, who claim to have suffered losses as a result of Defendants' alleged artificial inflation of the price of Navistar common stock. A copy of the District Court's July 30, 2013 Memorandum Opinion is available at http://is.gd/pTke37from Leagle.com. Construction Workers Pension Trust Fund -- Lake County and Vicinity, Individually and on Behalf of All Others Similarly Situated, Plaintiff, represented by James E Barz -- jbarz@rgrdlaw.com -- at Robbins Geller Rudman & Dowd LLP & Danielle S. Myers -- danim@rgrdlaw.com -- at Robbins Geller Rudman & Dowd Llp. Jacksonville Police and Fire Pension Fund, Plaintiff, represented by Matthew Thomas Heffner -- mhurst@shhllp.com -- at Susman Heffner & Hurst LLP. Navistar International Corporation, Defendant, represented by Robin M. Hulshizer -- robin.hulshizer@lw.com -- at Latham & Watkins LLP, Sean M. Berkowitz -- sean.berkowitz@lw.com -- at Latham & Watkins LLP, Eric Robert Swibel -- eric.swibel@lw.com -- at Latham & Watkins LLP & Matthew Lawrence Kutcher -- matthew.kutcher@lw.com -- at Latham & Watkins LLP. Daniel C. Ustian, Defendant, represented by Robin M. Hulshizer, Latham & Watkins LLP, Sean M. Berkowitz, Latham & Watkins LLP, Eric Robert Swibel, Latham & Watkins LLP & Matthew Lawrence Kutcher, Latham & Watkins LLP. Andrew J. Cederoth, Defendant, represented by Robin M. Hulshizer, Latham & Watkins LLP, Sean M. Berkowitz, Latham & Watkins LLP, Eric Robert Swibel, Latham & Watkins LLP & Matthew Lawrence Kutcher, Latham & Watkins LLP. Central States, Southeast and Southwest Areas Pension Fund, Movant, represented by Carol V Gilden -- cgilden@cmht.com -- at Cohen Milstein Sellers & Toll PLLC & Kenneth Mark Rehns -- krehns@cohenmilstein.com -- at Cohen Milstein Sellers & Toll Pllc. Arkansas Teacher Retirement System, Movant, represented by Michael W. Stocker, Labaton Sucharow Llp, Badge Humphries, Motley Rice LLC, Brian O O'Mara, Robbins Geller Rudman & Dowd LLP & Joshua C Littlejohn, Motley Rice LLC. Sheet Metal Workers' National Pension Fund, Movant, represented by Michael W. Stocker -- mstocker@labaton.com -- at Labaton Sucharow Llp, Badge Humphries -- bhumphries@motleyrice.com -- at Motley Rice LLC, Brian O O'Mara -- bo'mara@csgrr.com -- at Robbins Geller Rudman & Dowd LLP & Joshua C Littlejohn -- jlittlejohn@motleyrice.com -- at Motley Rice LLC. NEW YORK, NY: NYPD to Purge Stop-Frisk Database Under Settlement ---------------------------------------------------------------- John Caher, writing for The New York Journal, reports that the Bloomberg administration has agreed under a settlement announced on Aug. 7 to purge a New York City Police Department database containing personal information on individuals who were stopped by authorities, and also agreed to pay $10,000 to the lead plaintiff in a putative class action. Under the terms of the settlement, the city will within 90 days delete the names and addresses of all individuals who were stopped, questioned and/or frisked. It will also pay a settlement to the only plaintiff seeking damages, freelance journalist Daryl Khan. The other members of the class sought only injunctive relief. Christopher Dunn, associate legal director of the New York Civil Liberties Union and lead counsel in the case, said in an interview that hundreds of thousands of names of innocent individuals will be erased from the NYPD database as a result of the settlement. "The immediate practical importance is that the department was using the database to conduct criminal investigations, which meant that if you got stopped on the street and were in the database, you were a target of an investigation even if you had done absolutely nothing wrong," Mr. Dunn said. "This will end that completely." Lino v. City of New York, 106579/10, focused on two named plaintiffs, Clive Lino and Khan. Lino, who is black and claims he was stopped at least 13 times by police, alleged he was thrown against a wall in April 2009, frisked and issued a summons for spitting in public and possessing an open container. Mr. Khan, who had written about the NYPD for more than a decade, alleged he was pulled over in Brooklyn in 2009, thrown against a wall, searched and ultimately accused of riding his bicycle on a sidewalk and disorderly conduct. Although all of the charges against Messrs. Lino and Khan were dismissed, their names remained in the NYPD database, even after a change in the law forced the city to expunge much of the information in the so-called UF-250 file. Legislation signed in 2010 by Governor David Paterson barred the NYPD from retaining stop-and-frisk data when the individual questioned was let go without an arrest or summons. But the legislation did not require expunging information on cases where the target was arrested or issued a summons, even if the charge was ultimately dismissed, leaving the city with a partial investigatory tool. On behalf of Messrs. Lino and Khan and several hundred thousand other citizens, the NYCLU brought a class action arguing that the records should also be expunged. Acting Supreme Court Justice Barbara Jaffe dismissed the case for lack of standing, but she was reversed by the Appellate Division, First Department. The appeals court revived the plaintiffs' case, resulting ultimately in the settlement. "It is a relief to know that my personal information will be cleared from the stop-and-frisk database," Mr. Lino said in a statement. "It is humiliating enough to be stopped and frisked for no reason, having your name and address kept in a police database only prolongs the indignity of it." Mr. Khan said in a statement that he has never been arrested, has no criminal record and, as a freelance journalist writing about the NYPD, knows "that good police work is done in this city without a sprawling database of innocent people's information." Dunn said the fact that the city agreed to expunge the names "signals to me what we thought all along, that the database was not a useful law enforcement tool. I do not believe they would have settled if they thought otherwise." Celeste Koeleveld, executive assistant corporation counsel for public safety, said the settlement is an "outgrowth" of the 2010 legislation, which the city and NYPD had opposed. "In 2010, when that legislation was being considered, the police department did certainly say they would want to have the information in a database so it could be searched and used for investigative purposes and they felt that was a legitimate use of the information," Ms. Koeleveld said. "Over the objection of the police department and the city, the law was passed any way." Ms. Koeleveld said the law depleted the bulk of the information the NYPD was retaining in the UF-250 database. She said an incomplete databank was of comparatively little use for investigative purposes and the city opted to settle rather than continue the fight. Assistant corporation counsel Janice Casey Silverberg represented the city. She said the settlement is consistent with the 2010 law, "which made the need for the database moot." NYPD deputy commissioner Paul Browne said "there was no practical reason to continue this litigation" in light of the legislation. NORFOLK SOUTHERN: Certification of Fuel Surcharges Suit on Appeal ----------------------------------------------------------------- The defendant railroads in a suit against Norfolk Southern Corporation that was consolidated in the District of Columbia by the Judicial Panel on Multidistrict Litigation have appealed the certification of the case, according to Norfolk Southern's July 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On November 6, 2007, various antitrust class actions filed against the company and other Class I railroads in various Federal district courts regarding fuel surcharges were consolidated in the District of Columbia by the Judicial Panel on Multidistrict Litigation. On June 21, 2012, the court certified the case as a class action. The defendant railroads have appealed such certification, and a decision by the court to either reject the appeal outright or proceed with ruling on its merits is pending. The company believes the allegations in the complaints are without merit and intend to vigorously defend the cases. The company does not believe the outcome of these proceedings will have a material effect on the company's financial position, results of operations, or liquidity. A lawsuit containing similar allegations against the company and four other major railroads that was filed on March 25, 2008, in the U.S. District Court for the District of Minnesota was voluntarily dismissed by the plaintiff subject to a tolling agreement entered into in August 2008. OLAM TOMATO: Recalls Salsa After Glass Found in Some Jars --------------------------------------------------------- The Associated Press reports that the maker of salsas sold at Dollar Tree and Deals, Dollar Express and Dollar Bills stores nationwide is recalling the product after large glass pieces were found in some jars. Olam Tomato Processors Inc. announced the recall on July 23 of its Mild Chunky Salsa with best-by dates of June 2015 and October 2015, and Medium Chunky Salsa with a best-by date of July 2015. Company spokeswoman Roxana Janka says the glass pieces got into the salsa during the beginning of the manufacturing process, when some of the glass jars were damaged. The pieces were not detected by X-rays at the plant because the machines were not calibrated to detect large glass pieces. The Fresno, Calif.-based company says there have been no reports of injury. OMNICARE INC: Dismissal of Kentucky Securities Suit Under Appeal ---------------------------------------------------------------- The plaintiffs in a securities suit against Omnicare, Inc. filed a notice of appeal to the U.S. Court of Appeals for the Sixth Circuit challenging the District Court's order dismissing the case, 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 24, 2011, a class action complaint entitled Ansfield v. Omnicare, Inc., et al. was filed on behalf of a putative class of all purchasers of the Company's common stock from January 10, 2007 through August 5, 2010 against the Company and certain of its current and former officers in the U.S. District Court for the Eastern District of Kentucky, alleging violations of federal securities laws in connection with alleged false and misleading statements with respect to the Company's compliance with federal and state Medicare and Medicaid laws and regulations. On October 21, 2011, a class action complaint entitled Jacksonville Police & Fire Pension Fund v. Omnicare, Inc. et al. was filed on behalf of the same putative class of purchasers as is referenced in the Ansfield complaint, against the Company and certain of its current and former officers, in the U.S. District Court for the Eastern District of Kentucky. Plaintiffs allege substantially the same violations of federal securities law as are alleged in the Ansfield complaint. Both complaints seek unspecified money damages. The Court has appointed lead counsel and a consolidated amended complaint was filed on May 11, 2012. The Company filed a motion to dismiss on July 16, 2012. On March 27, 2013, the Court granted the Company's motion to dismiss and dismissed all claims with prejudice. On April 26, 2013 the plaintiffs filed a notice of appeal to the U.S. Court of Appeals for the Sixth Circuit appealing the District Court's order dismissing the complaint with prejudice. OMNICARE INC: Petition for Rehearing of Pension Fund Suit Denied ---------------------------------------------------------------- The petition for rehearing en banc of a U.S. Court of Appeals' decision regarding the dismissal of the suit entitled Indiana State Dist. Council of Laborers & HOD Carriers Pension & Welfare Fund v. Omnicare, Inc., et al., was denied, 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 February 2006, two substantially similar putative class action lawsuits were filed in the U.S. District Court for the Eastern District of Kentucky, and were consolidated and entitled Indiana State Dist. Council of Laborers & HOD Carriers Pension & Welfare Fund v. Omnicare, Inc., et al., No. 2:06cv26. The amended consolidated complaint was filed against Omnicare, three of its officers and two of its directors and purported to be brought on behalf of all open-market purchasers of Omnicare common stock from August 3, 2005 through July 27, 2006, as well as all purchasers who bought their shares in the Company's public offering in December 2005. The complaint contained claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 (and Rule 10b-5) and Section 11 of the Securities Act of 1933 and sought, among other things, compensatory damages and injunctive relief. Plaintiffs alleged that Omnicare (i) artificially inflated its earnings (and failed to file GAAP-compliant financial statements) by engaging in improper generic drug substitution, improper revenue recognition and overvaluation of receivables and inventories; (ii) failed to timely disclose its contractual dispute with UnitedHealth Group Inc.; (iii) failed to timely record certain special litigation reserves; and (iv) made other allegedly false and misleading statements about the Company's business, prospects and compliance with applicable laws and regulations. The defendants filed a motion to dismiss the amended complaint on March 12, 2007, and on October 12, 2007, the district court dismissed the case. On November 9, 2007, plaintiffs appealed the dismissal to the U.S. Court of Appeals for the Sixth Circuit. On October 21, 2009, the Sixth Circuit Court of Appeals generally affirmed the district court's dismissal, dismissing plaintiff's claims for violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Rule 10b-5. However, the appellate court reversed the dismissal for the claim brought for violation of Section 11 of the Securities Act of 1933, and returned the case to the district court for further proceedings. On July 14, 2011, the district court granted plaintiffs' motion to file a third amended complaint. This complaint asserts a claim under Section 11 of the Securities Act of 1933 on behalf of all purchasers of Omnicare common stock in the December 2005 public offering. The new complaint alleges that the 2005 registration statement contained false and misleading statements regarding Omnicare's policy of compliance with all applicable laws and regulations with particular emphasis on allegations of violation of the federal Anti-Kickback Statute in connection with three of Omnicare's acquisitions, Omnicare's contracts with two of its suppliers and its provision of pharmacist consultant services. On August 19, 2011, the defendants filed a motion to dismiss plaintiffs' most recent complaint and on February 13, 2012 the district court dismissed the case and struck the case from the docket. On March 12, 2012, plaintiffs filed a notice of appeal in the U.S. Court of Appeals for the Sixth Circuit. On May 23, 2013, the U.S. Court of Appeals affirmed in part and reversed and remanded in part the dismissal of Plaintiff's complaint. On June 6, 2013, the Company petitioned the Court of Appeals for a rehearing en banc. The petition for rehearing en banc was denied on July 23, 2013. OMNICOM GROUP: Shareholder Files Class Action Over Publicis Merger ------------------------------------------------------------------ MediaPost's Agency Daily reports that an Omnicom Group shareholder filed a class action to stop the proposed Publicis Omnicom merger. Is it really a merger of equals? That's a question that has dominated industry chatter about the proposed Publicis Omnicom merger since it was announced July 28. Now one Omnicom Group shareholder has answered with a resounding no and is going to court to make his case. The shareholder, Paul Ansfield, filed a class-action suit in New York State Supreme Court to stop the merger, contending that the terms are drastically unfair to owners of Omnicom stock. He alleged that the Omnicom board of directors breached its fiduciary duty by not maximizing the value of the merger to Omnicom shareholders. More suits could follow. Maryland-based securities litigation firm Brower Piven said it had launched an investigation into "possible breaches of fiduciary duty to current shareholders of Omnicom Group," as well as into other unspecified violations of state law by the company's board of directors in connection with the merger. The firm said it will explore whether shareholder value is maximized under the terms of the agreement. Omnicom, which didn't comment in response to the Brower Piven investigation did issue a response to the Ansfield suit: "Omnicom is aware of the complaint that has been filed in New York state court and we believe very strongly that the claims lack any merit whatsoever. The filing of lawsuits, like this one, shortly after the announcement of a merger or acquisition -- regardless of the merits of the transaction -- is a common occurrence." Mr. Ansfield's suit was filed against Omnicom Group, Publicis Groupe, the proposed merger entity Publicis Omnicom Group N.V., Omnicom Group CEO John Wren and the other members of the Omnicom Board of Directors. Publicis was charged with "aiding and abetting such breaches of fiduciary duty" by Omnicom's board. Publicis Groupe CEO Maurice Levy was not personally named as a defendant; nor were any members of Publicis Groupe board. "Defendants have attempted to spin the proposed transaction as a 'merger of equals' even though Omnicom stockholders are being forced to give up much more for their portion of the combined company than Publicis shareholders are giving for their portion of the combined company," the suit contends. Mr. Ansfield argued that Publicis shareholders are getting a higher stake in the combined company even though Omnicom had "far higher" revenues than Publicis in 2012 -- $14.2 billion versus $8.5 billion. He also noted that Omnicom's earnings before interest, taxes, depreciation and amortization, operating income, net income and free cash flow were all significantly higher than Publicis Groupe's in 2012. The suit contends that unless the court quashes the merger Omnicom shareholders will suffer "immediate and irreparable injury." Mr. Ansfield also cited a number of analyst reports attesting to Omnicom's robust financial performance in recent years, which has been projected to continue without the need to execute a merger, let alone one that shortchanges Omnicom shareholders. PANERA BREAD: Pays $3.7MM Part of Accord in Calif. Labor Suit ------------------------------------------------------------- Panera Bread Company paid the settlement amount of $3.7 million for a labor lawsuit in California during the 13 weeks ended June 25, 2013, 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 25, 2013. On December 9, 2009, a purported class action lawsuit was filed against Panera Bread Company and one of its subsidiaries by Nick Sotoudeh, a former employee of a subsidiary of the Company. The lawsuit was filed in the California Superior Court, County of Contra Costa. On April 22, 2011, the complaint was amended to add another former employee, Gabriela Brizuela, as a plaintiff. The complaint alleged, among other things, violations of the California Labor Code, failure to pay overtime, failure to provide meal and rest periods and termination compensation and violations of California's Business and Professions Code. The complaint sought, among other relief, class certification of the lawsuit, unspecified damages, costs and expenses, including attorneys' fees, and such other relief as the Court determines to be appropriate. On November 17, 2011, the parties entered into a Memorandum of Agreement regarding settlement of this purported class action lawsuit and the purported class action lawsuit filed by David Carter, which is described in the subsequent paragraph. Under the terms of the Memorandum of Agreement, the parties agreed to settle this matter for a maximum aggregate amount of $5.0 million for settlement payments to purported class members, plaintiff's attorneys' fees, and costs of administering the settlement. The Memorandum of Agreement contains no admission of wrongdoing. The terms and conditions of the settlement were preliminarily approved by the Court on June 8, 2012. On December 21, 2012, the Court approved the terms and conditions of the settlement and the settlement payment amounts, and on February 5, 2013, the Court approved plaintiffs' attorneys' fees and costs. The Company maintained a reserve of $3.7 million in accrued expenses in the Company's Consolidated Balance Sheet as of December 25, 2012 and paid the settlement amount of $3.7 million during the thirteen weeks ended June 25, 2013. On July 22, 2011, a purported class action lawsuit was filed against Panera Bread Company and one of its subsidiaries by David Carter, a former employee of a subsidiary of Panera Bread Company, and Nikole Benavides, a purported former employee of one of the Company's franchisees. The lawsuit was filed in the California Superior Court, County of San Bernardino. The complaint alleged, among other things, violations of the California Labor Code, failure to pay overtime, failure to provide meal and rest periods and termination compensation and violations of California's Business and Professions Code. The complaint sought, among other relief, collective and class certification of the lawsuit, unspecified damages, costs and expenses, including attorneys' fees, and such other relief as the Court determines to be appropriate. This matter, as it relates to the subsidiary, was consolidated with the lawsuit described in the immediately preceding paragraph and was resolved under the Memorandum of Agreement. PENGUIN GROUP: Wants Class Action Over Armstrong's Book Dismissed ----------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that the publishers of Lance Armstrong's autobiographical books have moved to dismiss a proposed class action asserting that they misled consumers into believing they were buying an honest narrative of the disgraced cyclist's real life. The suit was filed on January 22 on behalf of a class of thousands of California consumers after Mr. Armstrong admitted to television host Oprah Winfrey that he used performance-enhancing drugs during his seven Tour de France victories. Five Northern California residents who purchased one or both of Armstrong's books -- It's Not About the Bike: My Journey Back to Life and Every Second Counts -- sued the publishers for marketing as biographies predominantly works of "fiction." "The claim against the publishers is that at some point in time they knew or should have known that the books were lies," said plaintiff's attorney Kevin Roddy -- kroddy@wilentz.com -- a shareholder at Wilentz Goldman & Spitzer in Woodbridge, N.J. The suit, which names Mr. Armstrong as a defendant, also claims that his financier, Thomas Weisel, as team owner, and his agent and longtime attorney, William "Bill" Stapleton, perpetuated the fraud by creating and building the "Armstrong" brand over the years. All the defendants have moved to strike the complaint under California's anti-SLAPP law, which allows dismissal of "strategic lawsuits against public participation," or actions designed to chill speech. They argued that the books and advertising and marketing materials relating to them were not commercial speech and are protected under the First Amendment. They also noted that the consumers failed to identify specific misstatements upon which they relied in purchasing the books. A hearing on the motion to strike was scheduled for Aug. 8. U.S. District Judge Morrison England, chief judge of the Eastern District of California in Sacramento, has indicated that he will schedule a hearing on the dismissal motions sometime between September and December. Mr. Armstrong's attorney, Zia Modabber -- zia.modabber@kattenlaw.com -- a partner at Katten Muchin Rosenman in Los Angeles, denied the allegations. "The few paragraphs where Lance denies using performance-enhancing drugs don't turn books about his entire life into works of fiction," he said. Jonathan Herman -- herman.jonathan@dorsey.com -- a partner at Dorsey & Whitney in New York who represents Penguin Group (USA) Inc. and its affiliates, which published It's Not About the Bike, declined to comment. Stephen Contopulos, a partner at Sidley Austin in Los Angeles who represents Random House Inc. and its related divisions, which published Every Second Counts in 2003, did not return a call for comment. On July 1, Random House and Penguin created a joint venture called Penguin Random House LLC, a division of Bertelsmann A.G. Mr. Stapleton's attorney, Marc Harris -- mharris@scheperkim.com -- of Scheper Kim & Harris in Los Angeles, did not return a call for comment. In court records, he wrote: "Plaintiffs' attempts to drag Stapleton into this frivolous lawsuit are misguided and wholly unsupported." Mr. Weisel's attorney, Robert Sacks -- sacksr@sullcrom.com -- a partner at Sullivan & Cromwell in Los Angeles, declined to comment. But in court records, he called the lawsuit "ridiculous." "Against the Defendants that actually had something to do with the writing and publishing of the books that Plaintiffs complain about buying, this case is frivolous," Sacks wrote. "Against Mr. Weisel, it is a joke." The case is one of two filed in California on behalf of consumers following Mr. Armstrong's admission to doping earlier this year. A second case, filed on February 28 in federal court in Los Angeles, is a proposed nationwide consumer class action against The FRS Co., which sold sports energy products endorsed by Armstrong as official spokesman. Mr. Armstrong also is a defendant in that case. A hearing on those motions is scheduled for September 26. A separate whistleblower suit, filed in 2010 by Floyd Landis, a former team member of Armstrong's, asserts that Mr. Armstrong and others, including Messrs. Weisel and Stapleton, violated the terms of their sponsorship agreement with the U.S. Postal Service. On February 22, the U.S. Justice Department, seeking damages on behalf of the Postal Service, which sponsored Armstrong's team, joined the case, brought under the U.S. False Claims Act in federal court in the District of Columbia. A hearing on motions to dismiss that case is scheduled for November 18. In the publishing case, the proposed class also includes consumers who purchased three other Lance Armstrong books: The Lance Armstrong Performance Program: 7 Weeks to the Perfect Ride, which came out in 2000; Lance Armstrong: Images of A Champion, published in 2004; and Comeback 2.0: Up Close and Personal, released in 2009. Mr. Roddy said the case -- which asserts violations of California's various consumer protection statutes, negligent misrepresentation and fraud and deceit -- seeks at least $5 million in damages. "Plaintiffs and Class members would not have purchased the Armstrong Books and/or they would not have paid as much money for the Armstrong Books had they known the true facts concerning Armstrong's years of lies and misconduct and his admitted involvement in a sports doping scandal that has led to his recent and ignominious public exposure and fall from glory," the suit says. PINNACLE ENTERTAINMENT: Continues to Defend Consolidated Suit ------------------------------------------------------------- Pinnacle Entertainment, Inc., continues to defend itself against a consolidated acquisition-related lawsuit, according to the Company's July 26, 2013, Form 10-K/A filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2012. In December 2012, the Company entered into a definitive agreement to acquire all of the outstanding common shares of Ameristar Casinos Inc. ("Ameristar") in an all cash transaction valued at $26.50 per share representing total consideration of $2.8 billion, including assumed debt. Ameristar operates these casinos: Ameristar Casino Resort Spa St. Charles (serving the St. Louis, Missouri metropolitan area); Ameristar Casino Hotel Kansas City (serving the Kansas City metropolitan area); Ameristar Casino Hotel Council Bluffs (serving the Omaha, Nebraska metropolitan area and southwestern Iowa); Ameristar Casino Resort Spa Black Hawk (serving the Denver, Colorado metropolitan area); Ameristar Casino Hotel Vicksburg (serving Jackson, Mississippi and Monroe, Louisiana); Ameristar Casino Hotel East Chicago (serving the Chicagoland area); and Cactus Petes Resort Casino and The Horseshu Hotel and Casino in Jackpot, Nevada (serving Idaho and the Pacific Northwest). The transaction is expected to close by the end of the third quarter of 2013, subject to closing conditions and regulatory approvals. On December 24, 2012, a putative shareholder class action lawsuit related to the Company's proposed acquisition of Ameristar was filed in Nevada District Court for Clark County, captioned Joseph Grob v. Ameristar Casinos, Inc., et al. (the "Grob action"). The complaint names Ameristar and members of Ameristar's Board of Directors (the "Ameristar Defendants"); and Pinnacle Entertainment, Inc., PNK Holdings, Inc., and PNK Development 32, Inc. as defendants (the "Pinnacle Defendants"). The complaint generally alleges that the Board of Directors of Ameristar, aided and abetted by Ameristar and the Pinnacle Defendants, breached their fiduciary duties owed to Ameristar's shareholders in connection with Pinnacle's proposed acquisition of Ameristar. The action includes claims for, among other things, an injunction halting the proposed acquisition of Ameristar by Pinnacle, and an award of costs and expenses to the putative plaintiff shareholder, including attorneys' fees. Thereafter, other plaintiffs filed additional complaints in the same court making essentially the same allegations and seeking similar relief to the Grob action. On January 15, 2013, the court issued an order consolidating the actions, and any subsequently filed actions, into a single, consolidated action. The action is still in the initial stages and there has been no discovery. The Company believes that the allegations directed against it lack merit and intend to defend itself vigorously. Pinnacle Entertainment, Inc. -- http://www.pnkinc.com/-- is a Delaware corporation headquartered in Las Vegas, Nevada. Pinnacle is an owner, operator and developer of casinos and related hospitality and entertainment facilities. SAM'S CLUB: Federal Appeals Court Vacates Class Certification ------------------------------------------------------------- Charles Toutant, writing for New Jersey Law Journal, reports that a federal appeals court has vacated class certification in a suit claiming extended warranties by retailer Sam's Club were worthless. The plaintiff failed to show that the proposed class is sufficiently numerous and that class members can be easily ascertained, the U.S. Court of Appeals for the Third Circuit held in Hayes v. Wal-Mart Stores Inc., 12-2522. The Aug. 2 ruling relied on the court's decision in Marcus v. BMW of North America, 687 F.3d 583 (2012), which held that Fed. R. Civ. P. 23 requires a party show by a preponderance of the evidence that class membership can be readily determined. In the case at hand, William Hayes bought a $100 power washer, with a $5.26 service plan, and later a $350 37-inch television, with a $39.85 service plan. Both products were labeled as-is, and offered at reduced prices, at Sam's Club in Williamstown. Mr. Hayes later discovered that the TV's manual and remote control were missing. The store gave him those items but said he should not have been sold the service plan because the TV was not covered. Sam's Club service plans generally do not cover products sold as- is, unless the item is covered by a manufacturer's warranty. Mr. Hayes was offered a refund for the plan cost but declined. In January 2010, Mr. Hayes sued on behalf of all consumers who bought a service plan for an as-is product from Sam's Club in New Jersey since January 2004. He asserted violations of the Consumer Fraud Act, breach of contract and unjust enrichment. U.S. District Judge Jerome Simandle granted certification in March 2012, finding the class met the ascertainability requirement because buyers could be determined by objective criteria. He also found the class sufficiently numerous because Sam's Club records showed 3,500 transactions that included a price override, done when as-is items are sold, and purchase of a service plan. Judge Simandle reasoned that even if 5 percent of those transactions were for as-is items ineligible for service plans, the class would be sufficiently numerous. He also found that the purchase of the power washer was a proper basis for class certification but the purchase of the TV was not because the service plan was honored when the missing remote was replaced. Wal-Mart, Sam's Club's parent, was granted leave for an interlocutory appeal. It claimed Hayes failed to show that a reliable method of ascertaining class membership existed and that the class is sufficiently numerous. On appeal, Judges Anthony Scirica, Thomas Ambro and Julio Fuentes said that "where nothing in company databases shows or could show whether individuals should be included in the proposed class, the class definition fails." The Marcus plaintiffs sued BMW and Bridgestone over allegedly defective tires, but records did not indicate which cars were sold with those tires. Forcing BMW and Bridgestone to accept as true car owners' declarations that they are class members would have "serious due process implications," the Marcus court said. The Hayes panel remanded for limited fact-finding on whether a reliable way for ascertaining class membership is available. The petition for certification "will founder if the only proof of class membership is the say-so of putative class members or if ascertaining the class requires extensive or individualized fact- finding," Judge Scirica wrote for the panel. The appeals court also said that the plaintiff did not fulfill the numerosity requirement. On remand, he must show direct or circumstantial evidence so the trial court may determine whether there are enough parties to warrant class action, Judge Scirica wrote. The lawyer for Wal-Mart, John Papianou -- jpapianou@mmwr.com -- of Montgomery, McCracken, Walker & Rhoads in Philadelphia, declines to comment. Plaintiff lawyers Daniel Lapinski -- dlapinski@wilentz.com -- of Wilentz, Goldman & Spitzer in Woodbridge, and James Shah -- jshah@sfmslaw.com -- of Shepherd, Finkelman, Miller & Shah in Collingswood, did not return calls. SEI INVESTMENTS: 2nd Cir. Affirmed Dismissal of ETF-Related Suit ---------------------------------------------------------------- The U.S. Court of Appeals for the Second Circuit affirmed in July 2013 the dismissal of a class action lawsuit related to leveraged exchange traded funds, according to SEI Investments Company's July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. One of SEI's principal subsidiaries, SEI Investments Distribution Co., or SIDCO, has been named as a defendant in certain putative class action complaints (the Complaints) related to leveraged exchange traded funds (ETFs) advised by ProShares Advisors, LLC. The first complaint was filed on August 5, 2009, and the subsequent cases were all consolidated in the Southern District of New York. The Complaints are purportedly made on behalf of all persons that purchased or otherwise acquired shares in various ProShares leveraged ETFs pursuant or traceable to allegedly false and misleading registration statements, prospectuses and statements of additional information. The Complaints name as defendants ProShares Advisors, LLC; ProShares Trust; ProShares Trust II, SIDCO, and various officers and trustees to ProShares Advisors, LLC; ProShares Trust and ProShares Trust II. The Complaints allege that SIDCO was the distributor and principal underwriter for the various ProShares leveraged ETFs that were distributed to authorized participants and ultimately shareholders. The Complaints allege that the registration statements for the ProShares ETFs were materially false and misleading because they failed adequately to describe the nature and risks of the investments and claim that SIDCO is liable for these purportedly material misstatements and omissions under Section 11 of the Securities Act of 1933. On September 7, 2012, the District Court for the Southern District of New York issued an opinion dismissing with prejudice the plaintiffs' amended complaint. The Plaintiffs filed with the Second Circuit Court of Appeals a notice of appeal of the District Court's decision and on July 22, 2013, the Second Circuit Court of Appeals issued an opinion affirming the decision of the District Court dismissing the amended complaint. While the outcome of this litigation is uncertain given its early phase, SEI believes that it has valid defenses to plaintiffs' claims and intends to defend the lawsuits vigorously. Based in Oaks, Pennsylvania and founded in 1968, SEI Investments Company -- http://www.seic.com/-- is a publicly owned investment manager. The firm provides wealth management and investment advisory services to its clients through its subsidiaries. SEI INVESTMENTS: Continues to Defend Stanford-Related Class Suit ---------------------------------------------------------------- SEI Investments Company continues to defend itself and a subsidiary against class action lawsuits related to the role of its subsidiary in providing back-office services to Stanford Trust Company, according to the Company's July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. SEI has been named in six lawsuits filed in Louisiana. Five lawsuits were filed in the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. One of the five actions purports to set forth claims on behalf of a class and also names SEI Private Trust Company, or SPTC, as a defendant and, was certified as a class in December 2012. Two of the other actions also name SPTC as a defendant. All five actions name various defendants in addition to SEI, and, in all five actions, the plaintiffs purport to bring a cause of action against SEI and SPTC under the Louisiana Securities Act. The putative class action originally included a claim against SEI and SPTC for an alleged violation of the Louisiana Unfair Trade Practices Act. Two of the other five actions include claims for violations of the Louisiana Racketeering Act and possibly conspiracy. In addition, another group of plaintiffs have filed a lawsuit in the 23rd Judicial District Court for the Parish of Ascension, State of Louisiana, against SEI and SPTC and other defendants asserting claims of negligence, breach of contract, breach of fiduciary duty, violations of the uniform fiduciaries law, negligent misrepresentation, detrimental reliance, violations of the Louisiana Securities Act and Louisiana Racketeering Act and conspiracy. The underlying allegations in all the actions are purportedly related to the role of SPTC in providing back-office services to Stanford Trust Company. The petitions allege that SEI and SPTC aided and abetted or otherwise participated in the sale of "certificates of deposit" issued by Stanford International Bank. Two of the five actions filed in East Baton Rouge were removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to United States District Court for the Northern District of Texas. On August 31, 2011, the United States District Court for the Northern District of Texas issued an order and judgment that the causes of action alleged against SEI in the two removed actions were preempted by federal law and the court dismissed these cases with prejudice. The Plaintiffs appealed this ruling, and on March 19, 2012, a panel of the Court of Appeals for the Fifth Circuit reversed the decision of the United States District Court and remanded the actions for further proceedings. On July 18, 2012, SEI filed a petition for certiorari in the United States Supreme Court, seeking review of the decision by the United States Court of Appeals in the Eleventh Circuit to permit the claims against SEI to proceed. SEI believes that the trial correctly concluded that the claims against SEI were barred by the federal Securities Litigation Uniform Standards Act and is requesting that the Supreme Court reinstate that dismissal. On January 18, 2013, the Supreme Court granted the petition for certiorari. The case has not yet been scheduled for oral argument, but is likely to be heard in early fall 2013. The case filed in Ascension was also removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Texas. The schedule for responding to that complaint has not yet been established. The plaintiffs in the remaining two cases in East Baton Rouge have granted SEI and SPTC an extension to respond to the filings. SEI and SPTC filed exceptions in the class action pending in East Baton Rouge, which the Court granted in part and dismissed the claims under the Louisiana Unfair Trade Practices Act and denied in part as to the other exceptions. SEI and SPTC filed an answer to the East Baton Rouge class action, plaintiffs filed a motion for class certification; and SEI and SPTC also filed a motion for summary judgment against certain named plaintiffs which the Court stated will not be set for hearing until after the hearing on the class certification motion. The Court in the East Baton Rouge action held a hearing on class certification on September 20, 2012. By oral decision on December 5, 2012, and later entered in a judgment signed on December 17, 2012, that was subsequently amended, the Court in East Baton Rouge certified a class to be composed of persons who purchased any Stanford International Bank certificates of deposit (SIB CDs) in Louisiana between January 1, 2007, and February 13, 2009; persons who renewed any SIB CD in Louisiana between January 1, 2007, and February 13, 2009; or any person for whom the Stanford Trust Company purchased SIB CDs in Louisiana between January 1, 2007, and February 13, 2009. On January 30, 2013, SEI and SPTC filed motions for appeal from the judgments that stated SEI's and SPTC's intention to move to stay the litigation. On February 1, 2013, the plaintiffs filed a motion for Leave to File First Amended and Restated Class Action Petition in which they ask the Court to allow them the petition in this case to add additional facts that were developed during discovery and adding claims against certain of SEI's insurance carriers. On February 5, 2013, the Court granted two of the motions for appeal and the motion for leave to amend. On February 15, 2013, SEI filed a motion for new trial, or, in the alternative, for reconsideration of the Court's order allowing amendment. On February 22, 2013, SEI filed a motion to stay proceedings in view of the pending Supreme Court case. On February 28, 2013, SEI responded to the First Amended and Restated Class Action Petition by filing an exception. On March 11, 2013, the insurance carrier defendants filed a notice of removal removing the case to the Middle District of Louisiana and on March 18, 2013, the insurance carrier defendants filed answers. On March 13, 2013, SEI notified the Judicial Panel on Multidistrict Litigation (MDL) of this case as a potential tag- along action. On March 18, 2013, the insurance carrier defendants filed answers. On March 19, 2013, plaintiffs filed a motion to remand, a motion for expedited briefing schedule, expedited status conference and expedited consideration of their motion to remand, a motion for leave to file under seal and a motion for order pursuant to 28 U.S.C. Sec. 1447(b) requiring removing defendants to supplement federal court record with certified copy of state court record. These motions are now fully briefed. On March 25, 2013, SEI filed a motion that the court decline to adopt the state court's order regarding class certification, which the court dismissed without prejudice to renew upon a determination of removal jurisdiction in an April 12, 2013 order that also dismissed without prejudice a motion to dismiss for lack of jurisdiction and improper venue filed on April 9, 2013 by one of the insurers. On April 1, 2013, the Louisiana Office of Financial Institutions (OFI) filed a motion to remand and sever claims and a response to that motion by the insurers and opposition to that motion by the plaintiffs were filed on April 22, 2013. Along with the briefing in the Middle District of Louisiana, on March 13, 2013, SEI notified the Judicial Panel on Multidistrict Litigation (MDL) of this case as a potential tag-along action. On March 19, 2013, plaintiffs notified the MDL that they had filed a motion to remand and asking the panel to decline to issue a conditional transfer order. On March 29, 2013, the MDL issued a conditional transfer order (CTO). On April 18, 2013, OFI filed a motion to vacate the CTO or, in the alternative, stay any ruling to transfer the matter until after the Middle District of Louisiana rules on OFI's motion to remand and sever. The Plaintiffs filed a motion to vacate the CTO on April 19, 2013. SEI's responses to those motions were filed on May 9, 2013. On June 12, 2013, the MDL Panel issued an order notifying the parties that on July 25, 2013, it would consider, without oral argument, Plaintiffs' and OFI's motions to vacate the CTO. While the outcome of this litigation is uncertain given its early phase, SEI and SPTC believe that they have valid defenses to plaintiffs' claims and intend to defend the lawsuits vigorously. Because of the uncertainty of the make-up of the classes, the outcome of the proceeding in the United States Supreme Court, the specific theories of liability that may survive a motion for summary judgment or other dispositive motion, the lack of discovery regarding damages, causation, mitigation and other aspects that may ultimately bear upon loss, the Company is not reasonably able to provide an estimate of loss, if any, with respect to the lawsuits. Based in Oaks, Pennsylvania and founded in 1968, SEI Investments Company -- http://www.seic.com/-- is a publicly owned investment manager. The firm provides wealth management and investment advisory services to its clients through its subsidiaries. SUPERVALU INC: 8th Cir. Remands Suit by Consumer Goods Maker ------------------------------------------------------------ The 8th Circuit Court denied the Petition for Rehearing in a suit alleging violations of the Federal Racketeer Influenced and Corrupt Organizations Act against Supervalu Inc. and remanded the case to the United States District Court for the District of Minnesota, according to the company's July 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period (16 weeks) ended June 15, 2013. In September 2008, a class action complaint was filed against the Company, as well as International Outsourcing Services, LLC ("IOS"), Inmar, Inc., Carolina Manufacturer's Services, Inc., Carolina Coupon Clearing, Inc. and Carolina Services, in the United States District Court in the Eastern District of Wisconsin. The plaintiffs in the case are a consumer goods manufacturer, a grocery co-operative and a retailer marketing services company who allege on behalf of a purported class that the Company and the other defendants (i) conspired to restrict the markets for coupon processing services under the Sherman Act and (ii) were part of an illegal enterprise to defraud the plaintiffs under the Federal Racketeer Influenced and Corrupt Organizations Act. The plaintiffs seek monetary damages, attorneys' fees and injunctive relief. The Company intends to vigorously defend this lawsuit, however all proceedings have been stayed in the case pending the result of the criminal prosecution of certain former officers of IOS. In December 2008, a class action complaint was filed in the United States District Court for the Western District of Wisconsin against the Company alleging that a 2003 transaction between the Company and C&S Wholesale Grocers, Inc. ("C&S") was a conspiracy to restrain trade and allocate markets. In the 2003 transaction, the Company purchased certain assets of the Fleming Corporation as part of Fleming Corporation's bankruptcy proceedings and sold certain assets of the Company to C&S which were located in New England. Since December 2008, three other retailers have filed similar complaints in other jurisdictions. The cases have been consolidated and are proceeding in the United States District Court for the District of Minnesota. The complaints allege that the conspiracy was concealed and continued through the use of non-compete and non-solicitation agreements and the closing down of the distribution facilities that the Company and C&S purchased from each other. Plaintiffs are seeking monetary damages, injunctive relief and attorneys' fees. On July 5, 2011, the District Court granted the Company's Motion to Compel Arbitration for those plaintiffs with arbitration agreements and plaintiffs appealed. On July 16, 2012, the District Court denied plaintiffs' Motion for Class Certification and on January 11, 2013, the District Court granted the Company's Motion for Summary Judgment and dismissed the case regarding the non- arbitration plaintiffs. Plaintiffs have appealed these decisions. On February 12, 2013, the 8th Circuit reversed the District Court decision requiring plaintiffs with arbitration agreements to arbitrate and the Company filed a Petition with the 8th Circuit for an En Banc Rehearing. On June 7, 2013, the 8th Circuit denied the Petition for Rehearing and remanded the case to the District Court. SUPERVALU INC: Court Certifies Suit Over FWW Pay v. Save-A-Lot -------------------------------------------------------------- The United States District Court in the District of Connecticut granted conditional certification in favor of plaintiff on the issue of whether Save-A-Lot properly applied the fluctuating work week method of pay and denied Save-A-Lot's motion for summary judgment on the same issue, according to Supervalu Inc.'s July 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarterly period (16 weeks) ended June 15, 2013. In May 2012, Kiefer, a former Assistant Store Manager at Save-A- Lot, filed a class action against Save-A-Lot seeking to represent current and former Assistant Store Managers alleging violations of the Fair Labor Standards Act related to the fluctuating work week method of pay ("FWW") in the United States District Court in the District of Connecticut. FWW is a method of compensation whereby employees are paid a fixed salary for all hours worked during a week plus additional compensation at one-half the regular rate for overtime hours. Kiefer claims that the FWW practice is unlawful or, if lawful, that Save-A-Lot improperly applied the FWW method of pay, including in situations involving paid time off, holiday pay, and bonus payments. In March 2013, the United States District Court granted conditional certification in favor of Kiefer on the issue of whether Save-A-Lot properly applied the FWW. In May 2013, the United States District Court denied Save-A-Lot's motion for summary judgment on the same issue. This FWW practice is permissible under the Fair Labor Standards Act and other state laws, and Save-A-Lot has denied all allegations in the case and continues to vigorously defend the case. The same plaintiffs' attorneys representing Kiefer have filed two additional FWW actions against Save-A-Lot and SUPERVALU. Shortly before filing of the Kiefer lawsuit, in one of these filed by a former Assistant Store Manager (Roach) in March 2011 cases, the Superior Court for the Judicial District of Hartford at Hartford granted summary judgment in favor of Save-A-Lot determining FWW was a legal practice in Connecticut. In March 2013, another Save-A-Lot Assistant Store Manager (Pagano) filed an FWW class claim against SUPERVALU under Pennsylvania state law in the Philadelphia County Court of Common Pleas. Neither SUPERVALU nor Save-A-Lot has yet been required to respond to the lawsuit filed by Pagano, but both Save-A-Lot and SUPERVALU deny any allegations of wrongdoing. In all three cases, plaintiffs seek monetary damages and attorney's fees. SYSTEM4 LLC: Employment Lawyer Discusses Supreme Court Ruling ------------------------------------------------------------- Jack Merrill, a Massachusetts employment lawyer, writing for Working The Law, reports that following a mandate from the U.S. Supreme Court, the Massachusetts Supreme Judicial Court (SJC) has held that a contractual waiver of class action claims in an employment dispute must be enforced. The plaintiffs in the ongoing case are franchisees who claim they serve as employees of the defendants but are misclassified in order to deny them wages and benefits. They seek repayment of tens of thousands in franchise fees along with damages under the Massachusetts Wage Act, a statute that mandates the tripling of all damage awards. The plaintiffs hoped to obtain class certification, a move that would allow them to join all similarly situated franchisees in their litigation, thus threatening the defendants with multi- million dollar damages. Class action suits are intended to make litigation feasible for individuals who suffer relatively small damages but are part of large groups of people suffering from similar alleged wrongs. As part of their franchise agreements, however, the plaintiffs agreed to mandatory arbitration of all disputes on individual bases. A lower court refused to enforce the arbitration clause and class action waiver, citing Massachusetts public policy. In reversing, the SJC followed Supreme Court decision holding that class action waivers are enforceable. The SJC concluded that, unless a waiver effectively deprives a plaintiff of the ability to redress complaints, it must be enforced. "The Supreme Court in [AT & T Mobility LLC v. Concepcion] has declared that the inherent conflict between arbitration and class proceedings must be resolved in favor of arbitration, as long as a class waiver does not operate to deny a plaintiff any meaningful remedy," the SJC wrote. Because each plaintiff sought repayment of franchise fees of between $9,000 and $22,000, they could pursue their individual claims without forming a class of plaintiffs. "Although the magnitude of potential damages is not the sole criterion to be considered in determining whether a claim is remediable in individual arbitration according to the terms of the arbitration agreement, it may be the most important factor," the court wrote. The SJC case is Machado v. System4 LLC. It was decided June 12, 2013. While the decision upheld the class action waiver/arbitration clause, the court also concluded that a waiver of the mandatory tripling of damages in the Massachusetts Wage Act was void as contrary to public policy. The plaintiffs in Machado, then can obtain triple damages and payment of their legal fees by the defendants if they establish they were employees who were denied wage payments under the Act. This they must do in individual arbitration proceedings. TOYOTA MOTOR: Recalls 342,000 Vehicles Over Seat Belt Flaw ---------------------------------------------------------- Jayne O'Donnell, writing for USA TODAY, reports that Toyota said on Aug. 7 that it is voluntarily recalling about 342,000 Toyota Tacoma Access Cab vehicles from the years 2004-2011 because of a flaw in the seat belts. Screws that attach the seat belt pre- tensioner to the seat belt retractor for drivers and front passengers can become loose, which could affect the technology's ability to protect in a crash. Owners of vehicles subject to this recall will be notified by first class mail. Information is available to customers at www.toyota.com/recall and at the Toyota Customer Experience Center at 1-800-331-4331. TOYSMITH OF SUMNER: Recalls Light-Up Toy Frogs and Ducks -------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Toysmith, of Sumner, Wash., announced a voluntary recall of about 30,000 light-up toy frogs and ducks. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The metal conductor pin on the bottom of the toys can come out, posing a choking hazard. No injuries have been reported. The recall includes light-up soft plastic toy frogs and ducks. The toys light up when the sensors on the bottom of the product are touched or placed in water. The frog comes in green and the ducks come in yellow, pink and clear. The toys are approximately 2.25 inches in length and 1.5 inches in height. There is a round tag attached to the product with the UPC number 2424 5159. Pictures of the recalled products are available at: http://is.gd/f42L93 The recalled products were manufactured in China and sold exclusively at Cost Plus World Market between July 2012 and December 2012 for around $3. Consumers should immediately stop using the recalled products, put them away from children and return them to place of purchase for a full refund. UNITED STATES: Suit v. Black Farmers Class Action Lawyers Nixed --------------------------------------------------------------- According to an article posted by Zoe Tillman at The Blog of Legal Times, lawyers involved in the high-profile black farmers discrimination litigation defeated a lawsuit brought by an advocate for the farmers who claimed he was promised fees but never paid. The National Black Farmers Association and its president, John Boyd Jr., sued lawyers Andrew Marks -- amarks@coffeyburlington.com -- and James Scott Farrin -- james.farrin@farrin.com -- accusing them of refusing to pay him after repeatedly promising to do so, and of trying to claim fees for work Boyd did advocating on behalf of the farmers. The government reached a settlement with the farmers in excess of $1 billion and, earlier this summer, a federal judge awarded $90.8 million to plaintiffs lawyers. U.S. District Judge Richard Leon ruled on Aug. 6 that Mr. Boyd and the association lacked standing to sue, since he didn't have a legal interest in the settlement or fee award, and failed to state a claim. Mr. Boyd couldn't be reached for comment. His lawyer, Alexander Pires Jr. of Washington's Pires Cooley, declined to comment. Mr. Marks, who was represented by Keith Harrison -- kharrison@crowell.com -- and Michael Kuppersmith -- mkuppersmith@crowell.com -- of Crowell & Moring, said on Aug. 7 that he "was pleased that Judge Leon recognized that there were no facts to support any claim." Mr. Marks is a partner at Coffey Burlington in Miami and also runs a solo practice in Washington. Mr. Farrin, who runs the Law Offices of James Scott Farrin in North Carolina, was represented by Bradley Risinger -- brad.risinger@smithmoorelaw.com -- of Smith Moore Leatherwood in Raleigh, N.C. Mr. Risinger said on Aug. 7 that Judge Leon reached "the right decision" and said that the "real winners" were the claimants in the class action. UNITIL CORP: "Bellerman" Plaintiffs Appeal Class Cert. Denial ------------------------------------------------------------- The plaintiffs in the suit Bellerman et al. v. Fitchburg Gas and Electric Light Company have appealed to the Massachusetts Supreme Judicial Court a court ruling denying a motion to certify the case as a class action, 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 early 2009, a putative class action complaint was filed against Unitil Corporation's (the "Company") Massachusetts based utility, Fitchburg Gas and Electric Light Company (Fitchburg), in Massachusetts' Worcester Superior Court (the "Court"), (captioned Bellerman et al v. Fitchburg Gas and Electric Light Company). The Complaint seeks an unspecified amount of damages, including the cost of temporary housing and alternative fuel sources, emotional and physical pain and suffering and property damages allegedly incurred by customers in connection with the loss of electric service during the ice storm in Fitchburg's service territory in December, 2008. The Complaint, as amended, includes M.G.L. ch. 93A claims for purported unfair and deceptive trade practices related to the December 2008 ice storm. On September 4, 2009, the Court issued its order on the Company's Motion to Dismiss the Complaint, granting it in part and denying it in part. Following several years of discovery, the plaintiffs in the complaint filed a motion with the Court to certify the case as a class action. On January 7, 2013, the Court issued its decision denying plaintiffs' motion to certify the case as a class action. As a result of this decision, the lawsuit would now proceed with only the twelve named plaintiffs seeking damages; however, the plaintiffs have appealed this decision to the Massachusetts Supreme Judicial Court. The Company continues to believe the suit is without merit and will continue to defend itself vigorously. US AIRWAYS: Faces Suits Over Planned Merger With AMR Corporation ---------------------------------------------------------------- US Airways Group, as well as the members of US Airways Group's board of directors, were named as defendants in a lawsuit brought by a purported class of US Airways Group's stockholders challenging the Merger with AMR Corporation and seeking a declaration that the Merger Agreement is unenforceable, an injunction against the Merger (or rescission in the event it has been consummated), imposition of a constructive trust, an award of fees and costs, including attorneys' and experts' fees, and other relief, according to US Airways' July 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On March 1, 2013, a putative class action lawsuit captioned Plumbers & Steamfitters Local Union No. 248 Pension Fund v. US Airways Group, Inc., et al., No. CV2013-051605 was filed in the Superior Court of the State of Arizona in Maricopa County. On July 3, 2013, a Second Amended Complaint was filed in the above-referenced action, captioned Dennis Palkon, et al. v. US Airways Group, Inc., et al., No. CV2013-051605. The complaint names as defendants US Airways Group and the members of its board of directors, and alleges that the directors breached their fiduciary duties in connection with the Merger by failing to maximize the value of US Airways Group and ignoring or failing to protect against conflicts of interest, and that US Airways Group aided and abetted those breaches of fiduciary duty. The complaint seeks a declaration that the Merger Agreement is unenforceable, an injunction against the Merger, or rescission in the event it has been consummated, imposition of a constructive trust, an award of fees and costs, including attorneys' and experts' fees, and other relief. On June 20, 2013, the plaintiff in the above-referenced action moved for a temporary restraining order seeking to temporarily enjoin the Company Annual Meeting of Stockholders. On June 25, 2013, the court in the action entered an order denying the plaintiff's motion for a temporary restraining order. The Company believes this lawsuit is without merit and intends to vigorously defend against the allegations. WEST BANCORPORATION: West Bank Continues to Defend Iowa Suit ------------------------------------------------------------ On September 29, 2010, West Bank, a subsidiary of West Bancorporation, Inc., was sued in a purported class action lawsuit that, as amended, asserts that nonsufficient funds fees charged by West Bank to Iowa resident noncommercial customers on bank debit card transactions, but not checks or Automated Clearing House items, are usurious under Iowa law, rather than allowable fees, and that the sequence in which West Bank formerly posted items for payment in consumer demand accounts violated various alleged duties of good faith. As West Bank understands the current claims, plaintiffs are seeking alternative remedies that include injunctive relief, damages (including treble damages), punitive damages, refund of fees, and attorney fees. West Bank believes the lawsuit allegations are factually and legally incorrect in multiple material ways and is vigorously defending the action. The amount of potential loss, if any, cannot be reasonably estimated now because the multiple alternative claims involve different time periods and present different defenses related to potential liability, class certification, and damages. No further updates were reported in the Company's July 26, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. West Bancorporation, Inc. -- http://www.westbankiowa.com/-- is an Iowa corporation and a bank holding company. The Company, headquartered in West Des Moines, Iowa, was formed in 1984 to own West Des Moines State Bank, an Iowa chartered bank, which is now known as West Bank. ZEALANDIA HOLDING: Timeshare Owners File Class Action ----------------------------------------------------- The Finn Law Group on Aug. 7 disclosed that a class action lawsuit filed on behalf of timeshare owners at Festiva's Orlando Resort alleging that the resort's developers and managers as well as RCI, a timeshare interest exchange bank, engaged in unfair and deceptive practices and racketeering has been removed to federal court. The class action suit, Reeves, et al. v. RCI, Zealandia Holding Company Inc., et al., cause no. 13-CA-866-MF, was filed March 1 in the 9th Judicial Circuit Court of Florida, in Osceola County. On April 12, 2013, the suit was removed to the U.S. District Court for the Middle District of Florida, Orlando Division, cause no. 6:13-cv-00597. The suit alleges that, beginning in 2004, approximately 900 parties purchased timeshare interests in Celebration World Resort Owners Association, located in Kissimmee, Fla., from B.L. Vacation Ownership Inc. Between 2008 and 2011, timeshare owners were sold upgrades for a timeshare exchange program by Celebration World Resort Marketing that involved a point system administered by RCI. The owners were told that the timeshare exchange program would dramatically increase the number of RCI points they owned which could be applied to future timeshare reservations. However, the RCI points were later revoked by Zealandia, the company that purchased the resort. The complaint alleges that Zealandia admitted the RCI points program was "distorted" and "too good to be true." The amended complaint adds class representative plaintiffs and counts, including the charging of RCI and others with violations of Florida's Deceptive and Unfair Practices Act, Civil Conspiracy and Federal Racketeering Charges (RICO) 18 USC 1962(d). Michael D. Finn of Finn Law Group states, "RCI administered a program that supplied overinflated points. Those points were used by Celebration World Resort Marketing to sell timeshare upgrades. By processing, and thereby validating the issuance of these 'upgrade points,' RCI allowed the fraudulent transactions to be completed." The timeshare owners seek a refund, rescission of the upgrade sales contracts, attorneys' fees and other relief the court deems proper. The Finn Law Group, which has offices in Florida and Michigan, represents consumers in timeshare and related real estate matters. For more information, contact Michael D. Finn by calling 855-346- 6529 or michaeldfinn@finnlawgroup.com * Oyster and Clam Products Recalled in the U.S., Canada ------------------------------------------------------- Starting date: August 7, 2013 Type of communication: Recall Alert sub-type: Health Hazard Alert Subcategory: Microbiological - Other Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: -- Distribution: Ontario, Quebec Extent of the product distribution: Retail The Canadian Food Inspection Agency (CFIA) is warning the public not to consume the oysters and clams described below because they may be contaminated with Vibrio parahaemolyticus. Consumers who are unsure if they have purchased affected oysters or clams should contact their retailer. The Canadian importers are voluntarily recalling the affected products from the marketplace. The CFIA is monitoring the effectiveness of the recalls. The Connecticut Department of Agriculture announced a recall of oysters and clams from certain harvest areas, reporting that they were implicated in a number of illnesses in the US. There have been no reported illnesses associated with the consumption of these oysters and clams in Canada. More information on the US recall is available at: http://www.ct.gov/doag/cwp/view.asp?Q=529440&A=1401. Affected products: Common name Code(s) on product ----------- ------------------ Blue point oysters or Atlantic oysters Codes or dates of sale Sold from July 3/13 to August 6/13, inclusively Littleneck clams Codes or dates of sale Sold from July 3/13 to August 6/13, inclusively Cherrystone clams Codes or dates of sale Sold from July 3/13 to August 6/13, inclusively Oysters Codes or dates of sale Sold from July 3/13 to August 6/13, inclusively Blue point oysters Codes or dates of sale Harvest sites CT-79, CT-105, CT-109 and CT-207 and harvest dates from July 3/13 to Aug. 2/13, inclusively. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Washington, D.C., USA. Noemi Irene A. Adala, Joy A. Agravante, Valerie Udtuhan, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2013. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $775 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Peter A. Chapman at 215-945-7000 or Nina Novak at 202-241-8200. * * * End of Transmission * * *