/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/130829.mbx C L A S S A C T I O N R E P O R T E R Thursday, August 29, 2013, Vol. 15, No. 171 Headlines A & O INTERNATIONAL: Recalls Certain Al Khaleej Brand Dates ACTAVIS INC: Bid to Consolidate Loestrin Suits to Be Heard Sept. ACTAVIS INC: Briefing in Cipro Litigation Appeal Will Resume ACTAVIS INC: Continues to Defend Androgel Antitrust Litigation ACTAVIS INC: Defends Suits vs. Anda Alleging TCPA Violations ACTAVIS INC: Plaintiffs Amend Prochieve(R)-Related Complaint BANK OF AMERICA: Faces Force-Placed Insurance Class Action CHARTER COMMS: Scheduling Conference in Lucas Suit Moved to Sept. CONAGRA FOODS: Recalls Kroger's Break 'n Bake Cookie Dough CR BARD: Settles Second Bellwether Transvaginal Mesh Suit DOVE CHOCOLATE: Recalls Dark Chocolate-Covered Fruit Collection ERNST & YOUNG: Schiff Hardin Discusses Class Action Waiver Ruling EXPED AG: Recalls Exped Mira I and Mira II Camping Tents FACEBOOK INC: Judge Approves $20-Mil. Class Action Settlement FUKUDA TRADING: Recalls Certain Orion Brand Potato Chips GLAXOSMITHKLINE: Wants to Take Part in Zoloft MDL Discovery HALO INNOVATIONS: Recalls 27,000 SleepSack Blankets HYUNDAI: Recalls 23,000 Santa Fe SUVs Over Axle Shaft Defect JOHN HANCOCK: Court Dismisses "Feingold" Class Action JOHNSON & JOHNSON: Settles Hip Implant Suits for $3 Billion LABORATORY CORP: Continues to Defend "Jansky" Suit in California LABORATORY CORP: Continues to Defend "Pepe" Suit in Massachusetts LABORATORY CORP: Defends "Sandusky" Suit Alleging TCPA Violations LABORATORY CORP: Faces Suits Over Calif. Labor Code Violations LEFT COAST: Recalls Good Health Natural Foods Over Gluten LES ALIMENTS: Recalls Certain Nutty Bean Brand Chickpea Snacks LOBLAW COMPANIES: Recalls Sunspun Brand Chunk Light Tuna LOWE'S HIW: Court Certifies Class in Contractors' Suit MAGNA INTERNATIONAL: Court Dismisses Securities Class Action McKESSON CORP: Court Stays Proceedings in "Messih" Suit MULTIMEDIA GAMES: Appeal in "Williams" Suit Remains Pending MULTIMEDIA GAMES: Awaits Certification Bid Ruling in "Hardy" Suit NVR INC: Continues to Defend Suits Over Salesmen's Overtime Wages QUALITY NATURAL: Recalls Limca Carbonated Beverage REACTION NUTRITION: Recalls LIVE CLINICAL Due to Undeclared Milk SEARS ROEBUCK: 7th Circuit Reinstates Class Claims SILZONE: Heart Implant Product Liability Class Action Dismissed SOCIAL SERVICE: Court Transfers "Davis" Suit to Florida SOUTH WEST NOVA: Privacy Breach Class Action Can Proceed SUBARU OF AMERICA: Sued for Alleged Defective Pedal Bracket UNITED STATES: Ordered to Pay $1.2BB Settlement to Black Farmers WELLS FARGO: 3 Suits Dismissed Without Leave to Amend WESTLAKE FOODS: Recalls Cured Pork Products Due to Misbranding * Children's Clothing Among Recently Recalled Consumer Products * Lead Paint Manufacturers Attempt to Fend Off Liability Suit * NHTSA Issues New Rules Following Rise in Auto Recalls * NZ Seeks to Reassure Chinese Consumers After Botulism Scare * Three Dozen Food Label Class Actions Pending in Bay Area ********* A & O INTERNATIONAL: Recalls Certain Al Khaleej Brand Dates ----------------------------------------------------------- Starting date: August 22, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Extraneous Material Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: A & O International Distribution: Ontario Extent of the product distribution: Retail CFIA reference number: 8259 Affected products: -- Al Khaleej Saudi Arabian Dates 2 kg.; and -- Al Khaleej Saudi Arabian Dates 4 kg. product ACTAVIS INC: Bid to Consolidate Loestrin Suits to Be Heard Sept. ---------------------------------------------------------------- Actavis, Inc. and other defendants' motion to consolidate lawsuits relating to Loestrin 24(R) is expected to be heard in late September 2013, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On April 5, 2013, two putative class actions were filed in the federal district court (New York Hotel Trades Council & Hotel Assoc. of New York City, Inc. Health Benefits Fund v. Warner Chilcott Pub. Ltd. Co., et al., D.N.J., Civ. No. 13-02178, and United Food and Commercial Workers Local 1776 & Participating Employers Health and Welfare Fund v. Warner Chilcott (US), LLC, et al., E.D.Pa., No. 13-01807) alleging the Company's 2009 patent lawsuit settlement with Warner Chilcott related to Loestrin 24 Fe(R) (norethindrone acetate/ethinyl estradiol tablets and ferrous fumarate tablets, "Loestrin 24(R)") is unlawful. The complaints, both asserted on behalf of putative classes of end-payors, generally allege that the Company and another generic manufacturer improperly delayed launching generic versions of Loestrin 24(R) in exchange for substantial payments from Warner Chilcott, in violation of federal and state antitrust and consumer protection laws. The complaints each seek declaratory and injunctive relief and damages. On April 15, 2013, the plaintiff in New York Hotel Trades withdrew its complaint and, on April 16, 2013, refiled it in the federal court for the Eastern District of Pennsylvania (New York Hotel Trades Council & Hotel Assoc. of New York City, Inc. Health Benefits Fund v. Warner Chilcott Public Ltd. Co., et al., E.D.Pa., Civ. No. 13-02000). Additional complaints have been filed by different plaintiffs seeking to represent the same putative class of end-payors (A.F. of L. - A.G.C. Building Trades Welfare Plan v. Warner Chilcott, et al., D.N.J. 13-02456, Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund v. Warner Chilcott Public Ltd. Co., et al., E.D.Pa. Civ. No. 13-02014). Electrical Workers 242 and 294 Health & Welfare Fund v. Warner Chilcott Public Ltd. Co., et al., E.D.Pa. Civ. No. 13-2862 and City of Providence v. Warner Chilcott Public Ltd. Co., et al., D.R.I. Civ. No. 13-307). In addition to the end-payor lawsuits, two lawsuits have been filed on behalf of a class of direct payors (American Sales Company, LLC v. Warner Chilcott Public Ltd., Co. et al., D.R.I. Civ. No. 12-347 and Rochester Drug Co-Operative Inc., v. Warner Chilcott (US), LLC, et al., E.D.Pa. Civ. No. 13-133476). On June 18, 2013, the defendants filed a motion with the Judicial Panel on Multidistrict Litigation to consolidate these cases in one federal district court. The Defendants' motion is expected to be heard in late September 2013. Notwithstanding the motion for consolidation, these cases are still in their early stages and discovery has not yet begun on either the class allegations or merits. The Company anticipates additional claims or lawsuits based on the same or similar allegations. The Company believes that these actions are without merit and intends to defend itself vigorously. However, these actions, if successful, could have a material adverse effect on the Company's business, results of operations, financial condition and cash flows. Headquartered in Parsippany, New Jersey, Actavis, Inc. is an integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic and brand pharmaceutical products. Through its third- party business within the Actavis Pharma segment, Actavis out- licenses generic pharmaceutical products rights developed or acquired by the Company, primarily in Europe. Actavis is also developing biosimilar products within the Actavis Specialty Brands segment. ACTAVIS INC: Briefing in Cipro Litigation Appeal Will Resume ------------------------------------------------------------ The remaining parties will resume briefing in an appeal in the Cipro(R) Litigation, according to Actavis, Inc.'s July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Beginning in July 2000, a number of lawsuits were filed against the Company, The Rugby Group, Inc. ("Rugby") and other company affiliates in various state and federal courts alleging claims under various federal and state competition and consumer protection laws. Several plaintiffs have filed amended complaints and motions seeking class certification. Approximately 42 were cases filed against the Company, Rugby and other Company entities. Many of these actions have been dismissed. Actions remain pending in various state courts, including California, Kansas, Tennessee, and Florida. The actions generally allege that the defendants engaged in unlawful, anticompetitive conduct in connection with alleged agreements, entered into prior to the Company's acquisition of Rugby from Sanofi Aventis ("Sanofi"), related to the development, manufacture and sale of the drug substance ciprofloxacin hydrochloride, the generic version of Bayer's brand drug, Cipro (R). The actions generally seek declaratory judgment, damages, injunctive relief, restitution and other relief on behalf of certain purported classes of individuals and other entities. In the action pending in Kansas, the court has administratively terminated the matter. There has been no action in the cases pending in Florida and Tennessee since 2003. In the action pending in the California Superior Court for the County of San Diego (In re: Cipro Cases I & II, JCCP Proceeding Nos. 4154 & 4220), on July 21, 2004, the California Court of Appeal ruled that the majority of the plaintiffs would be permitted to pursue their claims as a class. On August 31, 2009, the California Superior Court granted defendants' motion for summary judgment, and final judgment was entered on September 24, 2009. On October 31, 2011, the California Court of Appeal affirmed the Superior Court's judgment. On December 13, 2011, the plaintiffs filed a petition for review in the California Supreme Court. On February 15, 2012, the California Supreme Court granted review. On September 12, 2012, the California Supreme Court entered a stay of all proceedings in the case pending a decision from the United States Supreme Court in an unrelated case that raises similar legal issues. The California Supreme Court lifted the stay on June 26, 2013, following the ruling by the United States Supreme Court. The Plaintiffs and Bayer recently announced that they have reached an agreement to settle the claims pending against Bayer. The Plaintiffs are continuing to pursue claims against the generic defendants, including the Company and Rugby. The remaining parties now will resume briefing in this appeal. In addition to the pending actions, the Company understands that various state and federal agencies are investigating the allegations made in these actions. Sanofi has agreed to defend and indemnify the Company and its affiliates in connection with the claims and investigations arising from the conduct and agreements allegedly undertaken by Rugby and its affiliates prior to the Company's acquisition of Rugby, and is currently controlling the defense of these actions. Headquartered in Parsippany, New Jersey, Actavis, Inc. is an integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic and brand pharmaceutical products. Through its third- party business within the Actavis Pharma segment, Actavis out- licenses generic pharmaceutical products rights developed or acquired by the Company, primarily in Europe. Actavis is also developing biosimilar products within the Actavis Specialty Brands segment. ACTAVIS INC: Continues to Defend Androgel Antitrust Litigation -------------------------------------------------------------- Actavis, Inc., continues to defend itself against claims in the Androgel(R) Antitrust Litigation, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On January 29, 2009, the U.S. Federal Trade Commission and the State of California filed a lawsuit in the United States District Court for the Central District of California (Federal Trade Commission, et al. v. Watson Pharmaceuticals, Inc., et al., USDC Case No. CV 09-00598) alleging that the Company's September 2006 patent lawsuit settlement with Solvay Pharmaceuticals, Inc., related to AndroGel(R) 1% (testosterone gel) CIII is unlawful. The complaint generally alleged that the Company improperly delayed its launch of a generic version of Androgel (R) in exchange for Solvay's agreement to permit the Company to co- promote Androgel (R) for consideration in excess of the fair value of the services provided by the Company, in violation of federal and state antitrust and consumer protection laws. The complaint sought equitable relief and civil penalties. On February 2 and 3, 2009, three separate lawsuits alleging similar claims were filed in the United States District Court for the Central District of California by various private plaintiffs purporting to represent certain classes of similarly situated claimants (Meijer, Inc., et al., v. Unimed Pharmaceuticals, Inc., et al., USDC Case No. EDCV 09-0215); (Rochester Drug Co-Operative, Inc. v. Unimed Pharmaceuticals Inc., et al., Case No. EDCV 09-0226); (Louisiana Wholesale Drug Co. Inc. v. Unimed Pharmaceuticals Inc., et. al, Case No. EDCV 09-0228). On April 8, 2009, the Court transferred the government and private cases to the United States District Court for the Northern District of Georgia. On April 21, 2009, the State of California voluntarily dismissed its lawsuit against the Company without prejudice. The Federal Trade Commission and the private plaintiffs in the Northern District of Georgia filed amended complaints on May 28, 2009. The private plaintiffs amended their complaints to include allegations concerning conduct before the U.S. Patent and Trademark Office, conduct in connection with the listing of Solvay's patent in the Food and Drug Administration's "Orange Book," and sham litigation. Additional actions alleging similar claims have been filed in various courts by other private plaintiffs purporting to represent certain classes of similarly situated direct or indirect purchasers of Androgel (R) (Stephen L. LaFrance Pharm., Inc. d/b/a SAJ Dist. v. Unimed Pharms., Inc., et al., D. NJ Civ. No. 09- 1507); (Fraternal Order of Police, Fort Lauderdale Lodge 31, Insurance Trust Fund v. Unimed Pharms. Inc., et al., D. NJ Civ. No. 09-1856); (Scurto v. Unimed Pharms., Inc., et al., D. NJ Civ. No. 09-1900); (United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund v. Unimed Pharms., Inc., et al., D. MN Civ. No. 09-1168); (Rite Aid Corp. et al. v. Unimed Pharms., Inc. et al., M.D. PA Civ. No. 09-1153); (Walgreen Co., et al. v. Unimed Pharms., LLC, et al., MD. PA Civ. No. 09-1240); (Supervalu, Inc. v. Unimed Pharms., LLC, et al, ND. GA Civ. No. 10-1024); (LeGrand v. Unimed Pharms., Inc., et al., ND. GA Civ. No. 10-2883); (Jabo's Pharmacy Inc. v. Solvay Pharmaceuticals, Inc., et al., Cocke County, TN Circuit Court Case No. 31,837). On April 20, 2009, the Company was dismissed without prejudice from the Stephen L. LaFrance action pending in the District of New Jersey. On October 5, 2009, the Judicial Panel on Multidistrict Litigation transferred all actions then pending outside of the United States District Court for the Northern District of Georgia to that district for consolidated pre-trial proceedings (In re: AndroGel(R) Antitrust Litigation (No. II), MDL Docket No. 2084), and all currently-pending related actions are presently before that court. On February 22, 2010, the judge presiding over all the consolidated litigations related to Androgel(R) then pending in the United States District Court for the Northern District of Georgia granted the Company's motions to dismiss the complaints, except the portion of the private plaintiffs' complaints that include allegations concerning sham litigation. Final judgment in favor of the defendants was entered in the Federal Trade Commission's action on April 21, 2010. On April 25, 2012, the Court of Appeals affirmed the dismissal. On December 7, 2012, the U.S. Supreme Court granted the FTC's Petition for a Writ of Certiorari. The hearing on the petition was held on March 25, 2013. On June 17, 2013, the Supreme Court issued a decision, holding that the settlements between brand and generic drug companies which include a payment from the brand company to the generic competitor must be evaluated under a "rule of reason" standard of review. The case will now be sent back to the Court of Appeals. On July 20, 2010, the plaintiff in the Fraternal Order of Police action filed an amended complaint adding allegations concerning conduct before the U.S. Patent and Trademark Office, conduct in connection with the listing of Solvay's patent in the Food and Drug Administration's "Orange Book," and sham litigation similar to the claims raised in the direct purchaser actions. On October 28, 2010, the judge presiding over MDL 2084 entered an order pursuant to which the LeGrand action, filed on September 10, 2010, was consolidated for pretrial purposes with the other indirect purchaser class action as part of MDL 2084 and made subject to the Court's February 22, 2010 order on the motion to dismiss. In February 2012, the direct and indirect purchaser plaintiffs and the defendants filed cross-motions for summary judgment, and on June 22, 2012, the indirect purchaser plaintiffs, including Fraternal Order of Police, LeGrand and HealthNet, filed a motion for leave to amend and consolidate their complaints. On September 28, 2012, the district court granted summary judgment in favor of the defendants on all outstanding claims. The plaintiffs have appealed. The Company believes that these actions are without merit and intends to defend itself vigorously. However, these actions, if successful, could have a material adverse effect on the Company's business, results of operations, financial condition and cash flows. Headquartered in Parsippany, New Jersey, Actavis, Inc. is an integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic and brand pharmaceutical products. Through its third- party business within the Actavis Pharma segment, Actavis out- licenses generic pharmaceutical products rights developed or acquired by the Company, primarily in Europe. Actavis is also developing biosimilar products within the Actavis Specialty Brands segment. ACTAVIS INC: Defends Suits vs. Anda Alleging TCPA Violations ------------------------------------------------------------ Actavis, Inc. is defending a subsidiary against a class action lawsuit and related cases alleging violations of the Telephone Consumer Protection Act, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. In January 2008, Medical West Ballas Pharmacy, LTD, filed a putative class action complaint against the Company alleging conversion and alleged violations of the Telephone Consumer Protection Act ("TCPA") and Missouri Consumer Fraud and Deceptive Business Practices Act. The case is Medical West Ballas Pharmacy, LTD, et al. v. Anda, Inc., (Circuit Court of the County of St. Louis, State of Missouri, Case No. 08SL-CC00257). In April 2008, plaintiff filed an amended complaint substituting Anda, Inc., a subsidiary of the Company, as the defendant. The amended complaint alleges that by sending unsolicited facsimile advertisements, Anda misappropriated the class members' paper, toner, ink and employee time when they received the alleged unsolicited faxes, and that the alleged unsolicited facsimile advertisements were sent to the plaintiff in violation of the TCPA and Missouri Consumer Fraud and Deceptive Business Practices Act. The TCPA allows recovery of minimum statutory damages of $500 per violation, which can be trebled if the violations are found to be willful. The complaint seeks to assert class action claims on behalf of the plaintiff and other similarly situated third parties. In April 2008, Anda filed an answer to the amended complaint, denying the allegations. In November 2009, the court granted plaintiff's motion to expand the proposed class of plaintiffs from individuals for which Anda lacked evidence of express permission or an established business relationship to "All persons who on or after four years prior to the filing of this action, were sent telephone facsimile messages advertising pharmaceutical drugs and products by or on behalf of Defendant." In November 2010, the plaintiff filed a second amended complaint further expanding the definition and scope of the proposed class of plaintiffs. On December 2, 2010, Anda filed a motion to dismiss claims the plaintiff is seeking to assert on behalf of putative class members who expressly consented or agreed to receive faxes from Defendant, or in the alternative, to stay the court proceedings pending resolution of Anda's petition to the FCC. On April 11, 2011, the court denied the motion. On May 19, 2011, the plaintiff's filed their motion seeking certification of a class of entities with Missouri telephone numbers who were sent Anda faxes for the period January 2004 through January 2008. The motion has been briefed and was scheduled for hearing on August 21, 2013. No trial date has been set in the matter. On May 1, 2012, an additional action under the TCPA was filed by Physicians Healthsource, Inc., purportedly on behalf of the "end users of the fax numbers in the United States but outside Missouri to which faxes advertising pharmaceutical products for sale by Anda were sent" (Physicians Healthsource Inc. v. Anda Inc. United States District Court for the Southern District of Florida, 12 CV 60798). On July 10, 2012, Anda filed its answer and affirmative defenses. The matter is in its preliminary stages and no trial date has been set. Several issues raised in plaintiff's motion for class certification in the Medical West matter were addressed by the Eighth Circuit Court of Appeals in an unrelated case to which Anda is not a party, Nack v. Walburg, No. 11-1460. Nack concerned whether there is a private right of action for failing to include any opt-out notice on faxes sent with express permission, contrary to a Federal Communications Commission (FCC) Regulation that requires such notice on fax advertisements. The Eighth Circuit granted Anda leave to file an amicus brief and to participate during oral argument in the matter, which was held on September 19, 2012. In its ruling, issued May 21, 2013, the Eighth Circuit held that Nack's arguments on appeal amounted to challenges to the FCC's regulation and that the court lacked jurisdiction to entertain such challenges pursuant to the Hobbs Act and it would otherwise not decide any similar challenges without the benefit of full participation by the FCC. In a related matter, on November 30, 2010, Anda filed a petition with the FCC, asking the FCC to clarify the statutory basis for its regulation requiring "opt-out" language on faxes sent with express permission of the recipient (the "FCC Petition"). On May 2, 2012, the Consumer & Governmental Affairs Bureau of the FCC dismissed the FCC Petition. On May 14, 2012, Anda filed an application for review of the Bureau's dismissal by the full Commission, requesting the FCC to vacate the dismissal and grant the relief sought in the FCC Petition. The FCC has not ruled on the application for review. Anda believes it has substantial meritorious defenses to the putative class actions brought under the TCPA, including but not limited to its receipt of consent to receive facsimile advertisements from many of the putative class members, and intends to defend the actions vigorously. However, these actions, if successful, could have a material adverse effect on the Company's business, results of operations, financial condition and cash flows. Headquartered in Parsippany, New Jersey, Actavis, Inc. is an integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic and brand pharmaceutical products. Through its third- party business within the Actavis Pharma segment, Actavis out- licenses generic pharmaceutical products rights developed or acquired by the Company, primarily in Europe. Actavis is also developing biosimilar products within the Actavis Specialty Brands segment. ACTAVIS INC: Plaintiffs Amend Prochieve(R)-Related Complaint ------------------------------------------------------------ The plaintiffs in a consolidated class action lawsuit related to Prochieve(R) progesterone gel filed a second amended complaint in July 2013, according to Actavis, Inc.'s July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On June 8, 2012, the Company and certain of its officers were named as defendants in a consolidated amended class action complaint filed in the United States District Court for the District of New Jersey (In re: Columbia Laboratories, Inc. Securities Litigation, Case No. CV 12-614) by a putative class of Columbia Laboratories' stock purchasers. The amended complaint generally alleges that between December 6, 2010, and January 20, 2012, Actavis and certain of its officers, as well as Columbia Laboratories and certain of its officers, made false and misleading statements regarding the likelihood of Columbia Laboratories obtaining U.S. Food and Drug Administration ("FDA") approval of Prochieve(R) progesterone gel, Columbia Laboratories' developmental drug for prevention of preterm birth. Actavis licensed the rights to Prochieve(R) from Columbia Laboratories in July 2010. The amended complaint further alleges that the defendants failed to disclose material information concerning the statistical analysis of the clinical studies performed by Columbia Laboratories in connection with its pursuit of FDA approval of Prochieve(R). The complaint seeks unspecified damages. On August 14, 2012, the defendants filed a motion to dismiss all of the claims in the amended complaint which the court granted on June 11, 2013. The Plaintiffs filed a second amended complaint on July 11, 2013. Actavis believes the case is without merit and that it has substantial meritorious defenses, which it intends to vigorously pursue. Additionally, Actavis maintains insurance to provide coverage for the claims alleged in the action. However, litigation is inherently uncertain and the Company cannot predict the outcome of this litigation. The action, if successful, or if insurance does not provide sufficient coverage against such claims, could adversely affect the Company and could have a material adverse effect on the Company's business, results of operations, financial condition and cash flows. Headquartered in Parsippany, New Jersey, Actavis, Inc. is an integrated global specialty pharmaceutical company engaged in the development, manufacturing, marketing, sale and distribution of generic and brand pharmaceutical products. Through its third- party business within the Actavis Pharma segment, Actavis out- licenses generic pharmaceutical products rights developed or acquired by the Company, primarily in Europe. Actavis is also developing biosimilar products within the Actavis Specialty Brands segment. BANK OF AMERICA: Faces Force-Placed Insurance Class Action ---------------------------------------------------------- Heidi Turner, writing for LawyersandSettlements.com, reports that a force-placed insurance lawsuit filed against Bank of America seeks class-action status. The lawsuit, filed in California in 2012 by Christopher Gustafson, alleges Bank of America provided force-placed insurance from its own affiliates at a high cost to the borrower while receiving fees, payments or commissions from force-placed insurance providers. Force-placed insurance lawsuits have been filed against a variety of banks alleging the banks engaged in abusive and unfair practices. According to court documents (case number SACV-11-00915-JST-AN, United States District Court, Central District of California), Christopher Gustafson filed his lawsuit against Bank of America alleging "unlawful, abusive and unfair practices with respect to force-placed insurance . . ." The lawsuit notes that when borrowers do not maintain their hazard insurance policies, mortgage loan servicers replace those insurance policies with force-place policies, which are typically more expensive than the original policies but have less coverage. Finally, the mortgage loan servicer allegedly receives financial gain in the form of fees, payments or commissions for using the force-placed insurance. "Further, such policies often provide unnecessary or duplicative coverage, in that they are improperly backdated to collect premiums for time periods during which the mortgagor has absolutely no risk of loss," the lawsuit alleges. Ultimately, force-placed insurance makes more money for the loan servicer, costs the homeowner more money with less protection and forces borrowers to pay for insurance that is unnecessary. The defendants do this without any attempt to provide competitive pricing for the insurance, the lawsuit alleges, but makes money off the transaction, constituting "exploitative profiteering and self-dealing" and a violation of mortgage contracts. The lawsuit alleges that Bank of America used a force-placed insurance policy on his mortgage with a premium of $1,045, almost two times the original insurance premium of $614. Furthermore, the coverage exceeded the lender's stake in the property because the coverage was for more than $76,000, where as the outstanding balance on the loan was for less than $48,000. Other lenders have also faced lawsuits concerning their use of force-placed insurance and their failure to disclose that they received a fee or commission for using such insurance, which provides an incentive to go with prearranged policies rather than offering competitive solutions or allowing the borrower to have input into the conditions of the policy. CHARTER COMMS: Scheduling Conference in Lucas Suit Moved to Sept. ----------------------------------------------------------------- LUCAS v. CHARTER COMMUNICATIONS, INC. is a putative class action complaint asserting federal jurisdiction based upon the Class Action Fairness Act. At the initial scheduling conference held on March 7, 2013, defendants indicated that the complained-of charge was an isolated mistake affecting only the named plaintiff. For that reason, the parties asked for and obtained permission to engage in some limited discovery to determine whether a class action was appropriate in this case. In their latest submission to the Court, the parties request an additional 30 days to determine whether early settlement can be reached. District Judge Rodney W. Sippel said he will grant the parties some additional time, but added that this is the last continuance that will be granted for this purpose. "If the parties have not settled this case by September 25, 2013, the Court will hold a supplemental scheduling conference," he said. "At that conference, plaintiff will be expected to set for the good faith basis for her allegation that this case is appropriate for resolution under the Class Action Fairness Act. If the Court has subject matter jurisdiction, then it will set a schedule for the remainder of the case." Accordingly, the scheduling conference set for August 20, 2013, at 10:00 a.m. in the chambers of Judge Sippel is reset to Wednesday, September 25, 2013, at 10:30 a.m. The parties will file a joint proposed scheduling plan by noon on Monday, September 23, 2013. The case is VICKI LUCAS, individually and on behalf of all others similarly situated, Plaintiff, v. CHARTER COMMUNICATIONS, INC., et al., Defendants, CASE NO. 4:12 CV 2179 RWS, (E.D. Mo.). A copy of the District Court's August 19, 2013 Memorandum and Order is available at http://is.gd/4umOXUfrom Leagle.com. Vicki Lucas, Plaintiff, represented by John C. Kairis -- jkairis@gelaw.com -- at GRANT AND EISENHOFER, P.A., Reuben A. Guttman -- rguttman@gelaw.com -- at GRANT AND EISENHOFER, P.A., Robert G. Eisler -- reisler@gelaw.com -- at GRANT AND EISENHOFER, P.A. & Christopher A. Hoffman -- choffman@koreintillery.com -- at KOREIN TILLERY LLC. Charter Communications, Inc., Defendant, represented by Robert J. Wagner -- rwagner@thompsoncoburn.com -- at THOMPSON COBURN, LLP & Roman P. Wuller -- rwuller@thompsoncoburn.com -- at THOMPSON COBURN, LLP. Charter Communications Holding Company, LLC, Defendant, represented by Robert J. Wagner, THOMPSON COBURN, LLP & Roman P. Wuller, THOMPSON COBURN, LLP. CONAGRA FOODS: Recalls Kroger's Break 'n Bake Cookie Dough ---------------------------------------------------------- ConAgra Foods, in cooperation with the U.S. Food and Drug Administration (FDA), is recalling a limited number of Kroger's Break 'N Bake chocolate chip cookie dough packages due to peanut butter cup cookie dough inadvertently mispacked into chocolate chip cookie dough packages. People who have an allergy or severe sensitivity to peanuts run the risk of serious or life- threatening allergic reaction if they consume this product. There have been no illnesses reported to date in connection with this product. This recall is limited to Kroger's Break 'N Bake Chocolate Chip cookie dough bearing the following UPC and Use by date. No other products are impacted. Recalled Product: Kroger Break 'N Bake Chocolate Chip Cookie Dough, 16 oz. packages with Unit UPC: 11110 87530 and Use by date: 24NOV13C21 The recalled items were sold in Kroger, Dillons, Baker's, Gerbes, Foods Co., Food 4 Less, Fred Meyer, Fry's, Jay C, Owen's, Pay Less, Scott's, QFC, Ralphs and Smith's stores. The product was shipped to Kroger distribution centers and stores in 26 states, including: Alabama, Alaska, Arizona, California, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Michigan, Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Utah, Virginia, Washington, West Virginia and Wyoming. Not affected by this recall are Kroger's Southwest Division stores in Texas and Louisiana; Kroger's Delta Division stores in western Tennessee, Mississippi, Arkansas, western Kentucky and southern Missouri; and King Soopers and City Market stores in Colorado, New Mexico, Utah and Wyoming. Consumers who have purchased this product should return it to the store where originally purchased for a full refund. Consumer with questions about this issue may call 800-252-0634, 24 hours per day/seven days per week. ConAgra Foods is also issuing an alert through Food Allergy Research & Education (FARE) in an effort to inform any potentially impacted consumers. The label does indicate that the product may contain peanuts. CR BARD: Settles Second Bellwether Transvaginal Mesh Suit --------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that the second federal bellwether trial over transvaginal mesh devices has settled for an undisclosed sum, while manufacturer C.R. Bard Inc. continues to press that the FDA's approval of its device should be admitted as evidence to jurors. The settlement was revealed in a filing on Aug. 23 by U.S. District Judge Joseph Goodwin, who is overseeing litigation over transvaginal mesh products in Charleston, W.Va. A separate federal jury in the first bellwether trial awarded $2 million to a woman who alleged that Bard failed to warn of defects in its product that caused her bleeding and pain. Plaintiffs attorney Henry Garrard III of Blasingame Burch Garrard & Ashley in Athens, Ga., who represents the women in both cases, declined to comment about the settlement, the terms of which were confidential. "We are continuing to fight for women and hope that those in charge will recognize their responsibilities and step forward," Mr. Garrard said by email. Bard's attorney, Lori Cohen -- cohenl@gtlaw.com -- chairwoman of the pharmaceutical, medical device & health care litigation practice at Greenberg Traurig in Atlanta, did not respond to requests for comment. Scott Lowrey, vice president and treasurer of Bard, said in an emailed statement: "This is a large, complex litigation and Bard will consider each case based on the facts and merits. We believe the evidence establishes that our Avaulta mesh products, cleared by the FDA, are safe and effective, and provide significant benefits to patients and we will continue to vigorously defend against all other lawsuits involving Avaulta." Some 20,000 lawsuits have been coordinated in multidistrict litigation against Bard and five other manufacturers of transvaginal mesh products used to treat pelvic organ prolapse, a condition that can cause urinary incontinence or pain, sometimes during sex. In 2011, the U.S. Food and Drug Administration issued a safety warning that "serious complications associated with surgical mesh for transvaginal repair of [pelvic organ prolapse] are not rare." The FDA asked manufacturers to submit additional studies of the safety and effectiveness of their products. Bard pulled its Avaulta devices off the market last year. In the first case to go to trial, Donna Cisson alleged that she had to undergo two surgeries to remove the device, one of Bard's line of Avaulta products. The jury found on August 15 that Bard failed to warn about a design defect and awarded $250,000 in compensatory damages and $1.75 million in punitive damages. The settlement ended the second trial, which began on Aug. 21, on behalf of a North Carolina woman, Wanda Queen. A third bellwether case goes to trial on October 8 and a fourth on November 4. On June 27, Judge Goodwin granted a motion to exclude from all the four trials any evidence that Bard's product had been cleared for sale through a so-called 501(k) approval process, in which the U.S. Food and Drug Administration allows a company to sell a medical device that is substantially similar to a product already on the market. He also granted a motion to exclude evidence that the FDA never took any enforcement action over the Avaulta device. Bard, which had argued to include such evidence in an unsuccessful attempt to eliminate the potential for punitive damages from the bellwether cases, immediately sought reconsideration of that order or, in the alternative, to certify the issue for interlocutory appeal to the U.S. Court of Appeals for the Fourth Circuit. Judge Goodwin's ruling, Ms. Cohen wrote, "has unintended consequences that will radically and disproportionately affect the fairness of this trial." DOVE CHOCOLATE: Recalls Dark Chocolate-Covered Fruit Collection --------------------------------------------------------------- Dove Chocolate Discoveries (DCD) is voluntarily recalling its Dark Chocolate-Covered Fruit Collection boxes marked Item #3265D, lot code #317DAIDS01 because some boxes may contain undeclared nuts. People who have an allergy or severe sensitivity to nuts run the risk of serious or life-threatening allergic reaction if they consume this product. No illnesses or reactions have been reported to date. Over the past two weeks, the company has made an effort to contact all recipients of the affected boxes. However, a number of those recipients could not be reached, and up to four mislabeled boxes remain outside company control. The product, which is unique to DCD's home party business and not available in stores, was distributed through home party sales in the United States. Highlighted text The interior packaging is labeled properly indicating a product that includes nuts. The recall was initiated when the company received a call from independent Chocolatier (sales representative) indicating that a customer order for Dark Chocolate-Covered Fruit Collection contained Dark Chocolate Cinnamon Dusted Almonds. The company requests that consumers who have a box of Dark Chocolate-Covered Fruit Collection Item #3265D, lot code #317DAIDS01 please contact (866) 922-3683 (M-F, 8:30 - 5:00 ET) to coordinate product return and replacement. ERNST & YOUNG: Schiff Hardin Discusses Class Action Waiver Ruling ----------------------------------------------------------------- Steven T. Catlett, Esq. at Schiff Hardin LLP reports that less than two weeks after the Second Circuit approved a class action waiver in Sutherland v. Ernst & Young LLP (Aug. 9, 2013), the Ninth Circuit too has ruled that an employer's arbitration agreement with a class action waiver will be enforced. Richards v. Ernst & Young LLP, No. 11-17530 (9th Cir. Aug. 21, 2013). In doing so, the Ninth Circuit, as did the Second Circuit, applied the U.S. Supreme Court's decision in American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013), and rejected the argument that the NLRB's decision in D.R. Horton invalidates class action waivers. Employers thus can be increasingly confident that they may be able to minimize their risk of class action employment litigation if they adopt a properly constructed arbitration program. Michelle Richards filed a wage-hour class action suit against Ernst & Young in 2008. (Her case was consolidated for purposes of class certification with two other cases filed earlier.) While Richards was subject to an arbitration program with a class action waiver, E&Y did not seek to compel arbitration until after the Supreme Court's 2011 decision in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). E&Y took the position that any earlier effort to compel arbitration would have been futile, since under California state law, class action waivers were unenforceable. Richards argued that E&Y's delay prevented it from enforcing the arbitration agreement and class action waiver, and the District Court agreed. On appeal, the Ninth Circuit reversed. The court noted that waivers of contractual rights, including the right to arbitrate, were disfavored, and found that while there had been litigation on the merits prior to E&Y's arbitration motion, that did not prejudice Richards or prevent enforcing the arbitration agreement. The Ninth Circuit then turned to Richard's substantive argument for rejecting the arbitration agreement and class action waiver. Specifically, Richards argued that the Court should rely on the NLRB's decision in D.R. Horton, 357 N.L.R.B. No. 184, 2012 WL 36274 (2012), which states that class action waivers are categorically unenforceable under the National Labor Relations Act. The Ninth Circuit declined to do so, joining the Eighth Circuit and the "overwhelming majority of the district courts" in rejecting D.R. Horton as inconsistent with the FAA's strong pro-arbitration policy. The Ninth Circuit then noted that this pro-arbitration policy recently had been reiterated by the Supreme Court in American Express. With this decision, there now are two Courts of Appeals applying American Express to uphold class action waivers in an arbitration agreement in the employment setting, and a virtually uniform slate of courts rejecting D.R. Horton. Employers that have an arbitration program in place may want to consider adding a class action waiver, or, if a class action waiver is included, having that waiver reviewed for proper construction. If employers do not have arbitration programs and are concerned with the exposure presented by possible employment class actions, serious consideration should be given to an arbitration program. EXPED AG: Recalls Exped Mira I and Mira II Camping Tents -------------------------------------------------------- Starting date: August 26, 2013 Posting date: August 26, 2013 Type of communication: Consumer Product Recall Subcategory: Outdoor Living Source of recall: Health Canada Issue: Product Safety, Flammability Hazard Audience: General Public Identification number: RA-35263 Affected Products: Exped Mira I and Mira II Camping Tents The recall involves the following Exped brand tents: Exped Mira I and Mira II tents with lot numbers beginning with 11, 21 or 31. The Lot Number is found on the tag sewn on the fly and in the inner tent. Health Canada's testing process revealed that the materials used in these tents do not meet the requirements for tent flammability under Canadian law. The tents could easily catch fire if exposed to a continuous flame or other ignition source and cause severe burns to consumers. Pictures of the recalled products are available at: http://is.gd/iFAf7K Neither Exped AG nor Health Canada has received any reports of incidents or injuries related to the use of these tents. Approximately 8 tents were sold by retailers in Canada. The recalled tents were manufactured in China and sold from January 2011 to August 2013. Companies: Importer Exped AG Zurich Switzerland Distributor In-Sport Fashions Inc. Montreal Quebec Canada Consumers should stop using the tent immediately. For more information please call In-Sport Fashions Inc. at 1-514- 385-1577 or Exped AG at +41 444971010. FACEBOOK INC: Judge Approves $20-Mil. Class Action Settlement ------------------------------------------------------------- The Recorder reports that in a long-awaited conclusion to Facebook's "Sponsored Stories" class action saga, a federal judge gave final approval to a $20 million settlement on Aug. 26 but took an axe to the $7.5 million in fees requested by plaintiffs attorneys. The settlement approved by U.S. District Judge Richard Seeborg provides for each Facebook user who submitted a valid claim to receive $15, with remaining funds disbursed to 14 organizations focused on consumer protection, privacy and other issues raised in the suit. Facebook Inc. is also required to improve its disclosure practices, giving users more control over when and how their names and photos will be used. The company must also create special controls for minors. "We are pleased that the settlement has received final approval," a Facebook spokeswoman said in a statement. Fraley v. Facebook, 11-1726, was filed in March 2011 on behalf of some 150 million social network users whose names and likenesses were used to promote products and services through Facebook's "Sponsored Stories" advertising feature. Judge Seeborg granted the plaintiffs' motion for attorney fees, costs and incentive awards, but reduced some amounts. The class had moved to recoup $7.5 million in attorney fees, which marked 37.5 percent of the settlement fund. Though above the typical 25 percent benchmark, plaintiffs lawyers argued their fees should reflect the value of injunctive relief secured for the class. Judge Seeborg rejected that approach, finding "nothing to suggest . . . that any class member will see a single dollar more in his or her pocket as a result of any of the injunctive provisions." Instead, he awarded plaintiffs lawyers 25 percent of the settlement fund after the deduction of administration expenses, incentive awards and costs. Those payments are expected to total roughly $1.1 million, making the fee award approximately $4.7 million. The three named plaintiffs had sought incentive awards of $12,500 apiece, for a total of $37,500. Instead, they'll receive $1,500 each. Last December, Judge Seeborg gave preliminary approval to a settlement that would have distributed $10 per claimant. The final action marks a sweeter deal for them -- in part because so few came forward. In his order granting final approval, Judge Seeborg wrote that he weighed an even greater payout to claimants. However, he determined that increasing the payment further would unfairly penalize class members who didn't bother submitting claims for what they believed to be negligible compensation. The judge had previously rejected a $20 million proposal that divvied up the settlement for charitable donations and attorney fees but gave no monetary benefit to class members. Robert Arns -- rsa@arnslaw.com -- the San Francisco plaintiffs attorney who is lead counsel for the class, did not respond to a request for comment. Cooley partner Michael Rhodes -- rhodesmg@cooley.com -- who represented Facebook, deferred comment to the company's press team. FUKUDA TRADING: Recalls Certain Orion Brand Potato Chips -------------------------------------------------------- Starting date: August 23, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Milk Hazard classification: Class 2 Source of recall: Canadian Food Inspection Agency Recalling firm: Fukuda Trading Co. Ltd. Distribution: Alberta, British Columbia, May be National Extent of the product distribution: Retail Affected products: -- Orion Italian Gratin flavoured Italian potato chips 115 g. with all codes (where milk is not declared in the list of ingredients); and -- Orion Italian Gratin flavoured Italian potato chips 50 g. with all codes (where milk is not declared in the list of ingredients) The Canadian Food Inspection Agency (CFIA) and Fukuda Trading Co. Ltd. are warning people with allergies to milk not to consume certain Orion brand Italian Gratin flavoured Italian potato chips. The affected products contain milk which is not declared on the label. Pictures of the recalled products are available at: http://is.gd/Fa9ARm These products have been distributed in British Columbia and Alberta and may have been distributed in other provinces as well. There has been one reported illness associated with the consumption of these products. Consumption of these products may cause a serious or life- threatening reaction in persons with allergies to milk. The importer, Fukuda Trading Co. Ltd., Richmond, British Columbia, is voluntarily recalling the affected products from the marketplace. The CFIA is monitoring the effectiveness of the recall. GLAXOSMITHKLINE: Wants to Take Part in Zoloft MDL Discovery ----------------------------------------------------------- P.J. D'Annunzio, writing for The Legal Intelligencer, reports that in ongoing pharmaceutical litigation over alleged links between antidepressants and birth defects, GlaxoSmithKline is seeking the opportunity to participate in discovery in the Zoloft multidistrict litigation. GlaxoSmithKline, a co-defendant of Pfizer in three cases in In re Zoloft, is arguing that the plaintiffs' experts are offering opinions on drugs other than Zoloft, including GSK's Paxil. U.S. District Judge Cynthia M. Rufe of the Eastern District of Pennsylvania ordered the exchange of expert reports regarding Zoloft general causation, but GSK argued that allowing plaintiffs' experts to provide reports about SSRI (selective serotonin reuptake inhibitor) drugs other than Pfizer's Zoloft is unfair. It also argued in the motion that if the scope of the experts' opinions is not narrowed to Zoloft, GSK should be able to participate. "Given the breadth of plaintiffs' experts' opinions, GSK seeks clarification from the court that plaintiffs' experts will not be allowed to opine in the initial discovery group about Paxil's alleged ability to cause birth defects or that SSRIs as a group cause birth defects," GSK said in a memorandum of law filed last week. "If plaintiffs' experts are allowed to offer such opinions, GSK would not have a full and fair opportunity to address claims that all SSRIs are teratogens," substances that may cause malformation of an embryo. GSK claimed that while it does not have as large a volume of cases as Pfizer in Zoloft, the plaintiffs' experts' "overly broad attack" on SSRIs could impact GSK's ability to provide an adequate defense in cases where it is named as a co-defendant. "Fundamental principles of fairness and due process mitigate against applying any rulings related to the initial discovery group's expert reports to GSK if GSK has not had an opportunity to litigate the critical issues of causation outlined by plaintiffs' expert reports," GSK argued in its filing. Judge Rufe required the plaintiffs' experts to address Zoloft's alleged ability to cause birth defects, GSK said. The plaintiffs' experts also served reports to defendants that encompass general causation issues for all SSRIs, including Paxil, according to GSK. GSK asked that if Judge Rufe, after clarifying her order, states she actually intended to hear the broad-based allegations made by the plaintiffs' experts in this initial discovery, then GSK "must be allowed to submit expert reports, participate in the Daubert proceedings, with the schedule adjusted accordingly," given the potential impact on GSK's cases. HALO INNOVATIONS: Recalls 27,000 SleepSack Blankets --------------------------------------------------- The Associated Press reports that baby products maker Halo is recalling 27,000 of its SleepSack wearable blankets due to a choking hazard. Halo Innovations Inc. and the U.S. Consumer Product Safety Commission said on Aug. 22 the wearable cotton blankets were sold at Babies R Us from December 2011 through July 2013 for about $25. The recalled garment is white and has pink ruffles and a pink satin rose. The rose can detach from the blanket and pose a choking hazard to infants. Halo has received six reports of petals detaching from the garment. That includes one report of an infant who gagged on the detached flower. Consumers should stop using the blank and contact the company for instructions on how to remove the flower and receive a free replacement product. HYUNDAI: Recalls 23,000 Santa Fe SUVs Over Axle Shaft Defect ------------------------------------------------------------ The Associated Press reports that Hyundai is recalling about 23,000 SUVs in the U.S. and Canada because an axle can fail, causing the car to lose power. The recall affects 2013 Santa Fe Sport models with front-wheel- drive and 2.4-liter, four-cylinder engines. They were built between July 11, 2012 through March 12 of this year. Hyundai says the right axle shaft can fail in rare cases. If that happens, the SUVs can lose power or roll away if parked on a slope. The company says it's not aware of any crashes or injuries linked to the defect. Owners are being notified by letter. Dealers will replace the axle shaft free of charge. JOHN HANCOCK: Court Dismisses "Feingold" Class Action ----------------------------------------------------- District Judge Joseph L. Tauro dismissed the case captioned RICHARD FEINGOLD, individually and as a representative of a class of similarly-situated persons, Plaintiff, v. JOHN HANCOCK LIFE INSURANCE COMPANY (USA) and JOHN HANCOCK LIFE & HEALTH INSURANCE COMPANY, Defendants, CIVIL ACTION NO. 13-10185-JLT, (D. Mass.) The case arises from the retention of life insurance policy proceeds by Defendants John Hancock Life Insurance Company (USA) and John Hancock Life & Health Insurance Company. Plaintiff Richard Feingold challenges John Hancock's practice of holding policy proceeds until receiving proof of the insured's death. John Hancock has moved to dismiss the complaint. A copy of the District Court's August 19, 2013 Memorandum is available at http://is.gd/0lABfF from Leagle.com. Richard Feingold, Plaintiff, represented by Alan L. Cantor, Swartz & Swartz & George K. Lang, Anderson & Wanca. John Hancock Life Insurance Company (USA), Defendant, represented by Edwin G. Schallert -- egschall@debevoise.com -- at Debevoise & Plimpton, Christopher M. Reilly -- creilly@sloanewalsh.com -- at Sloane & Walsh & Myles W. McDonough -- mmcdonough@sloanewalsh.com -- at Sloane & Walsh, LLP. John Hancock Life & Health Insurance Company, Defendant, represented by Edwin G. Schallert, Debevoise & Plimpton, Christopher M. Reilly, Sloane & Walsh & Myles W. McDonough, Sloane & Walsh, LLP. JOHNSON & JOHNSON: Settles Hip Implant Suits for $3 Billion ----------------------------------------------------------- Jef Feeley and David Voreacos, writing for Bloomberg News, report that Johnson & Johnson, the world's biggest seller of health-care products, has discussed paying more than $3 billion to settle lawsuits over its recalled hip implants, according to five people familiar with the matter. J&J seeks to resolve as many as 11,500 lawsuits in the U.S. and has considered paying more than $300,000 per case, according to the people. Such a settlement would exceed $3 billion if most plaintiffs accept the terms, an amount 50 percent larger than that proposed in previous discussions. A $3 billion settlement would dwarf a 2001 accord Sulzer AG reached with patients who claimed that company's hip and knee implants were defective. Sulzer, a Winterthur, Switzerland-based pump maker, agreed to pay $1 billion to resolve those suits, then the largest settlement involving hip implants. Any accord would be affected by the outcome of seven product- liability trials between September and January, according to the people, who aren't authorized to make the negotiations public. "It's going to be a fascinating case to watch settle because of the level of complexity of the injuries and the amount of money that will be involved," said Bruce Cranner, a medical device defense lawyer not involved in the case. "You don't see a lot of mass-tort implant cases settle for a substantial amount of money." Replacement Surgeries The company is pushing to resolve U.S. cases by early next year, according to the people. J&J's DePuy unit recalled 93,000 implants in 2010, including 37,000 in the U.S., after more than 12 percent failed within five years. That rate is climbing, along with suits by patients blaming the chromium and cobalt devices for pain, metal debris and replacement surgeries. J&J, based in New Brunswick, New Jersey, has spent about $993 million on medical costs and informing patients and surgeons about the ASR recall, Lorie Gawreluk, a spokeswoman for DePuy, said in an e-mail. J&J set aside an undisclosed amount for litigation, which it increased before June 30, she said. "The company also continues to support ASR patients with a reimbursement program to address recall-related testing and treatment costs," she said. "Reports about a possible resolution of the litigation are premature and speculative, including any estimates of resolution amounts." Steven Skikos, a plaintiffs' lawyer leading efforts to prepare lawsuits against DePuy, said his group is preparing for jury trials, which include the first case in federal court. 'Dangerous Guess' "With the trials rapidly approaching, and our continuing efforts to obtain more information and data about the patients, it's easy to speculate about settlement," Mr. Skikos said in an e-mail. "However, any comment relating to settlement that does not come from the plaintiff's leadership, the court, or from the company itself remains premature, uninformed and a dangerous guess." J&J lost an $8.3 million verdict in the first trial over the ASR device and won the second. In the first case, a California jury in March awarded damages to a retired Montana prison guard. The panel also ruled the device was defectively designed, that DePuy properly warned of the risks, and that the company didn't owe punitive damages. DePuy is appealing. A Chicago jury ruled six weeks later for DePuy in rejecting a defective design claim by an Illinois nurse. Other Trials Seven other trials of lawsuits by plaintiffs blaming the ASR hips for injuries will help lawyers for both sides frame questions over liability and damages. The first is scheduled to begin Sept. 9 in federal court in Cleveland. U.S. District Judge David Katz is overseeing that lawsuit by Ann McCracken, 58, a resident of Rochester, New York, who needed two replacement surgeries known as revisions after her ASR implant. Judge Katz is overseeing about 8,000 federal cases consolidated before him for the pre-trial collection of evidence. About 2,000 cases are pending in the California Judicial Council Coordinated Proceeding before Judge Richard Kramer in San Francisco. Trials also are scheduled in state courts in San Francisco in October; in Hackensack, New Jersey, in October and January; in West Palm Beach, Florida, in November; in Chicago in December; and in Los Angeles in January. "DePuy believes the evidence to be presented at trial will show the company acted appropriately and responsibly," Ms. Gawreluk said. "The ASR hip system was properly designed, physicians were properly informed of the product's risks, and DePuy's actions concerning the product were appropriate." Broad Outline Lawyers for hip recipients are still reviewing more than 50 million pages of J&J documents and conducting pre-trial interviews of company officials and experts to prepare for those cases, Mr. Skikos said. While settlement talks continue, J&J and lawyers for hip claimants have agreed on the broad outline of a so-called "global settlement" covering all U.S. cases, the people said. In January, five people familiar with the talks had said J&J officials were willing to pay about $2 billion to resolve the cases. Lawyers for plaintiffs rejected that amount as too little, the people said. Any overall accord would compensate patients based on such factors as age, extent of injuries and whether they had one or more surgeries to replace defective implants, according to the people. Negotiators would likely rank those and other factors on a matrix or grid, the people said. "J&J's strategy will be to find a way to negotiate a grid to settle each of the claims based on five or six variables that could be plugged in and changed up or down to determine the value of any claim," said Mr. Cranner, a lawyer with the New Orleans- based law firm of Frilot LLC. He is past chairman of the Medical Liability and Health Care Law Committee of DRI, an organization of lawyers who represent corporations and insurers. Obstacles Remain Several obstacles to a final settlement still must be overcome, the people said. One includes the number of years that J&J may potentially have to pay future claims. Another is whether the settlement would include reimbursing Medicare for claims paid. A third is the amount of compensation for extreme medical cases, which include dual hip surgeries or cases where infection prompted long hospital stays, the people added. "There are a significant subset of clients who got very badly hurt by the device, and their injuries are much more than a simple revision," said Matthew Davis, a lawyer at Walkup Melodia Kelly & Schoenberger in San Francisco whose firm represents 270 ASR clients. "If those cases went to trial and there was a finding of liability, a jury would award them general damages in the seven figures," said Mr. Davis, who isn't involved in the negotiations. Alloy Used The J&J hips were made from a cobalt-and-chromium alloy used in two related models -- the ASR XL Acetabular System, and the ASR Hip Resurfacing System. In announcing its recall, J&J cited unpublished data from the U.K. showing that within five years, 13 percent of ASR XL hips failed and needed revisions, and 12 percent of the ASR Hip Resurfacing System failed. At the first trial in Los Angeles, lawyers for plaintiff Loren Kransky argued DePuy failed to test the device adequately before selling it in the U.S. in 2005, buried surgeon complaints of mounting failures, and studied a redesign of the ASR before scrapping that effort in 2008. Lawyers for patients claim that debris from the metal ball sliding against the metal cup causes tissue death around the joint and may increase the amount of metal ions in the bloodstream to harmful levels. J&J set up a help line for patients that is "available in dozens of countries and has served tens of thousands of callers," Ms. Gawreluk said. J&J runs a worldwide reimbursement program resulting in "thousands of payments to patients for testing and treatment of other out-of-pocket expenses." The McCracken DePuy case is McCracken v. DePuy, 11-dp-20485, U.S. District Court, Northern District of Ohio (Toledo). The consolidated federal case is In re DePuy Orthopedics Inc., ASR Hip Implant Products Liability Litigation, 10-MD-2197, U.S. District Court, Northern District of Ohio (Toledo). LABORATORY CORP: Continues to Defend "Jansky" Suit in California ---------------------------------------------------------------- Laboratory Corporation of America Holdings continues to defend itself from a class action lawsuit filed by Yvonne Jansky, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On June 7, 2012, the Company was served with a putative class action lawsuit, Yvonne Jansky v. Laboratory Corporation of America, et al., filed in the Superior Court of the State of California, County of San Francisco. The lawsuit alleges that the defendants committed unlawful and unfair business practices, and violated various other state laws by changing screening codes to diagnostic codes on laboratory test orders, thereby, resulting in customers being responsible for co-payments and other debts. The lawsuit seeks injunctive relief, actual and punitive damages, as well as recovery of attorney's fees, and legal expenses. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings -- http://www.labcorp.com/-- more commonly known as LabCorp, is an American S&P 500 company headquartered in Burlington, North Carolina. The Company operates one of the largest clinical laboratory networks in the world, with a United States network of 36 primary laboratories. LABORATORY CORP: Continues to Defend "Pepe" Suit in Massachusetts ----------------------------------------------------------------- Laboratory Corporation of America Holdings continues to defend itself against a class action lawsuit brought by Ann Baker Pepe, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On June 7, 2012, the Company was served with a putative class action lawsuit, Ann Baker Pepe v. Genzyme Corporation and Laboratory Corporation of America Holdings, filed in the United States District Court for the District of Massachusetts. The lawsuit alleges that the defendants failed to preserve DNA samples allegedly entrusted to the defendants and thereby breached a written agreement with plaintiff and violated state laws. The lawsuit seeks injunctive relief, actual, double and treble damages, as well as recovery of attorney's fees and legal expenses. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings -- http://www.labcorp.com/-- more commonly known as LabCorp, is an American S&P 500 company headquartered in Burlington, North Carolina. The Company operates one of the largest clinical laboratory networks in the world, with a United States network of 36 primary laboratories. LABORATORY CORP: Defends "Sandusky" Suit Alleging TCPA Violations ----------------------------------------------------------------- Laboratory Corporation of America Holdings continues to defend itself against a class action lawsuit alleging violations of the Telephone Consumer Protection Act, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On August 24, 2012, the Company was served with a putative class action lawsuit, Sandusky Wellness Center, LLC, et al. v. MEDTOX Scientific, Inc., et al., filed in the United States District Court for the District of Minnesota. The lawsuit alleges that on or about February 21, 2012, the defendants violated the federal Telephone Consumer Protection Act by sending unsolicited facsimiles to Plaintiff and more than 39 other recipients without the recipients' prior express invitation or permission. The lawsuit seeks actual damages or the sum of $0.0005 million for each violation, whichever is greater, and injunctive relief. The Company will vigorously defend the lawsuit. Laboratory Corporation of America Holdings -- http://www.labcorp.com/-- more commonly known as LabCorp, is an American S&P 500 company headquartered in Burlington, North Carolina. The Company operates one of the largest clinical laboratory networks in the world, with a United States network of 36 primary laboratories. LABORATORY CORP: Faces Suits Over Calif. Labor Code Violations -------------------------------------------------------------- Laboratory Corporation of America Holdings is facing two class action lawsuits alleging violations of California Labor Code, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. The Company is a defendant in two putative class actions related to overtime pay. On July 8, 2013, a putative class action, Christine Bohlander v. Laboratory Corporation of America, et al., was filed against the Company in the Superior Court of the State of California for the County of Solano, alleging on behalf of similarly situated phlebotomists that the Company failed to pay overtime, failed to provide meal and rest breaks, and committed other violations of the California Labor Code. The complaint seeks monetary damages, civil penalties, costs, injunctive relief, and attorney's fees. On July 8, 2013, a putative class action, Jemuel Andres, et al. v. Laboratory Corporation of America Holdings, was filed against the Company in the Superior Court of California for the County of Los Angeles, alleging on behalf of similarly situated couriers that the Company failed to pay overtime, failed to provide meal and rest breaks, and committed other violations of the California Labor Code. The complaint seeks monetary damages, civil penalties, costs, injunctive relief, and attorney's fees. The Company intends to vigorously defend both cases. Laboratory Corporation of America Holdings -- http://www.labcorp.com/-- more commonly known as LabCorp, is an American S&P 500 company headquartered in Burlington, North Carolina. The Company operates one of the largest clinical laboratory networks in the world, with a United States network of 36 primary laboratories. LEFT COAST: Recalls Good Health Natural Foods Over Gluten --------------------------------------------------------- Starting date: August 23, 2013 Type of communication: Recall Alert sub-type: Allergy Alert Subcategory: Allergen - Gluten Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Left Coast Naturals Distribution: Alberta, British Columbia, Saskatchewan Extent of the product distribution: Retail CFIA reference number: 8260 Affected products: Good Health Natural Foods Veggie Crinkle Chips Mixed Vegetables 199 g. with Best By Dates: Oct 26 2013; Nov 21, 2013; Nov 22, 2013; and Dec 17, 2013 LES ALIMENTS: Recalls Certain Nutty Bean Brand Chickpea Snacks -------------------------------------------------------------- Starting date: August 22, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Labelling Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Les Aliments Colinex Distribution: Ontario, Quebec Extent of the product distribution: Retail CFIA reference number: 8272 Affected products: -- Nutty Bean Chick PZ Premium Roasted Chickpea Snack Honey Roasted 56 or 57 grams with all packages bearing "gluten- free" and "nut-free" claims; -- Nutty Bean Chick PZ Premium Roasted Chickpea Snack Sesame Crunch 56 or 57 grams with all packages bearing "gluten- free" and "nut-free" claims; -- Nutty Bean Chick PZ Premium Roasted Chickpea Snack Sweet & Spicy Chipotle 56 or 57 grams with all packages bearing "gluten-free" and "nut-free" claims; -- Nutty Bean Chick PZ Premium Roasted Chickpea Snack Chai Vanilla 56 or 57 grams with all packages bearing "gluten- free" and "nut-free" claims; -- Nutty Bean Chick PZ Premium Roasted Chickpea Snack Fruit & Dark Chocolate Trail Mix 56 or 57 grams with all packages bearing "gluten-free" and "nut-free" claims; -- Nutty Bean Chick PZ - Premium Roasted Chickpea Snack Cinnamon Crunch 56 or 57 grams with all packages bearing "gluten-free" and "nut-free" claims; and -- Nutty Bean Chick PZ - Premium Roasted Chickpea Snack Sea Salt 56 or 57 grams with all packages bearing "gluten-free" and "nut-free" claims. LOBLAW COMPANIES: Recalls Sunspun Brand Chunk Light Tuna -------------------------------------------------------- Starting date: August 23, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Microbiological - Other Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Loblaw Companies Limited Distribution: National Extent of the product distribution: Retail CFIA reference number: 8179 Affected products: Sunspun Chunk Light Tuna Packed in Broth 1.88 kg. LOWE'S HIW: Court Certifies Class in Contractors' Suit ------------------------------------------------------ District Judge Jeffrey S. White granted a motion for class certification in the lawsuit captioned RONALD SHEPARD and HENRY ROMINES, on behalf of themselves and all other similarly situated, Plaintiffs, v. LOWE'S HIW, INC. and DOES 1-50, Defendants, NO. C 12-3893 JSW, (N.D. Cal.). The Plaintiff had sought class certification for the following class: All persons who installed products for Lowe's or performed services for Lowe's in the State of California and who were treated as independent contractors by Lowe's but over whom Lowe's exercised control and discretion in the performance of their installation services. The Court concluded, based on the current record as presented, that the Plaintiff is an adequate class representative and that Plaintiff's counsel will vigorously prosecute this action on behalf of the class. The Court continued the case management conference from August 23, 2013, at 9:00 a.m. to November 15, 2013 at 1:30 p.m. A joint case management statement will be filed no later than November 8, 2013. A copy of the District Court's August 19, 2013 Order is available at http://is.gd/7NOSgZ from Leagle.com. Ronald Shephard, Plaintiff, represented by Mark Cotton Molumphy -- mmolumphy@cpmlegal.com -- at Cotchett, Pitre & McCarthy LLP, Bryan Marshall Payne -- bpayne@cpmlegal.com -- at Cotchett Pitre and McCarthy LLP, Hester H Cheng -- hcheng@garciagurney.com -- at Garcia & Gurney, ALC, Jason M. Leviton -- Jason@blockesq.com -- at Block & Leviton LLP, Jeffrey C. Block -- jeff@blockesq.com -- at Block & Leviton LLP, Matthew Kendall Edling -- medling@cpmlegal.com -- at Cotchett, Pitre & McCarthy LLP & Scott A. Mays -- scott@blockesq.com -- at Block and Leviton LLP. Lowe's HIW, Inc., Defendant, represented by Phillip J. Eskenazi -- peskenazi@hunton.com -- at Hunton & Williams LLP, Emily Burkhardt Vicente -- ebvicente@hunton.com -- at Hunton and Williams LLP & Kirk Austin Hornbeck, Jr. -- khornbeck@hunton.com -- at Hunton & Williams LLP. MAGNA INTERNATIONAL: Court Dismisses Securities Class Action ------------------------------------------------------------ Magna International Inc. on Aug. 26 disclosed that the United States District Court, Southern District of New York has granted the Company's motion and dismissed the putative securities class action lawsuit in which Boilermaker-Blacksmith National Pension Trust acted as lead plaintiff. The lawsuit was originally filed in May 2012 against the Company, its Chief Executive Officer, Chief Financial Officer, as well as its founder. As a result of the Court's decision to dismiss the lawsuit "with prejudice", the claim cannot be re-filed. About Magna Magna International -- http://www.magna.com-- is a global automotive supplier with 314 manufacturing operations and 89 product development, engineering and sales centers in 29 countries. McKESSON CORP: Court Stays Proceedings in "Messih" Suit ------------------------------------------------------- MESSIH v. McKESSON CORP. is one of many cases involving the prescription diabetes drugs Avandia(R), Avandamet(R), and Avandaryl(R) currently pending in federal court. The Plaintiffs originally filed this case in the Superior Court for the County of San Francisco against McKesson Corporation, Smithkline Beecham Corporation d/b/a/Glaxosmithkline and numerous Doe defendants. The complaint alleges that plaintiffs were prescribed Avandia(R), and that they have suffered serious cardiovascular events such as heart attacks and congestive heart failure as a result of their use of that drug. On July 9, 2013, defendant Glaxosmithkline removed the action to the United States District Court, N.D. California, asserting diversity jurisdiction as well as jurisdiction pursuant to the Class Action Fairness Act, 28 U.S.C. Section 1332(d)(11). The Notice of Removal asserts that McKesson was fraudulently joined for a number of reasons, including that plaintiffs' state law claims against McKesson are preempted under PLIVA, Inc. v. Mensing, 131 S.Ct. 2567 (2011). On July 18, 2013, the Judicial Panel on Multidistrict Litigation issued a Conditional Transfer Order conditionally transferring this case to the MDL proceeding pending before Judge Cynthia Rufe, in the Eastern District of Pennsylvania, In re Avandia Marketing, Sales Practices and Products Liab. Litig., MDL No. 1871. Plaintiffs filed notices of oppositions to the Conditional Transfer Order. Presently before the Calif. Court are defendant Glaxosmithkline's motion to stay the action until the JPML resolves any dispute about transferability, and plaintiffs' motion for remand to state court. Defendant's motion to stay is scheduled for a hearing on August 30, 2013, and plaintiffs' motion for remand is scheduled for a hearing on September 6, 2013. Pursuant to Civil Local Rule 7-1(b), District Judge Susan Illston determined that these matters are appropriate for resolution without oral argument, and vacated the hearings. Judge Illston granted the Defendants' motion to stay all proceedings in this case pending a final decision on transfer by the Judicial Panel on Multidistrict Litigation. In the event the Panel does not transfer this action, the Court will rule on plaintiffs' motion for remand. Judge Illston said the Court finds that a stay will not prejudice the plaintiffs because the JPML's final decision on transfer is likely to be issued shortly. The case is SHUKRY MESSIH, et al., Plaintiffs, v. McKESSON CORP., et al., Defendants, NO. C 13-3155 SI, (N.D. Cal.) A copy of the District Court's August 19, 2013 Order is available at http://is.gd/NWk1WKfrom Leagle.com. Shukry Messih, Plaintiff, represented by Jessica You Lee -- PNapoli@NapoliBern.com -- at Napoli Bern Ripka Shkolnik & Associates LLP. Velma Harbeck, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Estella Soltz, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Rodney Watson, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Mary Anne Morse, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Jason Morse, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Phillip Morse, Jr., Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Sarah Morse, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Emily Morse, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Lubertha Nathaniel, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Gregory Morse, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Kimberly Stone, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Leeshun Nathaniel, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Johnny Slaughter, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Lynda Smart, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Virgil Smith, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Geraldine Smith, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Joan Sperduti, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Barbara Stoval, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Clarence Swan, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Paul Sykes, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Joyce Tarver Marks, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Judie Taylor, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Sylvia Lavern Thomas, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Janie Torres, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Naomi Trahan, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Mary Ann Trexler, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Willie Tutt, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. William Valentine, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Jose Vigil, Jr., Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Karl Vugrnick, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Willie Walker, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Gloria Jean Wallace, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Phillip Whiteside, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Sandra Wilkes, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Marcus Williams, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Elizabeth Williams, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. John Wise, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Thalia Wright, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. Tom Yurasits, Plaintiff, represented by Jessica You Lee, Napoli Bern Ripka Shkolnik & Associates LLP. McKesson Corporation, Defendant, represented by Steven J. Boranian, Reed Smith LLP. SmithKline Beachman Corporation, dba GlaxoSmithKline, Defendant, represented by Michael Kevin Brown -- mkbrown@reedsmith.com -- at Reed Smith LLP & Steven J. Boranian -- sboranian@reedsmith.com -- at Reed Smith LLP. GlaxoSmithKline LLC., Defendant, represented by Michael Kevin Brown, Reed Smith LLP, Sonja S. Weissman -- sweissman@reedsmith.com -- at Reed Smith LLP & Steven J. Boranian, Reed Smith LLP. MULTIMEDIA GAMES: Appeal in "Williams" Suit Remains Pending ----------------------------------------------------------- Multimedia Games Holding Company, Inc. and other defendants' appeal from a class certification order in the class action lawsuit initiated by Dollie Williams, et al., remains pending, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Dollie Williams, et al., v. Macon County Greyhound Park, Inc., et al., a civil action, was filed on March 8, 2010, in the United States District Court for the Middle District of Alabama, Eastern Division, against the Company and others. The plaintiffs, who claim to have been patrons of VictoryLand, allege that the Company participated in gambling operations that violated Alabama state law by supplying to VictoryLand purportedly unlawful electronic bingo machines played by the plaintiffs and seek recovery of the monies lost on all electronic bingo games played by the plaintiffs in the six months prior to the complaint under Ala. Code Sec. 8-1- 150(A). The plaintiffs have requested that the court certify the action as a class action. On March 16, 2012, Walter Bussey and two other named plaintiffs were voluntarily dismissed. On March 29, 2013, the court entered an order granting the plaintiffs' motion for class certification. On April 12, 2013, the defendants jointly filed a petition with the Eleventh Circuit Court of Appeals seeking permission to appeal the court's ruling on class certification. On June 18, 2013, the Eleventh Circuit Court of Appeals entered an order granting the petition to appeal. The Company's appellate brief was due on August 5, 2013. The Company continues to vigorously defend this matter. Given the inherent uncertainties in this litigation, however, the Company is unable to make any prediction as to the ultimate outcome. A finding in this case that electronic bingo was illegal in Alabama during the pertinent time frame could have adverse regulatory consequences for the Company in other jurisdictions. Austin, Texas-based Multimedia Games Holding Company, Inc. and its subsidiaries design, manufacture and supply innovative standalone and networked gaming systems to Native American and commercial casino operators in North America, domestic and selected international lottery operators, and commercial bingo gaming facility operators. MULTIMEDIA GAMES: Awaits Certification Bid Ruling in "Hardy" Suit ----------------------------------------------------------------- Multimedia Games Holding Company, Inc., is awaiting a court decision on the plaintiffs' motion for class certification in the lawsuit styled Ozetta Hardy v. Whitehall Gaming Center, LLC, et al., according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Ozetta Hardy v. Whitehall Gaming Center, LLC, et al., a civil action, was filed against Whitehall Gaming Center, LLC (an entity that does not exist), Cornerstone Community Outreach, Inc., and Freedom Trail Ventures, Ltd., in the Circuit Court of Lowndes County, Alabama. On June 3, 2010, the Company and other manufacturers were added. The plaintiffs, who claim to have been patrons of White Hall, allege that the Company participated in gambling operations that violated Alabama state law by supplying to White Hall purportedly unlawful electronic bingo machines played by the plaintiffs and seek recovery of the monies lost on all electronic bingo games played by the plaintiffs in the six months prior to the complaint based on Ala. Code, Sec 8-1-150(A). The plaintiffs have requested that the court certify the action as a class action. On July 2, 2010, the defendants removed the case to the United States District Court for the Middle District of Alabama, Northern Division. The court has not ruled on the plaintiffs' motion for class certification. The Company continues to vigorously defend this matter. Given the inherent uncertainties in this litigation, however, the Company is unable to make any prediction as to the ultimate outcome. A finding in this case that electronic bingo was illegal in Alabama during the pertinent time frame could have adverse regulatory consequences to the Company in other jurisdictions. Austin, Texas-based Multimedia Games Holding Company, Inc. and its subsidiaries design, manufacture and supply innovative standalone and networked gaming systems to Native American and commercial casino operators in North America, domestic and selected international lottery operators, and commercial bingo gaming facility operators. NVR INC: Continues to Defend Suits Over Salesmen's Overtime Wages ----------------------------------------------------------------- NVR, Inc., continues to defend itself against class action lawsuits brought by sales and marketing representatives over overtime wages, according to the Company's July 30, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On July 18, 2007, former and current employees filed lawsuits against the Company in the Court of Common Pleas in Allegheny County, Pennsylvania, and Hamilton County, Ohio, in Superior Court in Durham County, North Carolina, and in the Circuit Court in Montgomery County, Maryland, and on July 19, 2007, in the Superior Court in New Jersey, alleging that the Company incorrectly classified its sales and marketing representatives as being exempt from overtime wages. These lawsuits are similar in nature to another lawsuit filed on October 29, 2004, by another former employee in the United States District Court for the Western District of New York captioned Tracy v. NVR, Inc. The lawsuits filed in Ohio, Pennsylvania, Maryland, New Jersey and North Carolina have been stayed pending further developments in the Tracy action. The complaints seek injunctive relief, an award of unpaid wages, including fringe benefits, liquidated damages equal to the overtime wages allegedly due and not paid, attorney and other fees and interest, and where available, multiple damages. While the lawsuits were filed as purported class actions, none of them have been certified as such. On April 29, 2013, the Western District of New York ruled that the claims asserted in the Tracy case were not appropriate for class action treatment and dismissed a number of individuals who had filed consents to join that action from the case. It is now scheduled for a trial on the remaining individual plaintiff's claims to commence in October 2013. On May 29, 2013, attorneys representing the individuals dismissed from the Tracy action filed another lawsuit on behalf of those individuals in the New York Supreme Court for Monroe County captioned Anderson v. NVR, Inc. The Company removed the Anderson action to the Western District of New York on June 18, 2013. The Plaintiffs subsequently filed a motion to stay the Anderson action pending final disposition of the Tracy action, which the Company intends to oppose. The Company believes that its compensation practices in regard to sales and marketing representatives are entirely lawful and in compliance with two letter rulings from the United States Department of Labor ("DOL") issued in January 2007. Courts that have considered similar claims against other homebuilders have acknowledged the DOL's position that sales and marketing representatives were properly classified as exempt from overtime wages and the only court to have directly addressed the exempt status of such employees concluded that the DOL's position was valid. Accordingly, the Company has vigorously defended and intends to continue to vigorously defend these lawsuits. Because the Company is unable to determine the likelihood of an unfavorable outcome of this case, or the amount of damages, if any, the Company has not recorded any associated liabilities on the accompanying consolidated balance sheets. NVR, Inc.'s primary business is the construction and sale of single-family detached homes, townhomes and condominium buildings. The Company is headquartered in Reston, Virginia. QUALITY NATURAL: Recalls Limca Carbonated Beverage -------------------------------------------------- Starting date: August 23, 2013 Type of communication: Recall Alert sub-type: Notification Subcategory: Microbiological - Non harmful (Quality/Spoilage) Hazard classification: Class 3 Source of recall: Canadian Food Inspection Agency Recalling firm: Quality Natural Foods Canada Inc. Distribution: National Extent of the product distribution: Retail CFIA reference number: 8270 Affected products: Limca Sweetened Carbonated Beverage 300 ml. REACTION NUTRITION: Recalls LIVE CLINICAL Due to Undeclared Milk ---------------------------------------------------------------- Reaction Nutrition, LLC of Carnegie, PA is recalling LIVE CLINICAL 90 CAPS, because it contains undeclared milk. People who have an allergy or severe sensitivity to milk (bovine colostrum powder) run the risk of serious or life-threatening allergic reaction if they consume this product. The product is in a white plastic bottle with a white lid, the brand is Reaction Nutrition Clinical with a white and blue label. The lot number is PB0091512, expiration date is 08/2014 and UPC code is 283333900111. The lot number and expiration date is printed in red ink and located near the bottom of the bottle. LIVE was distributed to Retail supplement stores in the following States and Cities: -- AL Auburn; -- CA Barstow; -- CA Chula Vista; -- CA San Luis Obispo; -- CO Littleton; -- CT Hamden; -- FL Coral Springs; -- FL Pembroke Pines; -- ID Pocatello; -- IL Joliet; -- MD Glen Burnie; -- MD Baltimore; -- MI Lincoln Park; -- MO Columbia; -- MO Warrensburg; -- NE Omaha; -- NY East Meadow; -- NY Kingston OH Columbus OK Paoli; -- PA Wyomissing; -- RI Johnston; -- SC West Columbia; -- TX Dallas; and -- WV Parkersburg No illnesses have been reported to date. The recall was initiated after it was discovered that the ingredient (colostrum) is a known milk allergen and LIVE contains this ingredient without listing an allergy warning on the label. Consumers who have purchased Reaction Nutrition LIVE Clinical 90 caps are urged to return it to the place of purchase for a full refund. Consumers with questions may contact the company at 1-877-REACT77 between the hours of 10:00am and 6:00pm EST. SEARS ROEBUCK: 7th Circuit Reinstates Class Claims -------------------------------------------------- Elizabeth Warmerdam, writing for Courthouse News Service, reports that a recent Supreme Court ruling does not derail class-action claims against Sears, Roebuck & Co. over allegedly defective Kenmore washing machines, the 7th Circuit ruled. The federal appeals court in Chicago revisited, in light of the high court's March ruling in Comcast Corp. v. Behrend, its earlier decision to certify two classes of washing machine buyers. One group argued that defective front-loading washing machines caused mold buildup and foul odors; the other claimed the washing machines had faulty control units that caused the machine to shut down before the cycle had finished. The classes sued Sears under the breach-of-warranty laws of six states for Kenmore machines sold from 2001 to 2004. A federal judge certified the control-unit class but denied certification to the mold class, and the 7th Circuit reinstated the mold class last November. The Supreme Court sent the case back to the 7th Circuit in light of Comcast, in which the justices disbanded certification of a class action accusing the cable company of trying to monopolize the market for non-basic cable television. "Comcast holds that a damages suit cannot be certified to proceed as a class action unless the damages sought are the result of the class-wide injury that the suit alleges," the 7th Circuit's Judge Richard Posner explained. "Comcast was an antitrust suit, and the court said that 'if [the plaintiffs] prevail on their claims, they would be entitled only to damages resulting from reduced overbuilder competition, since that is the only theory of antitrust impact accepted for class- action treatment by the district court," Posner wrote for the three-judge panel. "Unlike the situation in Comcast, there is no possibility in this case that damages could be attributable to acts of the defendants that are not challenged on a class-wide basis; all members of the mold class attribute their damages to mold and all members of the control-unit class to a defect in the control unit," he wrote. Posner rejected Sears' comparison of washing machine design changes that may have affected the severity of the mold problems to the varying antitrust liability theories in Comcast. "It was not the existence of multiple theories in that case that precluded class certification; it was plaintiffs' failure to base all the damages they sought on the antitrust impact -- the injury -- of which the plaintiffs were complaining," Posner wrote. "In contrast, any buyer of a Kenmore washing machine who experienced a mold problem was harmed by a breach of warranty alleged in the complaint." He said the Supreme Court likely remanded the case, though it differed from Comcast, because of the emphasis that the majority placed on the requirement of proof of predominance at the class certification stage rather than during later stages in the litigation. "The court doesn't want a class action suit to drag on for years with the parties and the district judge trying to figure out whether it should have been certified," Posner wrote. "Because the class in Comcast was (in the view of the majority) seeking damages beyond those flowing from the theory of antitrust injury alleged by the plaintiffs, the possibility loomed that 'questions affecting only individual members' of the class would predominate over questions 'common to class members,' rather than . . . the reverse." He said predominance is not just a numbers game. "Sears thinks that predominance is determined simply by counting noses: that is, determining whether there are more common issues or more individual issues, regardless of relative importance," Posner wrote. "That's incorrect," he ruled. "An issue 'central to the validity of each one of the claims' in a class action, if it can be resolved 'in one stroke,' can justify class treatment." Though separate defects are alleged, Posner said the case "is really two class actions." "There is a single, central, common issue of liability: whether the Sears washing machine was defective," he wrote. The court reinstated its earlier ruling for the plaintiffs. A copy of the 11-page Decision dated Aug. 22, 2013, is available from Courthouse News Service at: http://is.gd/WfplLm SILZONE: Heart Implant Product Liability Class Action Dismissed --------------------------------------------------------------- Wagners of Wagners reports that a medical product liability class action was recently dismissed following a lengthy 138-day trial. The trial spanned over two years, from 2010 to 2011. The length and complication of the trial in reflected in the length of the detailed decision. The plaintiff and class members each had implanted mechanical prosthetic heart valves and annuloplasty rings with Silzone, which is a proprietary term for a coating comprising layers of titanium, palladium and an outer layer of metallic silver. This was applied to the polyester sewing cuff that surgeons use to attach a prosthetic heart valve to heart tissue. Silver is known as an antimicrobial in medicine and the Silzone coating was designed to inhibit the growth of the bacteria that can cause endocarditis, an infection that is a serious complication of heart valve surgery. The medical products were implanted in Canadian patients between September 1997 and January 21, 2000, when the defendants issued a worldwide recall of all Silzone-coated products. At that time, an ongoing randomized clinical trial called 'AVERT' revealed a small, but statistically significant increase in explants due to a medical complication known as paravalvular leak (PVL) in patients who had received a Silzone implant. It was alleged that the Defendants designed and manufactured the products such that they were unsafe for use. It was not disputed that the silver within the product can be poisonous to human cells. However, at the time that Silzone was developed, the silver had been shown to be effective against bacteria and safe to use in applications such as wound dressings, sutures and catheters. A few Canadian hospitals stopped using Silzone-coated devices in the year preceding the recall and in November 1999, the United Kingdom Medical Devices Agency (MDA) issued an Advice Notice to physicians warning about possible thromboembolic complications. The MDA took no other action, but within days of this notice, Australian and New Zealand regulators withdrew approvals for Silzone products in those countries. Health Canada and the United States Food and Drug Administration (FDA), as well as the Data Safety Monitoring Board (DSMB) for the AVERT clinical trial, were well-informed about this, but they did not express concerns about the safety of the valve or take any action. The claim against the defendants was based in negligence. The evidence focused mainly on two of its major elements: breach of duty causing injury and cause. The trial examined the defendants' conduct in designing, testing and marketing the Silzone valve and considered whether Silzone has an adverse effect on tissue healing and whether the risk of medical complications is greater for patients with Silzone valves. The plaintiffs needed to establish, on a balance of probabilities, a "but for" negligent act or omission linking the defendants' conduct to a class-wide injury in order to move the claims of each class member forward to individual hearings. They tried to show that the defendants failed to reasonably evaluate the utility and safety of Silzone before introducing it to the market and then failed in their duty to warn of its risks. A theme was that the Silzone valve was rushed to market in view of the pending expiry of the patent for the defendants' successful bi-leaflet valve. The plaintiffs advanced the theory that Silzone is a toxic substance that interferes with the cells involved in tissue healing and impairs the body's ability to properly incorporate the Silzone device into the heart, thereby causing or contributing to a variety of serious medical complications for Silzone patients. As medical complications can occur with all prosthetic heart valves, the trial judge focused on whether that heart valve puts patients at a materially increased risk of experiencing one or more of these complications. The defendants did not dispute that Silzone probably materially increased the risk of PVL for some patients for some period of time post implant. The explanation for this is unclear. However, the Court found that there was insufficient evidence to conclude that Silzone increased the risk of the other medical complications that were in issue. The judge found that the plaintiffs did not succeed in proving that Silzone has an adverse effect on tissue healing. Although there is a high duty of care imposed on a medical device manufacturer, the plaintiffs did not establish that the defendants failed to exercise a reasonable degree of care in the pre-market design and testing or in the post-market surveillance of Silzone- coated products that would be expected of a reasonable and prudent prosthetic heart valve manufacturer in similar circumstances. These findings, based primarily on a lack of evidence, led to the conclusion that the action must be dismissed. SOCIAL SERVICE: Court Transfers "Davis" Suit to Florida ------------------------------------------------------- Magistrate Judge Sheila K. Oberto issued an order granting a motion to change venue in LISA DAVIS, Plaintiffs, v. SOCIAL SERVICE COORDINATORS, INC., et al., Defendants, CASE NO. 1:10-CV- 02372-LJO-SKO, (E.D. Cal.). Defendant Social Service Coordinators, LLC filed the motion to change venue, or in the alternative, to dismiss on the basis of forum non conveniens. The motion was set to be heard on July 18, 2013, before U.S. District Judge Lawrence J. O'Neill, but was reset before Judge Oberto. Judge Oberto held that, "the convenience of the parties, the parties' contacts with the respective forums and their contacts as related to this case, the costs of the litigation, the ease of access to proof, and Florida's local interest all favor -- to some degree -- transfer to the Southern District of Florida. Taken as a whole, these factors outweigh Davis' choice of forum and this Court's familiarity with California law, which will apply to Davis' individual claims. For these reasons, the Court finds that transfer to the Southern District of Florida is appropriate." SSC's alternative motion to dismiss on the basis of forum non conveniens is denied as moot. A copy of the District Court's August 19, 2013 Order is available at http://is.gd/q3MOQIfrom Leagle.com. Lisa Davis, Plaintiff, represented by Alex M. Tomasevic -- atomasevic@nblaw.org -- at Nicholas & Butler, Mei-Ying Miye Imanaka -- mimanaka@nblaw.org -- at Nicholas & Butler, LLP, Richardson Craig Griswold -- rgriswold@griswoldlawsandiego.com -- at Griswold Law & Craig M. Nicholas -- cnicholas@nblaw.org -- at Nicholas & Butler. Social Service Coordinators, Inc., Defendant, represented by Mariah L. Passarelli -- mariah.passarelli@bipc.com -- at Buchanan Ingersoll & Rooney PC, Christian C Antkowiak -- christian.antkowiak@bipc.com -- at Buchanan Ingersoll & Rooney PC, Erin J McLaughlin -- erin.mclaughlin@bipc.com -- at Buchanan Ingersoll & Rooney PC & George Basara -- george.basara@bipc.com -- at Buchanan Ingersoll & Rooney PC. Social Services Coordinators, LLC, Defendant, represented by Christian C Antkowiak, Buchanan Ingersoll & Rooney PC & Erin J McLaughlin, Buchanan Ingersoll & Rooney PC. SOUTH WEST NOVA: Privacy Breach Class Action Can Proceed -------------------------------------------------------- CBC News reports that a class action lawsuit is going ahead against the South West Nova District Health Authority after it disclosed that an employee snooped through hundreds of medical files last year. The Roseway Hospital in Shelburne said an employee, who has since been fired, inappropriately accessed the medical information of 707 patients through a work computer. On Aug. 26 a Supreme Court judge said the case could proceed to trial. The class action suit will determine whether the South West Nova Authority is liable for the privacy breaches by its employee. Lawyer Ray Wagner said he's heard from more than 100 people. If the case succeeds, it could set the standard for similar cases in the future. "We'll be at the crest of the wave of this new tort as it moves across this country. We'll help formulate what that means and how we'll deal with compensation in the context of a class proceeding," said Mr. Wagner. The health authority issued an apology last year. It said it didn't involve the RCMP because it doesn't believe a criminal offence took place. Spokesman Fraser Mooney said the authority could not comment because the case is before the courts. The Nova Scotia Department of Health refused to comment for the same reason. SUBARU OF AMERICA: Sued for Alleged Defective Pedal Bracket ----------------------------------------------------------- Courthouse News Service reports Subaru made its Imprezas with defective pedal bracket assemblies in model years 2006-2013, a class action claims in Federal Court. The case, Robert Williams, Howard Kim, Paul Milligan, individually and on behalf of all others similarly situated, vs. SUBARU OF AMERICA INC., is pending in the United States District Court for the Central District of California. The Plaintiffs are represented by: Gretchen M. Nelson, Esq. Gabriel S. Barenfeld, Esq. KREINDLER & KREINDLER LLP 707 Wilshire Blvd, Suite 3600 Los Angeles, CA 90017 Tel: (213) 622-6469 Fax: (213) 622-6019 E-mail: gnelson@kreindler.com gbarenfeld@kreindler.com - and - Gregory F. Coleman, Esq. Mark E. Silvey, Esq. GREG COLEMAN LAW PC Bank of America Center 550 W. Main Avenue, Suite 600 Knoxville, TN 37902 Tel: (865) 247-0080 Fax: (865) 522-0049 E-mail: greg@gregcolemanlaw.com mark@gregcolemanlaw.com - and - Joseph M. Dunn, Esq. WIGINGTON RUMLEY DUNN & RITCH LLP 601 Howard Street San Antonio, TX 78212 Tel: (210) 487-7500 Fax: (210) 487-7501 E-mail: jdunn@wigrum.com - and - Edward A. Wallace, Esq. Amy E. Keller, Esq. WEXLER WALLACE LLP 55 West Monroe Street, Suite 3300 Chicago, IL 60603 Tel: (312) 346-2222 Fax: (312) 346-0022 E-mail: eaw@wexlerwallace.com aek@wexlerwallace.com - and - Charles Crueger, Esq. Erin Dickinson, Esq. HANSEN RIEDERER DICKINSON CRUEGER & REYNOLDS LLC 316 North Milwaukee Street, Suite 200 Milwaukee, WI 53202 Tel: (414) 455-7676 Fax: (414) 273-8476 E-mail: ccrueger@hrdclaw.com edickinson@hrdclaw.com A copy of the complaint is available from Courthouse News Service at http://is.gd/O8cNW1 UNITED STATES: Ordered to Pay $1.2BB Settlement to Black Farmers ---------------------------------------------------------------- Courthouse News Service reports the United States has 20 days to pay out the $1.2 billion settlement for the class of black farmers who missed the deadline to submit claims in the Pigford v. Glickman consent decree. U.S. District Judge Paul L. Friedman of the District of Columbia granted an unopposed motion for approval of distribution of funds from the Lead Class Counsel. Judge Friedman ordered the United States to direct a payment of $1,200,425,182 to the In re Black Farmers Discrimination Litigation QSF Account at SunTrust Bank. WELLS FARGO: 3 Suits Dismissed Without Leave to Amend ----------------------------------------------------- District Judge Susan Illston issued an order dismissing, without leave to amend, the cases captioned JENNIFER MURPHY, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. WELLS FARGO HOME MORTGAGE, et al., Defendants. RICHARD D'ALESSIO, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. WELLS FARGO HOME MORTGAGE, et al., Defendants. PAUL McDERMED, et al., individually and on behalf of all others similarly situated, Plaintiffs, v. WELLS FARGO HOME MORTGAGE, et al., Defendants, NOS. C 12-6228 SI, C 13-0999 SI, C 13-1407 SI, (N.D. Cal.). The plaintiffs in each of these putative class actions allege that they are class members in another, separate case, In re: Wachovia Corp. "Pick-A-Payment" Mortgage Marketing And Sales Practices Litigation, Case No. M:09-cv-2015-JF (N.D. Cal.), pending before Judge Jeremy Fogel. That MDL litigation represented the consolidation of various putative "Pick-A-Payment" class actions filed in various district courts around the country, including the first-filed action filed in this District, Mandrigues v. World Savings, Inc., et al., Case no. 5:07-cv-4497-JF (N.D. Cal.). The MDL litigation settled; a written class action settlement agreement (MDL-SA) was approved by Judge Fogel, and judgment was entered. The plaintiffs in these actions (represented by the same lawyers who represented the plaintiffs' classes in the MDL) now allege that the defendants in the MDL -- which are also the defendants here -- breached the terms of the MDL settlement agreement. Rather than, or in addition to, filing an enforcement action in Mandrigues or the In re: Wachovia Corp. MDL, plaintiffs filed three new class action complaints seeking injunctive and declaratory relief on claims that defendants are in breach of MDL- SA contract. According to Judge Illston, there is no question that the Murphy, D'Alessio, and McDermed Actions are covered by the MDL-SA's jurisdictional clause: each Action seeks judicial review of disputes involving Wells Fargo's adherence to the MDL-SA. Thus, the Court finds that the MDL-SA prevents it from adjudicating these matters. In addition to the improper claim splitting, deference to the parties' contract requires that this Court dismiss these actions with prejudice, she said. A copy of the District Court's August 19, 2013 Order is available at http://is.gd/Uzcg6pfrom Leagle.com. Jennifer Murphy, Plaintiff, represented by Jeffrey K Berns -- jberns@law111.com -- at Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Richard D'Alessio, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Chan C Pharn, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Christina Zako, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Paul McDermed, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Thomas Geremia, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Linda Geremia, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Julie A Young, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. David W Young, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Michael Lerner, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Kathy Lerner, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Omar F Bishr, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Ruth M Bishr, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Jeff Cory, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Jose Cruz, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Cynthia Biggs, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Jason Fisher, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Catherine Marsh, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Walter Falkowski, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Mary Slade, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Joseph Midgette, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Nathan Ranger, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Sherri Goldfinch, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Diana Burkett, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. John Burkett, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Carlton Hinkle, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Greg Slade, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Carrie Rosillo, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Katheryn Hinkle, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Julie McDermed, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. George Biggs, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP & Lee A. Weiss, Berns Weiss LLP. Duwarren Gibson, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP. Marie Marcantonio, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP. Francisca Ejale, Plaintiff, represented by Jeffrey K Berns, Berns Weiss LLP. Wells Fargo Home Mortgage, Defendant, represented by Stacie C. Knight -- sknight@winston.com -- at Winston & Strawn LLP, Tracy Thomas Cottingham, III -- tcottingham@winston.com -- at Winston & Strawn LLP, T. Thomas Cottingham -- tcottingham@winston.com -- at Winston & Strawn LLP, & Yaw-Jiun Wu -- gwu@afrct.com -- at Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. Wells Fargo Bank, N.A., Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP, & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. World Savings, Inc., Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP, & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. World Savings Bank, FSB, Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. Wachovia Mortgage, FSB, Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP, & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. Wachovia Corporation, Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP, & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. Golden West Finanical Corporation, Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP, & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. Wachovia Bank, FSB, Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP, & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. Wachovia Mortgage Corporation, Defendant, represented by Stacie C. Knight, Winston & Strawn LLP, Tracy Thomas Cottingham, III, Winston & Strawn LLP, T. Thomas Cottingham, Winston & Strawn LLP, & Yaw-Jiun Wu, Anglin, Flewelling, Rasmussen, Campbell & Trytten LLP. WESTLAKE FOODS: Recalls Cured Pork Products Due to Misbranding -------------------------------------------------------------- Westlake Foods, a Santa Ana, Calif., establishment, is recalling approximately 47,419 pounds of cured pork products because of misbranding and an undeclared allergen, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The products contain wheat, a known allergen which is not declared on the labels. The products subject to recall include: -- 11-lb. to 13-lb. cases of "Tay Ho Cured Pork Artificially Colored." This product was distributed for institutional use nationwide; -- 14-oz. packages of "Tay Ho Cured Pork Sausage With Pork Ears and Snouts." This product was distributed for retail sales nationwide; and -- 11-lb. to 13-lb. cases of "Don Caf� Cured Pork Meat and Binder Product Pork skin added." This product was distributed for institutional use in the Houston, Texas area. The products bear the establishment number "EST. 1627A" inside the USDA Mark of Inspection. They can be further identified by a case code "233001" through "213234." All products were produced between Jan. 1, 2013, and Aug. 22, 2013. The problem was discovered by an FSIS inspector during a routine label review. The problem is believed to have occurred due to a change in the company's spice mix, which was not reflected on the products' labels. FSIS and the company have received no reports of adverse reactions due to consumption of these products. Anyone concerned about a reaction should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. Media with questions about the recall should contact Jayce Yenson, Manager, at (714) 474-8828. Consumers with questions about the recall should contact Thuy Nguyen, Secretary, at (714) 973-2286. * Children's Clothing Among Recently Recalled Consumer Products --------------------------------------------------------------- The Associated Press reports that several types of children's clothing that fail to meet flame-resistance standards are among this week's recalled consumer products. Others include baby blankets that pose a choking hazard and defective tea kettles. BABY BLANKETS DETAILS: HALO SleepSack wearable blankets with pink satin flowers. They are white cotton with pink-edged ruffles and a pink satin rose embellishment on the front. These sack-shaped wearable blankets have cut-outs for the baby's arms, a zipper down the center, a sewn bottom and were sold in small and medium sizes. Only SleepSack products with GPU numbers 2701, 2781, 2886, 2887, 3007, 3035, and 3142 printed on a neck label under the primary neck label are included in the recall. They were sold at Babies R Us and www.babiesrus.com from December 2011 through July 2013. WHY: Petals from the floral embellishment on the blankets can detach, posing a choking hazard to infants. INCIDENTS: Six reports of the petals detaching from the blankets including one report of an infant found gagging on a detached petal. HOW MANY: About 27,000. FOR MORE: Call Halo Innovations at 866-819-8118, send email to halorecall@nrmsinc.com, or visit www.halosleep.com and click on the product recall link on the home page for more information. CHILDREN'S CLOTHING DETAILS: Apple Park children's two-piece loungewear sets from the Bamboo Loungewear Collection. They were sold in children's sizes 6 months through size 4. The sets consist of a long-sleeve shirt paired with matching full-length pants with elastic waistband. The collar, ankles, and wristbands are solid-color. The sets come in five animal character prints: pink "bunny," blue "cubby," white/green "ducky," violet "lamby" and green "monkey." ''GPU CO815" is printed on sewn labels at the pants waistline and along the shirt's bottom right side seam. WHY: The loungewear garments fail to meet children's sleepwear federal flammability standards which require sleepwear, including loungewear, to be either snug-fitting or flame resistant, posing a risk of burn injuries to children. INCIDENTS: None reported. HOW MANY: About 7,250. FOR MORE: Call Apple Park at 866-708-4695 or visit www.applepark.com and click on Recall Information at the bottom of the page for more information. TEA KETTLES DETAILS: Chefmate 2-quart tea kettles with a black enamel finish and a solid black resin handle. The Chefmate logo is stamped on the bottom of the aluminum tea kettle. They were sold at Target stores and at Target.com from January 2006 through May 2013. WHY: Steam can travel up the handle, or water can spill from the spout, posing a burn hazard to the consumer. In addition, the leaking steam can cause the kettle to fail to whistle. If water completely evaporates from the kettle, the aluminum bottom can melt onto the stove and pose a burn hazard. INCIDENTS: 13 reports of incidents, including five reports of steam traveling up the handle, three reports of hot water spilling from the spout, and a report of a hot handle. In addition, four consumers reported the tea kettle base melting onto the stove burner. No injuries have been reported. HOW MANY: About 716,000 in the U.S. and 1,400 in Canada. FOR MORE: Call Wilton Industries at 866-255-9237 or visit www.wilton.com and click on Recalls for more information. CHILDREN'S PAJAMAS DETAILS: Klever Kids children's 100-percent Pima cotton pajama sets and nightgowns sold in boys and girls sizes 2 through 8. The pajama sets include two-piece long-sleeve shirt and pant sets with an elastic waistband and two-piece short-sleeve shirt and short sets with an elastic waistband. The sets were sold in multiple prints including shark print, ballerinas, black and blue skeletons, flowers, pink with white polka dot pattern, a two-toned set with navy and blue striped monster print, and paisley print with green fabric on the edge. The nightgowns are short-sleeved with a gathered shoulder hem. The nightgowns were sold in multiple prints including ballerinas, pink with white polka dots, flowers and paisleys. All the garments have a printed label at the neck that reads "KleverKids live (Heart) laugh (Heart) love." Some of the pajamas sets are labeled as "flame resistant sleepwear" by a sewn-in garment label along the shirt's bottom right side seam. They were sold from September 2012 through March 2013. WHY: The pajamas fail to meet federal flammability standards for children's sleepwear, posing a risk of burn injuries to children. INCIDENTS: None reported. HOW MANY: About 7,000. FOR MORE: Call Klever Kids at 855-553-8375 or visit www.shopkleverkids.com and click on the Product Recall link on the bottom of the page for more information. * Lead Paint Manufacturers Attempt to Fend Off Liability Suit ------------------------------------------------------------- Paul M. Barrett, writing for Bloomberg Businessweek, reports that lead paint was once going to be the next asbestos or tobacco -- an illustration of how mass litigation could tame a rogue industry and, not incidentally, produce a bonanza for plaintiffs' lawyers. Mass lawsuits against makers of asbestos-laden products and cigarettes led to multibillion-dollar settlements in the 1990s. Lead-paint litigation launched during the same period, however, has mostly failed. Now, in what could be a finale to the lead-paint liability drama, industry defendants are fighting a 13-year-old case in a state court in San Jose. The results could be instructive for future attempts to hold large businesses accountable in court for products that turn out to be harmful. After years of preliminary skirmishes, the California trial finally began in mid-July. San Francisco, San Diego, Los Angeles County, and seven other communities are trying to force five manufacturers to pay for a $1 billion program to get rid of lead paint in millions of older private homes. The defendants -- Sherwin-Williams, BP's Atlantic Richfield unit, NL Industries, ConAgra Grocery Products, and DuPont -- began putting witnesses on the stand. The manufacturers seek to prove that the hazards of lead in paint, widely known since the federal government banned it for household use in 1978, weren't fully understood decades ago, when the products in question were sold. Manufacturers have fended off dozens of past suits filed by state and local governments and school districts. Among the reasons judges have deep-sixed the public-sector cases are: difficulties determining which companies made the lead pigment used in particular structures, hesitance to assign liability based strictly on defendants' market share, and unwillingness to treat the lead paint problem as one akin to industrial pollution (a "public nuisance" in legalese). Even though nuisance cases have failed in seven states -- Ohio, Rhode Island, Missouri, New Jersey, Illinois, New York, and Wisconsin -- a pair of heavyweight plaintiffs' firms are trying once more in California. Motley Rice of South Carolina and Cotchett Pitre & McCarthy of California are banking on California's more expansive nuisance law (at least as they see it) to serve as a springboard to victory. The plaintiffs stress a series of long-ago examples of what they claim are industry misrepresentations about the degree of danger of low-level exposure to lead. The suit attempts to portray paint makers as similar to the tobacco companies (and asbestos-products manufacturers) that actively sought to obfuscate the science connecting deadly illness to use of their products. The paint companies respond that, on the contrary, they did the right thing. "When interior lead-based paint was made more than 50 years ago, it was a legal product in great demand because it was washable and durable," an industry white paper asserts. "When health risks from chipping and peeling interior paint were first suspected in late 1948, industry worked closely with public health officials to investigate the risk. From funding 'no strings attached' research to voluntarily withdrawing lead-based interior paint decades ahead of federal action, the companies acted responsibly." A trio of public policy considerations color the California case. First, legislatively mandated public health programs in California have had enormous success at lowering lead levels in the blood of children. Second, the remedy the plaintiffs are seeking -- stripping away old lead paint -- actually is not what public health experts recommend. Instead, federal and state environmental and health officials generally urge that lead paint be left intact and maintained. If that course is followed, and children are prevented from eating old paint chips, there ordinarily isn't a health risk. Finally, California already requires landlords to address any existing lead-based paint dangers. It is the failure to maintain painted surfaces that creates an immediate health hazard. Those three considerations might be fashioned into arguments against using the courts to hold the manufacturers liable for a billion-dollar initiative that is arguably unnecessary and unwise. Still, Santa Clara County Superior Court Judge James Kleinberg has implied that the defendants shouldn't get cocky. With the proceeding underway in late July, Kleinberg, who is presiding over the case without a jury, urged both sides to settle. "If you're interested in gambling, go to Reno and Vegas," the judge said. "If you are interested in being intelligent, you'll have to settle this case now. This is not Rhode Island and is not Milwaukee." Since defendants had prevailed in Rhode Island and Milwaukee, this advice had to seem ominous to the paint manufacturers in Kleinberg's courtroom. Nevertheless, the defendants decided to take their chances. They must assume that by the time they're done putting on their evidence, the judge will see things their way. The trial is expected to continue for another two weeks. * NHTSA Issues New Rules Following Rise in Auto Recalls ------------------------------------------------------- Paul A. Eisenstein, writing for CNBC, reports that recalls have long been a way of life for automakers and buyers alike. But federal regulators have announced a critical new step to ensure that when a vehicle is subject to a safety order the necessary repairs actually get made. Issued on Aug. 14 by the National Highway Traffic Safety Administration, the new rules should prove a boon to owners and car shoppers alike as they make it easier to see if a vehicle has been subject to a recall and whether the problem was fixed. The government also will provide a searchable database. "Safety is our highest priority, and an informed consumer is one of our strongest allies in that effort," said Transportation Secretary Anthony Foxx. "Owners and potential buyers alike will soon be able to identify whether a safety recall for their specific vehicle is incomplete, using our free online search at SaferCar.gov." It's one of the rare instances where industry, consumer advocates and regulators are in agreement, and it comes at a time when recalls appear to be on the rise again after years of steady declines. "The goal here is to increase recall completion rates through greater consumer awareness," said the Alliance of Automobile Manufacturers, a trade group, noting that the industry supports the plan for providing safety recall information on automakers' websites. Under the new rule, all manufacturers will have to set up easy-to- access Web pages where people can enter a car, truck or crossover's Vehicle Identification Number to check its recall history. The rule also covers motorcycle manufacturers. NHTSA will require companies to update the information at least once a week. A study of the NHTSA database for 2012 found 16.2 million vehicles (including motorcycles and recreational vehicles) covered by safety campaigns, up 4.5% from 2011. Many safety experts have warned that the initial pace suggests the industry could see another increase in 2013, especially in light of some of the year's biggest recalls, which have generated numbers as high as the millions. That includes roughly 1.5 million Jeep products recalled in June because of a fire-safety issue, and a problem affecting 250,000 General Motors SUVs announced that month. Fire hazards have been a particularly big concern in the past year. Toyota announced a recall covering 7.5 million vehicles last fall because of faulty power window switches that could short out and catch fire. But defective airbags have also become a major problem, involving millions of vehicles since the beginning of 2012 alone, affecting makers including Honda, BMW and Nissan. Part of the problem is that, as automakers share an increasing number of components in a bid to reduce costs and complexity, a defect can affect a wide range of models and brands while often slipping under consumers' radar. NHTSA also orders a number of recalls each year for only a handful of vehicles that might have been produced on a specific day. Chevrolet recently issued a service order for just four Volt plug- in hybrids because of a software glitch in their electronic stability control. Complicating matters, some vehicles are subject to multiple recalls, which makes it even harder for the public to stay on top of safety matters. Last month Honda recalled some Fit models because an earlier repair had failed to address a fire hazard. The administration notes that only about 70% of the vehicles covered by the typical recall are repaired, including those vulnerable to the most serious safety problems. Even when makers repeatedly notify owners directly -- as Toyota did after a series of issues related to unintended acceleration in 2010 and 2011 -- the figure seldom climbs above 80%. Older vehicles have been scrapped in some cases, but many unrepaired autos remain on the road, a risk to current owners as well as to those who might buy the cars on the used market. Automakers will be given a year to comply with the new NHTSA guidelines. The Web databases will only be required to show vehicles that have not had repairs; those that have been fixed won't need to be listed. * NZ Seeks to Reassure Chinese Consumers After Botulism Scare ------------------------------------------------------------- Joe McDonald, writing for The Associated Press, reports that New Zealand's leaders are on a charm offensive to reassure Chinese consumers after a botulism scare threatened sales in a major market for New Zealand milk. China's demand for imported milk soared after domestic supplies in 2008 killed six babies and sickened thousands. That fit New Zealand's ambitions as a food supplier to booming Asian economies. But the announcement by Fonterra, the world's biggest dairy exporter, of contamination in an ingredient used in baby formula threw up a potentially damaging obstacle. New Zealand's response is being led by Prime Minister John Key, reflecting the importance of milk as a pillar of its exports and of China as the world's most promising consumer market. The South Pacific island nation announced a Cabinet-level investigation led by two ministers. Key told reporters once it is finished, he wants to fly to China to "look down the barrel of their television cameras" and "give consumers the confidence it has been fixed." On Aug. 22, Foreign Minister Murray McCully met with China's foreign minister and another Cabinet official and assured them of his government's "total and absolute commitment" to food quality. "I believe that New Zealand's unambiguous commitment to meeting quality standards in the export of food has been appropriately underlined," said Mr. McCully at a news conference. The response also reflects the emotional sensitivity of food supplies in China, which has suffered a string of scandals the caused sickness and deaths due to fake or shoddy food, milk and drugs. In 2008, some Chinese milk brands were found to be tainted with the chemical melamine, which can cause kidney damage and other injuries. Some suppliers added it to fool protein tests on watered-down supplies. Even today, imported milk from New Zealand or countries such as Australia and Germany has such a strong reputation that it commands up to three times the price of local brands in Chinese supermarkets. New Zealand accounts for up to 80 percent of China's imports of milk powder, much of it used in infant formula, according to Chen Lianfang, a senior dairy industry analyst at Beijing Orient Agribusiness Consultant Ltd. in Beijing. "New Zealand milk suppliers established a brand in China founded on the promise of safety and reliability," said Li Hong, senior partner in charge of China for FleishmanHillard, a communications consultancy, in an email. "Their job now is to recapture the premium position they once held," said Mr. Li. "In most cases, brands can be rehabilitated if the crisis is handled quickly and transparently." Mr. McCully promised "openness and transparency" for consumers as his government investigates. "We intend to make sure that there is good disclosure," he said. On the strength of demand for milk, China overtook Australia as New Zealand's biggest export market for the first time ever in the first quarter of this year. Chinese imports of milk powder from New Zealand in the first half of this year rose 34 percent over a year earlier to 371,000 tons. That growth was jeopardized after Fonterra announced Aug. 3 that hundreds of tons of infant formula, sports drinks and other products sold in seven countries could be tainted. Russia, China, Sri Lanka and other governments blocked or limited imports of New Zealand dairy products. Chinese media jumped on the scare. Some outlets, including People's Daily, the main Communist Party newspaper, pointed to it as proof foreign products weren't always safe. Some Chinese consumers have noted, however, that the New Zealand contamination was accidental, while the 2008 milk scandal and other Chinese incidents have been the result of intentional misbehavior. Fonterra, which has annual revenue of $16 billion, said the contamination occurred as the result of dirty pipes in a milk factory in May 2012. It said samples turned up a potential bacteria problem in March this year, but that it took until July 31 for testing to indicate the presence of the type of bacteria that could cause botulism. Mr. McCully said his government will watch closely as Fonterra tries to rebuild Chinese consumer confidence. "Fonterra has a job ahead of it rebuilding consumer confidence here. But I do not want to pretend that is a matter only for the company. This is something the New Zealand government will be watching very carefully as well," said Mr. McCully. "This is an export trade that is part of our international brand," he said. "All New Zealanders take that very seriously." In a separate incident, another New Zealand supplier said this week it found high levels of nitrate in lactoferrin powder shipped to China. The Chinese product quality agency impounded the powder and ordered suppliers of lactoferrin, an additive used in food supplements, to submit results of quality tests. Other governments are looking to China as a growing market for food, from Minnesota soybeans to French wine to Australian beef. Global and Chinese dairy brands are investing heavily to expand or upgrade production. Nestle Ltd. said last year it will spend 2.5 billion yuan ($395 million) to build a facility in Heilongjiang province in the northeast to supply fresh milk and train farm managers. The communist Beijing government is trying to build up its own global dairy competitors by encouraging mergers among its dozens of small producers. In infant formula, government plans call for shrinking the number of suppliers from 120 to 50 by 2018, with 10 brands accounting for 80 percent of the market, according to the business magazine Caijing. In June, the country's biggest domestic milk brand, Mengniu Dairy Co., offered $1.6 billion for a local infant-formula maker, Yashili International Holdings Ltd. Despite the latest scare, though, Chinese consumers are still so wary of domestic brands that New Zealand should be able to rebuild any lost market share, said Mr. Chen of Orient Agribusiness. "It could force some mothers to choose breast milk, but they won't turn to local brands," said Mr. Chen. * Three Dozen Food Label Class Actions Pending in Bay Area ---------------------------------------------------------- Paul M. Barrett, writing for Bloomberg Businessweek, reports that over the past 18 months, a group of plaintiffs' lawyers who got rich suing the tobacco industry have turned their litigious attention to what they hope will be the next big thing: challenges to healthy-sounding food labels they allege are misleading. Hailing from across the U.S., the lawyers decided to sue in federal courts in Northern California, where the consumer- protection laws are expansive and the jury pool nutrition- conscious. "Even the judges are calling this jurisdiction the Food Court," says Pierce Gore, the San Jose attorney serving as local coordinator for plaintiffs' firms in Mississippi, Texas, Tennessee, Illinois, and New York. So far three dozen suits seeking class-action status are pending in the Bay Area. The grocery list of targets includes Unilever's Ben & Jerry's ice cream, Chobani yogurt, Kraft's Trident gum, Hershey chocolates, Ocean Spray beverages, and Associated British Foods' Twinings teas. Unlike suits over cigarettes, these food label cases don't allege that anyone has been physically injured or addicted; nor do they suggest that the products in question are dangerous or defective. Instead they challenge the hawking of granola bars, fruit juice, and green tea as being good for you. Specifically, the suits say consumers are being tricked by such claims as "100 percent natural" and "no sugar added." "Hyper-technical does not begin to describe this litigation," says William Stern, a partner with Morrison & Foerster, a San Francisco-based corporate law firm seeking to have several of the suits dismissed on behalf of Unilever and other clients. "Trivial," Stern adds, "might be a better word." Food companies say their labels, read in their entirety, are accurate. Mr. Stern attributes the surge in label litigation to a settlement in 2009 by Dannon, the U.S. unit of Danone of France. Without admitting liability, Dannon agreed to pay $35 million to resolve a class action alleging it made false claims about the digestive benefits of Activia probiotic yogurt. "That got everyone's attention," Stern says. Dannon said at the time it had settled to avoid open- ended legal fees. Other marketers, however, are pursuing their day in the Food Court -- an expensive proposition. A pretrial fight alone over whether a judge should certify a class as appropriate can take 18 months to two years and cost a company $500,000 to $2 million, according to Mr. Stern. Corporations could save on attorney bills by making their labels less boastful, Mr. Gore says. Dannon, for instance, agreed to modify some of its claims about the advantages of probiotic products. "These suits are technical in the same way that the speed limit is technical," Mr. Gore says. "The rules are designed to protect everyone, and you have to follow them." The U.S. Food and Drug Administration writes labeling regulations but doesn't have sufficient resources to enforce them, he argues. So, plaintiffs' lawyers, Mr. Gore says, have stepped in to serve as self-appointed cops. Working with Mr. Gore are such veterans of the 1990s tobacco wars as the Barrett Law Group of Lexington, Miss., and the Provost Umphrey Law Firm of Beaumont, Tex. Corporate lobbyists in Washington have made the Food Court a centerpiece of their perennial campaign to rein in tort litigation. The business-funded American Tort Reform Association currently ranks the Northern District of California atop its list of "Judicial Hellholes" -- jurisdictions it calls particularly hostile to corporate interests. West Virginia and Madison County, Ill., are Nos. 2 and 3. "In every competitive marketplace that's ever existed, colorful and even exaggerated claims have been a largely harmless part of virtually every sales pitch," says Darren McKinney, the association's spokesman. The Food Court cases, he says, are the invention of plaintiffs' attorneys who imply that their own clients "are imbeciles who can't read the list of ingredients, which are right there on the label, along with the 'all natural' claims, or whatever the plaintiffs are all worked up about." Mr. Gore counters that the suits have cropped up "organically," as consumers realize labels may be exaggerated. "I resent the accusation that these cases are lawyer-generated," he says. Depositions of some of the lead clients suggest otherwise. Leon Khasin, a corporate security guard who lives in San Jose, sued Hershey in 2012 over its cocoa and Special Dark Kisses. Labels said the products were "a natural source of flavonol antioxidants." On its website, the candymaker states that "plant compounds, which act as antioxidants in foods, may reduce the risk of many kinds of illness, from heart disease to cancer." The suit drafted on Khasin's behalf by Gore and other plaintiffs' lawyers asserts that the Hershey labels are "unlawful because the FDA has not defined the characterization 'source' by regulation and thus such characterization may not be used in nutrient content claims." Asked during a deposition in March how he came to file suit, Mr. Khasin said his wife, then a secretary at Mr. Gore's law firm, Pratt & Associates, had recommended he talk to the attorney. "When you came to meet with Mr. Gore that day," Mr. Khasin was asked by the company's lawyer, Travis Tu of New York's Patterson Belknap Webb & Tyler, "did you have any desire to sue the Hershey company?" "No, I did not," answered Mr. Khasin, who also said he could not recall ever looking at a Hershey's label before filing the suit. Hershey has moved for pretrial summary judgment. A federal judge in San Jose has scheduled a hearing for November. ********* 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 * * *