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/raid1/www/Hosts/bankrupt/CAR_Public/131028.mbx C L A S S A C T I O N R E P O R T E R Monday, October 28, 2013, Vol. 15, No. 213 Headlines 99 CENTS: Court Enters Modified Opinion in "Pickett" Suit ADOBE SYSTEMS: Court Certifies Class of Technical Employees ACER AMERICA: Judge Slashes Attorneys' Fees in Class Action AFFINION GROUP: To Pay $30-Mil. in Consumer Refunds and Penalties AMERICAN HONDA: Agrees to Settle Spark Plug Defect Class Action APPLE INC: Michael Bromwich Chosen as Monitor in E-Book Case ATOSSA GENETICS: Issued Misleading Information, Suit Claims BARBRI: Ninth Circuit to Hear Dispute Over Class Action Legal Fees BJC HEALTHCARE: Nurses, Medical Personnel File OT Class Action BMW OF NORTH AMERICA: Sued Over Mini Cooper's Transmission Fluid CIGNA CORP: Judge Says Insurers No Liability in ERISA Class Action CME GROUP: Continues to Defend MF Global-Related Class Suit DELTA AIR: "Volodarskiy" Class Action Dismissed With Prejudice DOVER & FOX: Loses Bid to Dismiss Debt Collection Class Action DURAND GLASS: Court Denies Bid to Bar Defendant's Communication ESTES-COX: Recalls Red Rider and Helios Rockets FSL MANAGEMENT: Court Tosses Bid to Reconsider Class Cert. GENERAL MILLS: Plaintiff in Mislabeling Suit May Amend Complaint GOLD RESOURCE: Plaintiff to Appeal Dismissal of Securities Suit HANSEN MEDICAL: Awaits Nov. 21 Hearing on Final OK of Settlement INFINITOY INC: Recalls Softimals Toy Sets Due to Choking Hazard KOHL'S DEPARTMENT: Faces Suit Over Overtime Fees in California MARQUETTE, MI: Class Cert. Bid Denied in "LaPlante" Suit v. Jail MARRIOTT INT'L: Misleads "Kobe Beef" Customers, Suit Claims MERCEDES-BENZ: Court Won't Dismiss Suit Over M272/M273 Engines MICRO BIRD: Recalls 41 G5 Model School Buses MONSANTO CO: GMO Wheat Suits Consolidated Into One Case in Kansas NEW YORK, NY: Suit Over Quota for Summonses Gains Momentum NTS REALTY: Defends Consolidated Merger-Related Suit in Kentucky OBAMA FOR AMERICA: Motion for Class Cert. in TCPA Suit Denied OPTOTRAFFIC: Judge Certifies Speed Camera Class Action PACIFIC BIOSCIENCES: Awaits Final OK of Shareholder Suit Deal PACIFIC BIOSCIENCES: Awaits Ruling on Bid to Stay "Primo" Suit PILOT FLYING J: 150 Customers Opt Out of Class Action Settlement PROLOR BIOTECH: Defends Merger-Related Class Suit in Nevada REMINGTON ARMS: Faces Class Action Over Alleged Rifle Defects RESER'S FINE: Recalls Certain Salad Products RESERVE PRIMARY FUND: December 16 Settlement Fairness Hearing Set SAKS INC: Agrees to Settle Shareholder Class Action Over Merger TANGOE INC: Continues to Defend Consolidated Securities Suit TARSADIA HOTELS: Summary Judgment Ruling Entered in "Beaver" Suit TENDERTYME/1218216: Recalls Small Wonders Pacifiers TEVA PHARMACEUTICALS: WLF Urges Court to Rehear Propoxyphene Suit WINDSOR: Legal Bills Pile Up in Suit Over Bingo Licensing Fees WORCESTER TELEGRAM: Class Action Delays Boston Globe Sale ZIONS FIRST: Schwartz Urges Appeals Court to Allow Class Action * India's Section 245 of Companies Act Introduces Class Actions ********* 99 CENTS: Court Enters Modified Opinion in "Pickett" Suit --------------------------------------------------------- The Court of Appeals of California, Second District, Division Five, issued an order modifying an opinion entered in SHELLEY PICKETT, Plaintiff and Respondent, v. 99 CENTS ONLY STORES, Defendant and Appellant, NO. B246394, which opinion affirmed the trial court's order denying the defendant's motion to compel arbitration. The Court held that there is no change in judgment but the opinion filed on October 15, 2013, is modified as follows: The asterisk next to Judge Kumar's name on his separate concurring opinion should have a footnote following it that reads: Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. Ms. Pickett filed her representative action against defendant asserting a cause of action under the PAGA for alleged Labor Code violations and a derivative request for an injunction to prohibit future violations. She sought penalties on behalf of herself, as an aggrieved employee, as well as all current and former employees of the defendant, to address defendant's alleged violations of the Labor Code, specifically defendant's violations of section 1198 and Wage Order 7-2001, section 14. A copy of the Appeals Court's October 17, 2013 Order is available at http://is.gd/U89wJJfrom Leagle.com. Munger, Tolles & Olson, Malcolm A. Heinicke -- Malcolm.Heinicke@mto.com -- Katherine M. Forster -- Katherine.Forster@mto.com -- Puneet K. Sandhu -- Puneet.Sandhu@mto.com -- and Esther H. Sung -- Esther.Sung@mto.com -- for Defendant and Appellant. Lynch, Gilardi & Grummer, Arif Virji -- avirji@lgglaw.com -- and Gary M. Ittig -- gittig@lgglaw.com -- for Plaintiff and Respondent. ADOBE SYSTEMS: Court Certifies Class of Technical Employees ----------------------------------------------------------- U.S. District Court Judge Lucy H. Koh of the U.S. District Court for the Northern District of California on Oct. 24 granted plaintiffs' motion for certification in a consolidated class action lawsuit charging that large tech companies conspired to suppress the pay of technical, creative, and other salaried employees, including by agreeing not to actively recruit each other's employees. Plaintiffs Michael Devine, Mark Fichtner, Siddharth Hariharan, Brandon Marshall, and Daniel Stover, individually and on behalf of a class of all those similarly situated, allege antitrust claims against their former employers, Adobe Systems Inc., Apple Inc., Google Inc., Intel Corp., Intuit Inc., Lucasfilm Ltd., and Pixar. Plaintiffs allege that Defendants conspired to suppress, and actually did suppress, employee compensation to artificially low levels by agreeing not to solicit each other's employees in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. Sec. 1, and Section 4 of the Clayton Antitrust Act, 15 U.S.C. Sec. 15. On April 5, 2013, the Court granted in part and denied in part Plaintiffs' Motion for Class Certification with leave to amend. Currently before the Court is Plaintiffs' Supplemental Motion for Class Certification. Defendants filed an opposition, and Plaintiffs filed a reply. The Court held a hearing on Plaintiffs' Supplemental Motion for Class Certification on August 8, 2013. Having considered the parties' submissions, arguments, the relevant law, and the record in this case, the Court granted Plaintiffs' Supplemental Motion for Class Certification and certified Plaintiffs' proposed class of technical employees. "The Court finds that the Technical Class members' interests weigh in favor of having this case litigated as a class action. In addition, the nature of Defendants' alleged overarching conspiracy and the desirability of concentrating the litigation in one proceeding weigh heavily in favor of finding that class treatment is superior to other methods of adjudication of the controversy," Judge Koh held in an 86-page decision, portions of which were redacted to protect sensitive information. Commenting on the Court's order, Kelly M. Dermody of Lieff Cabraser Heimann & Bernstein, LLP, and counsel for the plaintiffs and class stated, "We appreciate the Court's careful and comprehensive review of the record and look forward to seeking justice for our clients at trial." Ms. Dermody can be contaced at kdermody@lchb.com for further information on the case. ACER AMERICA: Judge Slashes Attorneys' Fees in Class Action ----------------------------------------------------------- Benjamin Horney, Beth Winegarner and Bibeka Shrestha, writing for Law360, report that in a class action alleging computer maker Acer America Corp. sold defective laptops, a California federal judge slashed the attorneys' fees for the plaintiffs' lawyers by more than $1.5 million on Oct. 21, saying the lawyers billed too many hours and overstated the case's complexity. The plaintiffs' attorneys had requested more than $2.5 million based on 4,633 hours of work, which included examining the performance capabilities and specification of Acer's notebook computers and consumers' experiences with the computers. But U.S District Judge Jeffrey White chopped that number down to $943,000 on Oct. 21, saying that the amount the lawyers were seeking in fees was not well supported by the case's facts. "Upon review of the attorneys' declarations, the court finds that the attorneys were not efficient and that they spent excessive amounts of time on the various tasks listed," Judge White wrote. "Moreover it appears as though there was significant duplication of work between the three firms." Plaintiffs' attorney Daniel Warshaw told Law360 on Oct. 22 that while he's happy for his clients on the case's outcome, he does not agree with Judge White's decision to withhold such a large chunk of the fees, saying the lawyers are looking into the possible actions they can take. "We're disappointed with the court's view," Mr. Warshaw said. "We feel that we did very good work for the client base. We're evaluating our options." The case alleged that Acer's notebook computers didn't contain enough memory to run a preinstalled operating system, Microsoft Vista Home Premium. As a result, the suit alleged, Acer's notebooks ran slowly, crashed often and froze frequently. In their fees request, plaintiffs' attorneys Daniel Warshaw of Pearson Simon & Warshaw LLP, James J. Pizzirusso -- jpizzirusso@hausfeldllp.com -- of Hausfeld LLP and Jori Bloom Naegele of Gary Naegele & Theado LLC highlighted how the technical complexity of the case made it difficult to prevail against Acer and its in-house team of experts, engineers and technicians. Judge White disagreed, saying that while some aspects of the case were complicated, the work the lawyers needed to do was not. Because of this, he discounted the hourly billing rates they requested, agreeing to pay $175 per hour for paralegals, $350 for associates and up to $550 for senior partners. "The court notes that while the facts underlying plaintiffs' claims were technically complicated, the legal analysis regarding their warranty and misrepresentation claims was not complex," Judge White wrote. He also said that the hours the lawyers' claimed in their request were "exorbitant" and included hours spent preparing for hearings that were ultimately vacated. He concluded that 1,750 hours, or 38 percent of the total hours sought, was sufficient. Initially filed in March 2009, the case featured consumers accusing Acer America, the San Jose, Calif.-based subsidiary of the Taiwanese computer manufacturer, of selling defective laptops in violation of California and federal consumer laws, including the Magnuson-Moss Warranty Act. In April 2012, Judge White approved a $22.7 million settlement. Class counsel recouped $171,769, getting all but $984 of the costs they had sought. Mr. Warshaw had also sought $5,000 in incentive payments for the two named plaintiffs, Lora and Clay Wolf, to which Judge White ultimately awarded $2,000 each, citing a lack of evidence that they undertook "any great risk to either their finances or their reputation in bringing this action." Through the January settlement, the other class members are each eligible for a $10 check. They can also receive up to $100 in reimbursements for past repairs they can document. Mr. Warshaw said on Oct. 22 that, to date, there have been more than 47,000 claims made. The class is represented by Daniel L. Warshaw of Pearson Simon & Warshaw LLP, James J. Pizzirusso of Hausfeld LLP, and Jori Naegele of Gary Naegele & Theado LLC. Acer is represented by Reginald D. Steer -- rsteer@akingump.com -- and David C. Lawrence -- dlawrence@akingump.com -- of Akin Gump Strauss Hauer & Feld LLP. The case is Wolph et al. v. Acer America Corp., case number 3:09- cv-01314, in the U.S. District Court for the Northern District of California. AFFINION GROUP: To Pay $30-Mil. in Consumer Refunds and Penalties ----------------------------------------------------------------- Courthouse News Service reports that Affinion will pay $30 million in consumer refunds and penalties to settle federal complaints filed by 46 states and the District of Columbia, attorneys general said. The announcement came alongside filings that accused Affinion of tricking consumers into joining discount clubs and paying for such memberships. Connecticut-based Affinion and its subsidiaries Trilegiant and Webloyalty had been the subject of class actions in the past. They run various discount clubs and membership programs that provide consumers with credit monitoring, roadside assistance, discounted travel and other such services. The complaints said Affinion has well-known banks and retailers market its clubs and memberships to consumers immediately after a transaction. Consumers apparently complained en masse that Affinion charged them a monthly fee of $8 to $15.99 without their authorization or knowledge. Some reported trouble canceling the subscription or getting a refund, the complaints stated. Affinion agreed October 10, 2013, to pay $30 million in consumer refunds and penalties. Refunds will be eligible to consumers who believe Affinion charged them improperly. Affinion will also begin providing "clear and conspicuous information to consumers about its memberships, give them periodic reminders of their enrollment, and make it easier to cancel," a statement from the North Carolina attorney general said. That statement noted Affinion will also be barred from one of its most "troubling" practices: sending consumers what appeared to be checks in the mail. "When consumers endorsed and deposited the checks, they unknowingly authorized Affinion to enroll them in membership programs and bill them each month," the statement continues. "Consumers who shopped online were presented an offer from Affinion immediately after making a purchase. Affinion then enrolled and billed them for services using account and contact information shared by the retailer. AMERICAN HONDA: Agrees to Settle Spark Plug Defect Class Action --------------------------------------------------------------- Andrew Thurlow, writing for Automotive News, reports that American Honda Motor Co. has agreed to settle a class-action lawsuit over claims that it manufactured 1,593,755 defective vehicles that excessively burn oil and require frequent spark plug replacements. The settlement concerns all U.S. purchasers and lessees of 2008-12 Accord, 2008-13 Odyssey, 2009-13 Pilot, 2010-11 Accord Crosstour and 2012 Crosstour vehicles equipped with six-cylinder engines that have variable cylinder management. Accord vehicles with four-cylinder engines are excluded from the settlement. The original suit -- filed in March 2012 by plaintiffs Alex Soto and Vince Eagen -- claimed the vehicles contained a "systematic design defect that enables oil to enter into the engine's combustion chamber." The alleged defect led to "premature spark plug degradation and engine malfunction," court documents said. The plaintiffs claimed Honda hid the problem from consumers. Honda denied the allegation, despite receiving hundreds of online complaints on the National Highway Traffic Safety Administration Web site, and about 130 on carcomplaints.com concerning the 2008 Accord alone. Honda later issued a technical service bulletin notifying its technicians to check for the defect. The automaker did not issue a recall because a safety issue was not discovered. The majority of complaints allege that Honda said it was normal for a powertrain to burn a quart of oil every 1,000 miles. The suit claimed Honda refused to cover warranties for the vehicles and, instead, instructed customers to check their oil every time they get gas. Mr. Eagan claims that he had to add a quart of oil to his vehicle each month and had to replace his "prematurely fouled" spark plugs twice within 55,000 miles as a result of oil burning in the cylinders. Mr. Soto said in court documents that he routinely noticed carbon buildup on his exhaust pipe -- a sign that oil, and not just gasoline, is burning in the powertrain. Honda assured Soto that this, too, was normal, court documents show. Dave Sullivan, an analyst at research firm AutoPacific, said that today's emission requirements do not permit engines to burn oil. "It's too dirty," Mr. Sullivan said. "We're seeing cars go 10,000 miles now between oil changes. If there was a quart for every thousand miles you would need 10 quarts, and most cars don't have that many quarts in them." Mr. Sullivan said when he changed the oil in his Mazda6 that he may have lost "a cup or two of oil between changes, but that was over 7,500 miles. I think that's a negligible amount. That being said, there's no excuse for a quart every thousand miles." Mr. Sullivan said the last major episode that involved people complaining about oil burn was with the Mazda RX-8. "Instead of waiting for people to complain, [Mazda] was more proactive and . . . said 'even if you don't have a problem, you're going to have one so let's just fix it now.'" Honda declined to comment until after the case is granted final approval. The settlement was reached after U.S. District Judge Susan Illston declined the defendant's motion to force arbitration on the case in October 2012. The judge found that Honda was a third-party non-signatory to a contract and therefore may not compel arbitration under the terms of the contract. The preliminary settlement approval was given Oct. 9 by Judge Illston in San Francisco. The final fairness hearing, which is the last step in a class action settlement, is set for March 21. Under the conditions of the settlement, Honda agreed to extend the powertrain limited warranty for up to eight years after the original sale or lease of the vehicle. Honda also agreed not to oppose the counsel attorney fees as long as they do not exceed more than $800,000. Mr. Eagen is also asking the court to approve an incentive award of no more than $1,000 to compensate him for his time and effort on behalf of the settlement class, according to a copy of the class notice. APPLE INC: Michael Bromwich Chosen as Monitor in E-Book Case ------------------------------------------------------------ District Judge Denise L. Cote of the U.S. District Court for the Southern District of New York on Oct. 16 appointed Michael R. Bromwich -- http://is.gd/CPnkOQ-- Managing Principal of The Bromwich Group, as the External Monitor in United States of America v. Apple, Inc. et al., Case Number: 1:12-cv-02826-DLC (S.D.N.Y.). The ruling provides that, "On September 30, 2013, the Department of Justice and the Plaintiff States submitted for consideration the names of two well-qualified candidates to serve as the External Monitor (Monitor) provided for in Section VI of the September 5 Order Entering Permanent Injunction in this case. Having interviewed both candidates, it is clear that either one is capable of doing an exceptional job as Monitor. The Court is grateful to both candidates for their commitment to public service and for taking time to travel and interview with DOJ and the Court. It is hereby ORDERED that Michael Bromwich is appointed as Monitor. IT IS FURTHER ORDERED that Bernard A. Nigro will assist Mr. Bromwich in discharging his responsibilities." Mr. Bromwich has issued the following comment: "I am deeply honored to have been selected by the Court to serve as the monitor in this matter." ATOSSA GENETICS: Issued Misleading Information, Suit Claims ----------------------------------------------------------- Nicholas Cook, Individually and on Behalf of All Other Persons Similarly Situated v. Atossa Genetics, Inc., Steven C. Quay, Christopher Benjamin, Kyle Guse, Shu-Chih Chen, John Barnhart, Stephen J. Galli, Alexander Cross, H. Lawrence Remmel, Dawson James Securities, Inc., ViewTrade Securities, Inc., and Paulson Investment Company, Inc., Case No. 2:13-cv-01836-RSM (W.D. Wash., October 10, 2013) is a federal securities class action lawsuit filed on behalf of a class consisting of all persons other than the Defendants, who purchased or otherwise acquired Atossa shares between November 8, 2012, and October 4,2013, or who acquired Atossa shares pursuant or traceable to Atossa's false and misleading Registration Statement and Prospectus in connection with its November 8, 2012 initial public offering. Despite feigning compliance with the U.S. Food and Drug Administration's ("FDA's") rules and regulations, throughout the Class Period, Atossa in fact failed to comply with various FDA rules and regulations and misled investors regarding its compliance with FDA rules and regulations, including Section 510(k), Good Manufacturing Practices regulations, and fair and honest marketing practices, Mr. Cook alleges. He contends that as a result of the Defendants' wrongful acts and omissions, and the precipitous decline in the market value of the Company's common stock, he and other Class members have suffered significant losses and damages. Mr. Cook purchased Atossa shares at alleged artificially inflated prices during the Class Period and has been damaged upon the issuance of the alleged corrective disclosures. Atossa is a Delaware corporation headquartered in Seattle, Washington. Atossa is a development-stage healthcare company. The Company is focused on the commercialization of cellular and molecular diagnostic risk assessment products and related services for the detection of pre-cancerous conditions that could lead to breast cancer, and on the development of second-generation products and services. The Individual Defendants are directors and officers of the Company. Dawson James Securities, Inc., ViewTrade Securities, Inc. and Paulson Investment Company, Inc. were underwriters of the Company's IPO, and each assisted in the preparation and dissemination of Atossa's IPO materials. The Plaintiff is represented by: Dan Drachler, Esq. ZWERLING SCHACHTER & ZWERLING 1904 3rd Avenue, Suite 1030 Seattle, WA 98101 Telephone: (206) 223-2053 Facsimile: (206) 223-2053 E-mail: ddrachler@zsz.com BARBRI: Ninth Circuit to Hear Dispute Over Class Action Legal Fees ------------------------------------------------------------------ Amanda Bronstad, writing for The National Law Journal, reports that the U.S. Court of Appeals for the Ninth Circuit is expected once again to take up the long-running antitrust case involving Barbri -- this time, hearing whether objectors who successfully unraveled a key portion of the $49 million settlement should recover additional legal fees. Lawyers at Kendrick & Nutley in Pasadena, Calif., representing the five objectors, filed an opening brief on Aug. 19 seeking close to $1.8 million for successfully challenging fees granted to McGuireWoods, class counsel in the settlement with West Publishing Corp. and Kaplan Inc., publishers of the Barbri bar exam review course. U.S. District Judge Manuel Real granted $236,000 in fees and $1,700 in costs to Kendrick & Nutley. The fee request before the Ninth Circuit amounts to 20 percent of the nearly $9 million the objectors saved for the class by reducing McGuireWoods' fees, C. Benjamin Nutley of Kendrick & Nutley wrote. Should the Ninth Circuit reverse the fee award, Mr. Nutley asked that the appeals panel determine the amount rather than remand that issue. He cited the reversal of Judge Real's previous rulings and more than $10 million in settlement distributions being held up by his firm's appeal. "It isn't just for us," Mr. Nutley said. "It's a class case where they're holding up distribution until this last bit gets decided. Certainly, even our opponents would agree we want to get this thing resolved as soon as we can." In the alternative, Mr. Nutley asked the Ninth Circuit to remand the case to a different judge. Class counsel filed an opposition brief on Oct. 21, noting that Kendrick & Nutley did nothing to generate the settlement on which their fee request is based. "Like 'Monday Morning Quarterbacks' who contributed absolutely nothing to the underlying contentious litigation and the $49 million hard-fought settlement . . . Appellants seek compensation as if they generated for the Class the fee originally awarded to McGuireWoods. They did not," wrote Sidney Kanazawa -- skanazawa@mcguirewoods.com -- a Los Angeles partner at McGuireWoods. Kanazawa declined to comment. Kendrick & Nutley is expected to file a reply brief by Nov. 4. The class action alleged that law school students paid too much for Barbri review materials after West and Kaplan conspired to establish a monopoly in violation of the Sherman Act, the federal antitrust law. The Ninth Circuit remanded the case in 2009 and again in 2012. In last year's ruling, the panel upheld Judge Real's decision to reduce McGuireWoods' fees from $12 million to $500,000, citing the firm's "egregious" ethical violation in failing to disclose to class members incentive awards tied to the amount of the settlement. The panel also upheld denial of fees to objector attorneys, except for Kendrick & Nutley, which had alerted Real to the conflict. BJC HEALTHCARE: Nurses, Medical Personnel File OT Class Action -------------------------------------------------------------- KMOV reports that a class-action lawsuit has been filed in St. Louis Circuit Court on behalf of former and current nurses and medical personnel employed by BJC Healthcare System. The lawsuit, entitled Speraneo v. BJC Health System Inc., d/b/a BJC Healthcare, claims BJC did not properly pay many workers for overtime and other hours worked. BJC's timekeeping rounds down to the nearest quarter hour even though exact times employees clocked into work are electronically documented. This practice deprived employees of pay for compensable work time in violation of established work time regulations. BJC is also accused of automatically deducting time for meal breaks even though some employees, such as nurses, work through their break time and are not compensated. The lawsuit also alleges that BJC failed to properly compensate employees for shift differential bonuses and pay overtime compensation at statutorily required rates of pay. BMW OF NORTH AMERICA: Sued Over Mini Cooper's Transmission Fluid ---------------------------------------------------------------- Laurie Saltmeris, individually, and on behalf of other members of the general public similarly situated v. BMW of North America, LLC, a New Jersey limited liability company, and Bayerische Motoren Werke AG, a corporation organized under the laws of the Federal Republic of Germany, Case No. 2:13-cv-07560-R-FFM (C.D. Cal., October 11, 2013) is a consumer class action lawsuit concerning the alleged material omissions and affirmative misrepresentations made by the Defendants relating to the transmission fluid placed in the 6-speed Automatic Transmissions installed in certain Mini Cooper vehicles. BMW Group has affirmatively misrepresented to consumers that the Class Vehicles are equipped with "lifetime" transmission fluid that need not be replaced, Ms. Saltmeris asserts. However, she contends, BMW Group failed to disclose that neglecting to replace the transmission fluid -- per BMW Group's instructions -- leads to sudden and premature transmission failure in the Class Vehicles. Ms. Saltmeris is a citizen of California. BMW of North America, LLC is a New Jersey limited liability company headquartered in Woodcliff Lake, New Jersey. BMW of North America is responsible for the importation, distribution, marketing and sale of certain models of Mini Cooper. BMW of North America is a wholly owned subsidiary of BMW (US) Holding Corporation, a Delaware corporation, which is a wholly owned subsidiary of BMW AG. Bayerische Motoren Werke AG ("BMW AG") is a German corporation based in Munich. BMW AG designs and manufactures motor vehicles, parts and other products for sale in Europe and for export and sale throughout the world, including the Class Vehicles. The Plaintiff is represented by: Roland K. Tellis, Esq. Mark P. Pifko, Esq. Natasha Mehta, Esq. BARON AND BUDD, P.C. 15910 Ventura Boulevard, Suite 1600 Encino, CA 91436 Telephone: (818) 839-2333 Facsimile: (818) 986-9698 E-mail: rtellis@baronbudd.com MPifko@baronbudd.com nmehta@baronbudd.com CIGNA CORP: Judge Says Insurers No Liability in ERISA Class Action ------------------------------------------------------------------ Dan Packel and Ciaran McEvoy, writing for Law360, report that a Pennsylvania state judge on Oct. 21 threw out an effort by Cigna Corp. to force its excess insurers to cover liability arising from a national class action brought by the company's employees over benefit plan changes, ruling that coverage is barred by a fraud exemption. Philadelphia Court of Common Pleas Judge Albert Snite granted summary judgment to Executive Risk Indemnity Inc. and Nutmeg Insurance Co., finding that the district judge in the underlying federal action determined that the insurance giant had initially committed a fraud. The judge noted that the two excess insurers provided coverage that followed the terms of Lloyds of London, which provided coverage up to $50 million. "The Lloyds insurance policy, which the defendants followed, excludes coverage resulting from deliberately fraudulent acts by an assured. The district court's opinion was a final judgment that Cigna's actions were fraud, and therefore the Deliberately Fraudulent Acts exclusion in the defendants' insurance policies applies," Judge Snite said in his opinion. Cigna sued Executive Risk and Nutmeg, which formerly did business as The Hartford, in 2012, seeking a declaration that the insurers acted in bad faith by denying its claims. According to the complaint, Cigna has reached settlements with Lloyds over its primary coverage, along with four of its excess insurers. The two excess policies are each valued at $10 million, according to the complaint. The coverage dispute stems from a 2001 lawsuit in which current and former Cigna employees sued the company after it switched its traditionally defined benefit plan to a cash benefit plan, claiming the new plan provided them with less generous benefits and that Cigna's notice of the changes was improper. After the Second Circuit affirmed the 2008 trial court judgment against Cigna, which contained a liability opinion and a remedies opinion, the U.S. Supreme Court granted the insurer's petition to review the remedies opinion. In its 2011 decision, Cigna Corp. v. Amara, a majority of the high court held that plaintiffs had to show the alleged violation had actually injured them, but that to do so, they needed only to show harm and causation. But the court found that a separate ERISA section allowing equitable remedies, such as an order that changes be made to a plan, does authorize forms of relief similar to the order the district court entered, directing the lower court to revisit its findings on what constituted an appropriate remedy for the ERISA violations it found. After doing so, the Connecticut federal judge ordered Cigna to make the changes to its retirement plan and denied its bid to decertify the class of roughly 25,000 workers, saying Cigna's arguments hadn't been sufficiently changed to meet the requirements set forth by the court. In that ruling, from December 2012, U.S. District Judge Janet Bond Arterton found that Cigna had run afoul of labor laws by inadequately disclosing changes in the retirement plan that diminished the plaintiffs' pension benefits. Judge Arterton ordered that the plan be reformed and said Cigna should pay benefits accordingly. Judge Snite seized upon Judge Arterton's determination that Cigna had committed fraud, rejecting the company's argument that the 2008 trial court judgment is the original controlling decision on the company's liability. The ruling is the second major victory that Executive Risk has had against Cigna in the last several months. In July, the Pennsylvania Superior Court absolved the excess insurer of any obligation to indemnify the company for $140 million in settlements to doctors' class action claims for violations of the Racketeer Influenced and Corrupt Organizations Act and breach of contract. Representatives from both Cigna and its insurers did not immediately respond to a request for comment on Oct. 22. Cigna is represented by Francis Deasey -- fjdeasey@dmvnlaw.com -- and Ward Rivers -- warivers@dmvnlaw.com -- of Deasey Mahoney Valentini & North Ltd. The insurers are represented by Ronald Schiller -- rschiller@hangley.com -- and Daniel Layden -- dlayden@hangley.com -- of Hangley Aronchick Segal Pudlin & Schiller. The case is Cigna Corp. v. Executive Risk Indemnity Inc. et al, case No. 120203993 in the Court of Common Pleas of Philadelphia County. CME GROUP: Continues to Defend MF Global-Related Class Suit ----------------------------------------------------------- A number of lawsuits were filed in federal court in New York on behalf of all commodity account holders or customers of MF Global who had not received a return of 100% of their funds. These matters have been consolidated into a single action in federal court in New York, and a consolidated amended class action complaint was filed on November 5, 2012. The class action complaint alleges that CME violated the Commodity Exchange Act (CEA), aided and abetted violations of the CEA by other defendants, and aided and abetted a breach of fiduciary duty by certain officers and directors of MF Global. The class complaint also alleges that CME Group aided and abetted CME's violation of the CEA. The complaint does not allege the amount of damages sought, but rather seeks compensatory and exemplary damages to be determined at trial. Based on the initial analysis of the class complaint, the company believes that it has strong legal and factual defenses to the claims. Given that this matter is in the very early stage, at this time the company is unable to estimate the reasonably possible loss or range of reasonably possible loss in the unlikely event it was found to be liable in this matter. No further updates were reported in the Company's August 9, 2013, Form 10-Q/A filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Headquartered in Chicago, Illinois, CME Group Inc. -- http://www.cmegroup.com/-- formerly Chicago Mercantile Exchange Holdings Inc., offers access to asset classes from a single electronic trading platform and trading floors in Chicago and New York City. The Company offers futures and options on futures based on interest rates, equity indexes, foreign exchange, energy, agricultural commodities, metals, and alternative investment products, such as weather and real estate. DELTA AIR: "Volodarskiy" Class Action Dismissed With Prejudice -------------------------------------------------------------- Gennadiy Volodarskiy, Oxana Volodarskaya, and Richard Cohen brought a putative class action lawsuit against Delta Air Lines for Delta's alleged failure to comply with Regulation No. 261/2004 of the European Parliament and European Council (EU 261). In their original complaint, the Volodarskiys asserted an Illinois breach- of-contract claim against Delta and alleged that EU 261 was incorporated into Delta's International Conditions of Carriage. In October 2012, the Court held that EU 261 was not incorporated into the contract and dismissed Plaintiffs' first complaint for failure to state a claim. The Volodarskiys, now joined by Richard Cohen, have since filed an amended complaint, abandoning their breach-of-contract claim and instead raising a direct claim under EU 261. Delta now moves to dismiss Plaintiffs' amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In an October 16, 2013 Memorandum Opinion and Order available at http://is.gd/idIDG0from Leagle.com, District Judge Edmond E. Chang rules that EU 261 does not provide a private right of action that can be enforced in courts outside the EU. Therefore, the Court grants Delta's motion to dismiss Plaintiffs' First Amended Complaint, this time with prejudice in light of the two failed attempts to state a claim. The case is GENNADIY VOLODARSKIY and OXANA VOLODARSKAYA on behalf of themselves and their minor children, and RICHARD COHEN on behalf of himself, and all others similarly situated, Plaintiffs, v. DELTA AIR LINES, INC., Defendant, NO. 11 C 00782, (N.D. Ill.). DOVER & FOX: Loses Bid to Dismiss Debt Collection Class Action -------------------------------------------------------------- Jeremy Heallen, writing for Law360, reports that a Texas federal judge Oct. 21 denied Dover & Fox PC's bid to duck a putative class action alleging unfair debt collection practices, saying the firm failed to defeat an allegation that it is a debt collector under federal law. U.S. District Judge Keith P. Ellison denied the firm's motion for summary judgment, ruling that "conclusory" statements offered by the firm's partners in affidavits about the limited scope of their debt collection practice were not enough to show that they are not subject to the Fair Debt Collection Practices Act. "The Fifth Circuit mandates a heavily fact-intensive inquiry to determine whether or not an individual or entity qualifies as a 'debt collector' under the FDCPA," Judge Ellison said in a 13-page opinion. "The parties have supplied the court with some evidence relevant to this inquiry. However, they have not come forward with enough to demonstrate conclusively that Dover & Fox is or is not properly classified as a 'debt collector' under the FDCPA as a matter of law; relevant and determinable factual issues remain open." Representatives for Dover & Fox were not immediately available for comment. Dover & Fox had hoped to beat the proposed class action by arguing that because debt collection constituted only 5 percent of its practice and that the volume of debt collection cases it handled was small compared with other firms, it did not qualify as a debt collector. Under the FDCPA, a debt collector generally is defined as a person or company "regularly" engaged in debt collection as their principal purpose of business. Citing Sixth Circuit cases, the firm said that its limited debt collection practice insulated it from the FDCPA's reach. But Judge Ellison disagreed, noting that the Fifth Circuit has ruled that a person may regularly collect debts even if debt collection is not the principal purpose of their business. "Thus, in the Fifth Circuit, 'no bright-line rule identifies when an attorney or law firm 'regularly' collects or attempts to collect debts, so courts must make this determination on a case- by-case basis,'" Judge Ellison said. That Dover & Fox does not have employees dedicated to debt collection may serve to show that debt collection is not Dover & Fox's principal purpose, but does not illustrate the volume or frequency of its debt collection activities, Judge Ellison said. Judge Ellison also said that although the firm sent only 38 collection letters to various consumers in the year leading up to the lawsuit, perhaps showing that the firm does not regularly engage in debt collection, that fact was not conclusive since discovery has not yet been completed and that the plaintiffs may uncover more debt collection activity. And the firm also lost its challenge to liability under the Texas Debt Collection Act, which Judge Ellison said defines debt collector more broadly than the FDCPA. Lynn and Deborah Kirkpatrick launched the suit against the firm earlier this year after they each received letters from the firm demanding repayment of an outstanding debt allegedly owed to City of Deer Park Federal Credit Union. Both letters threatened that if the pair failed to make good on their debt within 14 days, they would be hit with a collection lawsuit. But state and federal law requires that consumers be given 30 days to dispute the validity of any claimed debt, and the more imminent litigation threat "overshadowed" those legal protections, the Kirkpatricks claim in their suit. The Kirkpatricks are represented by Marshall Meyers and Noah Daniel Radbil of Weisberg & Meyers LLC Dover & Fox is represented by Harvey Lee Burns Jr. -- Harvey@GBAttorney.com -- of Giddens & Burns. The case is Kirkpatrick et al. v. Dover & Fox PC et al., case number 4:13-cv-00123, in the U.S. District Court for the Southern District of Texas. DURAND GLASS: Court Denies Bid to Bar Defendant's Communication --------------------------------------------------------------- CINDY BOBRYK, et al., Plaintiffs, v. DURAND GLASS MANUFACTURING COMPANY, INC., Defendant, CIVIL NO. 12-CV-5360 (NLH/JS), (D. N.J.), is before the Court on "Plaintiffs' Motion to Compel and Limit Defendant Durand Glass' and Counsel's Pre-Certification Communications with Putative Class Members". Plaintiffs seek to bar defendant from interviewing members of their putative class comprised of defendant's employees. Since the Defendant's conduct in the case is not misleading or coercive, Magistrate Judge Joel Schneider denies the Plaintiffs' request to bar Defendant's communications. The Court also denies Plaintiffs' requested curative relief to address Defendant's alleged misdeeds. A copy of the District Court's October 9, 2013 Opinion is available at http://is.gd/JxW1Ayfrom Leagle.com. ESTES-COX: Recalls Red Rider and Helios Rockets ----------------------------------------------- Starting date: October 23, 2013 Posting date: October 23, 2013 Type of communication: Consumer Product Recall Subcategory: Toys Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-36375 Affected products: Red Rider and Helios Almost Ready-to-Fly Model Rockets The recall involves the Red Rider Almost Ready-to-Fly model rocket and the Helios Almost Ready-to-Fly model rocket. The Red Rider rocket (item #2484) is 47 centimetres long, 34 millimetres in diameter and weighs 71 grams. The rocket has a white nose cone and tail section, red body tube and fins with a white Estes Red Rider decal on the side. The UPC for this rocket is 047776 024847 which is printed above the bar codes on the products' packaging. The Helios rocket (item #2487) is 46 centimetres long, 42 millimetres in diameter and weighs 95.6 grams. The rocket has a silver body tube, yellow nose cone and fin unit with a yellow Helios decal on the side. The UPCs for this rocket are 047776 024878 and 047760 024877. Both items are packaged in 4-color triangular shaped boxes about 10.2 centimetres wide x 38.1 centimetres tall. The item numbers are printed above the bar codes on the products' packaging. The date codes on the products are 3/14/13, 5/14/13, 5/24/13, 7/02/13, and 7/9/13. All other Red Rider and Helios rockets are not included in this recall. When flown with the new booster accessories being marketed for these rockets, the rocket's flight can become unstable causing the rocket to change direction while under thrust, posing a risk of impact injury to people nearby. Neither Health Canada nor Estes-Cox has received reports of incidents or injuries related to the use of the affected products in Canada. For some tips to help consumers choose safe toys and to help them keep children safe when they play with toys, see General Toy Safety Tips. Approximately, 180 units of the recalled products were sold in Canada. The recalled products were manufactured in China and sold from June 2013 through September 2013. Companies: Distributor Estes-Cox Corp. Penrose Colorado United STATES Consumers should immediately stop using the recalled rockets and contact Estes-Cox for instructions on receiving a replacement. FSL MANAGEMENT: Court Tosses Bid to Reconsider Class Cert. ---------------------------------------------------------- Plaintiffs in WHITLOCK v. FSL MANAGEMENT, LLC obtained class certification of wage and hour claims pursuant to Fed. R. Civ. P. 23(a) and (b)(3) on August 10, 2012. Before the Court is a motion by the Defendants for the Court to reconsider its class certification decision. Chief District Judge Joseph H. McKinley, Jr., denied the motion for reconsideration saying bifurcating the issues of liability and damages at trial will remedy any problems surrounding individualized proof of damages. The case is WILLIAM WHITLOCK, et al. PLAINTIFFS, v. FSL MANAGEMENT, LLC, et al. DEFENDANTS, CIVIL ACTION NO. 3:10CV-00562- JHM, (W.D. Ky.). A copy of the District Court's October 16, 2013 Memorandum Opinion and Order is available at http://is.gd/t1IUZN from Leagle.com. GENERAL MILLS: Plaintiff in Mislabeling Suit May Amend Complaint ---------------------------------------------------------------- Judge William H. Orrick of the United States District Court for the Northern District of California granted in part and denied part General Mills, Inc.'s motion to dismiss Gabriel Rojas' class action lawsuit with leave to amend, except with regard to his claims relating to Nature Valley Oats and Honey Crunchy Granola Bars and Nature Valley Dark Chocolate Peanut Butter Crunchy Granola Bars to the extent that any alleged misrepresentation is based on their wrappers and containers, which is denied. Mr. Rojas brings this putative class action against General Mills asserting that its use of the term "100% Natural" on various products is deceptive and misleading because of the alleged presence of genetically modified organisms ("GMOs"). General Mills moves to dismiss the First Amended Complaint ("FAC") in its entirety because it argues that the United States Food and Drug Administration ("FDA") has primary jurisdiction over the term "natural" and that Rojas fails to plead his causes of action with particularity as required by the Federal Rules of Civil Procedure. The Plaintiff has been given 30 days to amend his complaint. The Plaintiff is represented by: Angela Valentina Arango-Chaffin, Esq. LAW OFFICE OF ANGELA VALENTINA ARANGO-CHAFFIN 1455 Ocean Drive, Suite 811 Miami Beach, FL 33139 Telephone: (713) 818-2515 E-mail: angela@chaffinlawfirm.com - and - Benjamin Michael Lopatin, Esq. THE LAW OFFICES OF HOWARD W. RUBINSTEIN, P.A. One Embarcadero Center, Suite 500 San Francisco, CA 94111 Telephone: (888) 560-4480 Facsimile: (415) 692-6607 E-mail: blopatin@gmail.com - and - Larry De-Wayne Layfield, Esq. LAW OFFICE OF L. DEWAYNE LAYFIELD P.O. Box 3829 Beaumont, TX 77704-3829 Telephone: (409) 832-1891 Facsimile: (866) 280-3004 - and - Michael Robert Reese, Esq. REESE RICHMAN LLP 875 Avenue of the Americas, 18th Floor New York, NY 10001 Telephone: (212) 643-0500 Facsimile: (212) 253-4272 E-mail: mreese@reeserichman.com The Defendant is represented by: David T. Biderman, Esq. PERKINS COIE LLP Four Embarcadero Center, Suite 2400 San Francisco, CA 94111 Telephone: (415) 344-7000 Facsimile: (415) 344-7050 E-mail: dbiderman@perkinscoie.com - and - Breena Michelle Roos, Esq. Charles Christian Sipos, Esq. Susan Donnelly Fahringer, Esq. PERKINS COIE LLP 1201 Third Avenue, Suite 4800 Seattle, WA 98101 Telephone: (206) 359-6225 Facsimile: (206) 359-7225 E-mail: broos@perkinscoie.com csipos@perkinscoie.com SFahringer@perkinscoie.com Gabriel Rojas v. General Mills, Inc., Case No. 3:12-cv-05099-WHO, in the U.S. District Court for the Northern District of California (San Francisco). GOLD RESOURCE: Plaintiff to Appeal Dismissal of Securities Suit --------------------------------------------------------------- The plaintiff filed a notice that it intends to appeal the dismissal of the consolidated securities class action lawsuit against Gold Resource Corporation, according to the Company's August 9, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. A purported securities class action lawsuit filed against the Company on October 25, 2012, and subsequently captioned In re Gold Resource Corp. Securities Litigation, No.1:12-cv-02832 was pending in U.S. District Court for the District of Colorado. The complaint alleged violations of federal securities laws by the Company and certain of its officers and directors. On July 15, 2013, the federal district court granted the Company's motion to dismiss the lawsuit with prejudice. The plaintiff filed notice it intends to appeal the District Court's decision to the United States Court of Appeals for the Tenth Circuit. Gold Resource Corporation -- http://www.goldresourcecorp.com/-- is currently engaged in the exploration for and production of gold and silver in Mexico. The Company was organized in Colorado in 1998 and is headquartered in Colorado Springs. HANSEN MEDICAL: Awaits Nov. 21 Hearing on Final OK of Settlement ---------------------------------------------------------------- Hansen Medical, Inc., awaits the November 21, 2013 hearing on the final approval of its settlement of a consolidated securities class action lawsuit, according to the Company's August 9, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Following the Company's October 19, 2009 announcement that it would restate certain of its financial statements, a securities class action lawsuit was filed on October 23, 2009, in the United States District Court for the Northern District of California, naming the Company and certain of its now former officers. The lawsuit is captioned Curry v. Hansen Medical, Inc. et al., Case No. 09-05094. The complaint asserted claims for violation of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 on behalf of a putative class of purchasers of Hansen stock between May 1, 2008, and October 18, 2009, inclusive, and alleged, among other things, that defendants made false and/or misleading statements and/or failed to make disclosures regarding the Company's financial results and compliance with GAAP while improperly recognizing revenue; that these misstatements and/or nondisclosures resulted in overstatement of Company revenue and financial results and/or artificially inflated the Company's stock price; and that following the Company's October 19, 2009 announcement, the price of the Company's stock declined. On November 4, 2009, and November 13, 2009, substantively identical complaints were filed in the Northern District of California by other purported Hansen stockholders asserting the same claims on behalf of the same putative class of Hansen stockholders. The lawsuits are Livingstone v. Hansen Medical, Inc. et al., Case No. 09-05212, and Prenter v. Hansen Medical, Inc., et al., Case No. 09-05367. All three complaints sought certification as a class action and unspecified compensatory damages plus interest and attorneys fees. On December 22, 2009, two purported Hansen stockholders, Mina and Nader Farr, filed a joint application for appointment as lead plaintiffs and for consolidation of the three actions. On February 25, 2010, the Court issued an order granting Mina and Nader Farr's application for appointment as lead plaintiffs and consolidating the three securities class actions. On July 15, 2010, the Court entered an order granting lead plaintiffs' motion for leave to file a second amended complaint. The Lead plaintiffs' second amended complaint, in addition to alleging that shareholders suffered damages as a result of the decline in the Company's stock price following the October 19, 2009 announcement, also alleged that shareholders suffered additional damages as the result of share price declines on July 28, 2009, July 31, 2009, January 8, 2009, July 6, 2009, and August 4, 2009, all of which lead plaintiffs alleged were caused by the disclosure of what they claim was previously misrepresented information. The Defendants filed their motion to dismiss the second amended complaint on October 13, 2010. The Court granted the Defendants' motion to dismiss with leave to amend on August 25, 2011. The Plaintiffs' third amended complaint was filed on October 18, 2011. The Defendants filed their motions to dismiss on January 9, 2012. On August 10, 2012, the Court denied in part and granted in part Defendants' motions to dismiss. On January 4, 2013, the lead plaintiffs sought leave to amend their complaint to add certain of Hansen's current and former directors and Hansen's former auditor. Hansen filed an opposition to lead plaintiffs' motion on February 11, 2013. On May 9, 2013, the parties entered a stipulation of settlement pursuant to which the plaintiffs will receive an aggregate of $8.5 million, $4 million of which will be funded in cash by the Company's insurer and other sources. The Company will fund the remaining portion by issuing $4.25 million worth of the Company's common stock, the number of shares to be determined based on the average closing price of the common stock for the 10 trading days preceding final Court approval of the settlement of the class action, and paying $250,000 in cash. The Company recorded a loss on litigation settlement of $4.5 million in its first quarter ended March 31, 2013. A corresponding liability is included in the accompanying condensed consolidated balance sheet as of June 30, 2013. The settlement is subject to Court approval. On July 25, 2013, the Court granted preliminary approval of the settlement and scheduled a hearing on November 21, 2013, at which the Company expects the Court will grant final approval. Hansen Medical, Inc., based in Mountain View, California, is the global leader in intravascular robotics, developing products and technology designed to enable the accurate positioning, manipulation and control of catheters and catheter-based technologies. INFINITOY INC: Recalls Softimals Toy Sets Due to Choking Hazard --------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Infinitoy, Inc., San Mateo, Calif., announced a voluntary recall of about 7,134 units of Building Toy Playsets. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The plastic hats found on playset figures pose a choking/aspiration hazard for children. CPSC is aware of one incident in which an 18-month-old child placed a hat in their mouth and started to gag/choke but the toy was removed. No injuries have been reported Infinitoy Inc. is recalling the Super Safari Set model #30025 and the Deluxe Circus Train Set model #30040. The model number can be found on the back of the box in the lower right corner. The sets come in a white box with "Softimals. Build, Play, Repeat" and "Ages 1 1/2 to 5" printed in a colorful font on the front and back of the package. The sets have numerous plastic pieces that can be connected and fit together to build a vehicle pulling cars with a hippo, giraffe, zebra and other animals. The drivers of the lead vehicles, Safari Sam and Mighty Mike, have removable blue or yellow plastic hats. Pictures of the recalled products are available at: http://is.gd/GYsrKu The recalled products were manufactured in Italy and sold at specialty toy stores nationwide and online at Amazon.com and Mindware.com from September 2012 to September 2013 for about $25 and $40. Consumers should immediately remove the plastic hat from Safari Sam and Mighty Mike and contact Infinitoy Inc., to exchange the hat for a free replacement figure. KOHL'S DEPARTMENT: Faces Suit Over Overtime Fees in California -------------------------------------------------------------- Courthouse News Service reports that Kohl's Department Stores stiff workers for overtime, citing a class action lawsuit filed in the California Superior Court for San Bernardino County. MARQUETTE, MI: Class Cert. Bid Denied in "LaPlante" Suit v. Jail ---------------------------------------------------------------- The events giving rise to the complaint LaPLANTE v. LOVELACE occurred while the plaintiff was incarcerated at the Marquette County Jail (MCJ) from September 8, 2010 through February 4, 2011. In his pro se amended complaint, Plaintiff sues the Marquette County Sheriff's Department, Marquette County Sheriff Michael Lovelace, Undersheriff Jack Schneider and the following MCJ employees: Sergeant Brian Steede, Corporal (Unknown) Osbourn, Officer (Unknown) Rataske, Sergeant (unknown) Sides, Corporal (Unknown) Harrington, Officer (Unknown) Bradbury, Nurse Joe Wilcox, Corporal A. Norberg, Corporal Jason Kangas, Deputy A. Kemper, Deputy K. Carlson, Deputy D. Speaker, Deputy Gema Cowporthwait, Deputy D. DeChambeau, Deputy K. Canull, Head Cook (Unknown) Bart, Jail Administrator Gregg Gustafson, Corporal Jeffrey Savola, Sergeant Shelly Simula, Officer Christopher Reynolds, Officer Mandie Haile, "Jon/Jane Doe -- Accounting Personnel," "Jon Doe -- Lobby Officer" and "Jon/Jane Doe -- Certified Nutritionalist [sic]." Plaintiff also sues Doctor John Lehtinen, Health Professional Limited, CBM Food Service, Keefe Supply Company and Evercom Telephone Comany. Plaintiff raises a long list of claims concerning the conditions of confinement during his five-month stay at MCJ. He seeks declaratory and injunctive relief, as well as monetary damages. Having conducted the review required by the Prison Litigation Reform Act, District Judge Robert Holmes Bell ruled that Defendants Schneider, Osbourn, Rataske, Sides, Bradbury, "Jon/Jane Doe -- Accounting Personnel," Keefe Supply Company, Evercom Telephone Company, Norberg, Kangas, Kemper, Carlson, Speaker, Cowporthwait, DeChambeau, Canull, "Jon Doe -- Lobby Officer," Bart, CBM Food Service, "Jon/Jane Doe -- Certified Nutritionalist [sic]," Gustafson, Savola, Simula, Reynolds and Health Professional Limited will be dismissed for failure to state a claim pursuant to 28 U.S.C. Sections 1915(e)(2) and 1915A(b), and 42 U.S.C. Section 1997e(c). The Court ordered service of the following claims against the remaining Defendants: (1) Plaintiff's Eighth Amendment claim against Defendants Wilcox and Lehtinen regarding denial of medical treatment; (2) Plaintiff's First Amendment claim against Defendants Haile and Harrington regarding denial of access to religious services; and (3) Plaintiff's First Amendment claim against Defendants Steede, Lovelace and Marquette County concerning the policy prohibiting prisoners from ordering books from outside the facility. The Court also denied Plaintiff's motions to amend and for class certification. The case is WILLIAM TODD LaPLANTE, Plaintiff, v. MICHAEL LOVELACE et al., Defendants, CASE NO. 2:13-CV-32, (W.D. Mich.). A copy of the District Court's October 9, 2013 Opinion is available at http://is.gd/y4DoeOfrom Leagle.com. MARRIOTT INT'L: Misleads "Kobe Beef" Customers, Suit Claims ----------------------------------------------------------- Anthony Schittino V. Marriott International, Inc., Case No. 2013- CH-23202 (Ill. Cir. Ct., Cook Cty., October 11, 2013) seeks to end Marriott's alleged unlawful practice of marketing and selling to its paying customers and patrons "Kobe beef" and then providing cheaper and inferior forms of beef. For several years now, Marriott has duped its customers into paying premium prices for non-premium beef, Mr. Schittino asserts. He contends that knowing that "Kobe beef" describes a particularly sought after beef product originating from Japan, and that Marriott's beef was/is something far different, Marriott has consistently and systematically misrepresented the quality and origin of its beef to enable it to collect premium prices to which it was/is not entitled. Kobe beef is only available from Japan. Because of its unusual and distinctive qualities and international reputation, Kobe beef sells for a significant premium over other forms of beef. Mr. Schittino is a resident of Cook County, Illinois. Marriott International, Inc. is a Delaware corporation that owns, manages and operates hotels and related dining services throughout the world, including within Cook County, Illinois. At its hotels, Marriott sells items labeled and described as being made from "Kobe beef." The Plaintiff is represented by: William J. Ryan, Esq. Seth R. Yohalem, Esq. SCANDAGLIA & RYAN 55 E. Monroe Street, Suite 3440 Chicago, IL 60603 Telephone: (312) 580-2020 E-mail: wryan@scandagliaryan.com syohalem@scandagliaryan.com - and - Kevin I. Shenkman, Esq. SHENKMAN & HUGHES 28905 Wight Rd. Malibu, CA 90265 Telephone: (310) 457-0970 E-mail: kshenkman@shenkmanhughes.com MERCEDES-BENZ: Court Won't Dismiss Suit Over M272/M273 Engines -------------------------------------------------------------- Judge Thelton E. Henderson of the U.S. District Court for the Northern District of California refused to dismiss a class action lawsuit commenced by Majeed Seifi and Tracey Deakin against Mercedes-Benz USA, LLC. The Plaintiffs assert claims on behalf of themselves and a proposed class of "owners and lessees within California of Mercedes vehicles equipped with either the M272 or the M273 engines" bearing certain serial numbers. The Plaintiffs allege that these engines contain gears made of sintered steel alloy that wear out prematurely, causing their engines to misfire, which poses a safety concern and necessitates major repairs. The Plaintiffs are represented by: Roy Arie Katriel, Esq. THE KATRIEL LAW FIRM, P.L.L.C. 1101 30th Street, NW, Suite 500 Washington, DC 20007 Telephone: (202) 625-4342 E-mail: rak@katriellaw.com - and - Gary S. Graifman, Esq. KANTROWITZ GOLDHAMER & GRAIFMAN, P.C. 747 Chestnut Ridge Road, Suite 200 Chestnut Ridge, NY 10977 Telephone: (845) 356-2570 E-mail: ggraifman@kgglaw.com - and - Michael L. Braunstein, Esq. KANTROWITZ GOLDHAMER & GRAIFMAN, P.C. 747 Chestnut Ridge Road, Suite 200 Chestnut Ridge, NY 10977 Telephone: (845) 356-2570 Facsimile: (845) 356-4335 E-mail: mbraunstein@kgglaw.com The Defendant is represented by: Troy Masami Yoshino, Esq. Chad Allen Stegeman, Esq. Johnny J. Yeh, Esq. CARROLL, BURDICK & MCDONOUGH LLP 44 Montgomery Street, Suite 400 San Francisco, CA 94104 Telephone: (415) 989-5900 Facsimile: (415) 989-0932 E-mail: tyoshino@cbmlaw.com cstegeman@cbmlaw.com jyeh@cbmlaw.com The case is Majeed Seifi and Tracey Deakin v. Mercedes-Benz USA, LLC, Case No. 3:12-cv-05493-TEH, in the U.S. District Court for the Northern District of California (San Francisco). MICRO BIRD: Recalls 41 G5 Model School Buses -------------------------------------------- Starting date: October 23, 2013 Type of communication: Recall Subcategory: School Bus Notification type: Compliance Mfr System: Label Units affected: 41 Source of recall: Transport Canada Identification number: 2013366 TC ID number: 2013366 On certain school buses, the compliance label contains incorrect vehicle type information. Owners will be provided with labels and installation instructions. Affected products: 2010 Girardin G5 School Bus MONSANTO CO: GMO Wheat Suits Consolidated Into One Case in Kansas ----------------------------------------------------------------- Mateusz Perkowski, writing for Capital Press, reports that several lawsuits against Monsanto over the unauthorized release of the company's biotech wheat have been consolidated into one case in Kansas. Earlier this year, the USDA announced that glyphosate-tolerant "Roundup Ready" wheat had been discovered growing in an eastern Oregon field. The variety was never deregulated by USDA for commercial production, leading Japan and South Korea to suspend imports of western white wheat. The countries eventually lifted the suspensions, but USDA's investigation into the release continues. The incident also gave rise to numerous lawsuits against Monsanto, alleging that the company failed to prevent the biotech crop from contaminating wheat supplies while conducting field tests. The lawsuits, mostly filed by wheat farmers, claimed that the unauthorized release has hurt wheat prices and export markets. The cases seek class action status that would allow other growers to join the litigation. A panel of federal judges has now decided to merge five lawsuits originally filed in Washington, Oregon, Idaho and Kansas into a consolidated case that will be heard by Chief Judge Kathryn Vratil in Kansas City. Eleven other cases against Monsanto over biotech wheat may also be consolidated into the case unless the plaintiffs object. The panel decided on Kansas as the appropriate forum because several cases originated there and because it's relatively close to Monsanto's headquarters in St. Louis, Mo., "where the majority of common evidence is likely to be located, including the witnesses and documents concerning Monsanto's field testing of genetically engineered wheat." The Center for Food Safety, a non-profit group that filed one of the lawsuits, wanted the cases to be consolidated in Oregon or Washington, while Monsanto requested St. Louis. The panel made a "Solomonic decision" in picking Kansas, said George Kimbrell, attorney for the group. Court briefs and motions that have been submitted up until now in the individual cases will have to be refiled, but the consolidation will ultimately prevent duplicative efforts, he said. "It's a more effective use of judicial resources," Mr. Kimbrell said. Monsanto said it was also pleased with the consolidation decision, noting that the company continues to be confident that it properly followed protocols in ending the field testing program in 2005. Motions filed by Monsanto in some cases prior to the consolidation order could offer a preview of the company's upcoming legal strategy. The firm called the cases a "feeding frenzy" of litigation that alleges "injuries that have not occurred and, by all indications, never will." Monsanto asked for the case to be dismissed because there's no evidence the plaintiffs received a depressed price for wheat or had to pay for additional testing, storage or transportation. "Plaintiffs rushed to file their lawsuit based on rank speculation that Roundup Ready wheat would be found in fields throughout the Northwest, and that markets would continue to reject Northwest wheat deliveries forever. None of that speculation has proven true," Monsanto said in the document. NEW YORK, NY: Suit Over Quota for Summonses Gains Momentum ---------------------------------------------------------- Daniel Beekman, writing for New York Daily News, reports that in the shadow of the stop-and-frisk case that rocked the city this year is a related federal lawsuit that could explode in the laps of the next mayor and police commissioner. Filed in 2010 and made a class action in 2012, the suit accuses the NYPD of imposing quotas that led cops to issue about 700,000 questionable summonses since 2007. The suit covers every person who had a summons dismissed before arraignment due to insufficient allegations. "The evidence indicates that the Police Department had quotas that applied across different enforcement activities," said Stephen Neuwirth, a lawyer for the plaintiffs. "This case goes after the quota system." It also seeks monetary damages. The NYPD has denied quotas and the suit has yet to reach trial. City lawyers argue that many of the summonses were justified, despite being tossed. "By and large, the summonses in question were dismissed because there was not enough detail concerning the alleged offense," said city lawyer Qiana Smith-Williams. The suit is picking up momentum. In August, white-shoe law firm Quinn Emmanuel joined the plaintiffs' team and Manhattan Federal Judge Shira Scheindlin slammed quotas as she ruled the NYPD's stop-and-frisk tactic unconstitutional. "The two cases are very much linked," said Eli Silverman, a John Jay College of Criminal Justice professor who researched quota pressure, as reported by retired cops. "The pressure on summonses was actually higher than . . . stop-and-frisk." This month, a judge ruled that the plaintiffs could depose a city official about how the NYPD tracks enforcement activities. City lawyers downplayed the deposition. But Mr. Neuwirth said, "It will give us pieces of the puzzle that have until now been inaccessible." In 2010, cops stopped plaintiff Sharif Stinson, 23, as he left his aunt's Bronx apartment, handcuffed him and held him, he said. His rights were violated, Mr. Neuwirth said. The cops let Mr. Stinson go with trespass and disorderly conduct summonses that were dismissed. "I wasn't doing anything wrong," he said. The plaintiffs contend that the summonses dismissed lacked probable cause and were trumped up to meet quotas. But city lawyers cite errors by cops. "The lack of detail does not mean there was not 'probable cause.' It just means there was not enough information . . . for criminal proceedings to go forward," Ms. Smith-Williams said. The plaintiffs' case relies on state court statistics and recordings made by whistleblower cops. Democratic mayoral nominee Bill de Blasio is reviewing the suit, a spokesman said. Republican Joe Lhota's campaign and the NYPD didn't return requests for comment. NTS REALTY: Defends Consolidated Merger-Related Suit in Kentucky ---------------------------------------------------------------- NTS Realty Holdings Limited Partnership is defending itself against a consolidated merger-related class action lawsuit pending in Kentucky, according to the Company's August 9, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On January 27, 2013, the Company received notice that Dannis, Stephen, et al. v. Nichols, J.D., et al., Case No. 13-CI-00452, a putative unitholder class action lawsuit, was filed on January 25, 2013, in Jefferson County Circuit Court of the Commonwealth of Kentucky against the Company, each of the members of the board of directors of NTS Realty Capital, NTS Realty Capital, NTS Realty Partners, LLC, NTS Merger Parent, LLC and NTS Merger Sub ("Merger Sub") alleging, among other things, that the board of directors breached their fiduciary duties to the Company's unitholders in connection with the board's approval of the Merger between Merger Sub and NTS Realty. On March 14, 2013, the plaintiffs filed an amended complaint and added NTS Development Company and NTS Management Company as additional defendants. The amended complaint seeks, among other things, to enjoin the defendants from completing the Merger as currently contemplated. The Company believes these allegations are without merit and it intends to vigorously defend against them. On February 12, 2013, the Company received notice that R. Jay Tejera v. NTS Realty Holdings LP et al., Civil Action No. 8302- VCP, another putative unitholder class action lawsuit, was filed on February 12, 2013, in the Court of Chancery in the State of Delaware against the Company, each of the members of the board of directors of NTS Realty Capital, NTS Merger Parent, LLC and NTS Realty Capital, alleging, among other things, that the board of directors breached their fiduciary duties to the Company's unitholders in connection with the board's approval of the Merger between Merger Sub and NTS Realty. The complaint seeks, among other things, money damages. The Company believes these allegations are without merit and it intends to vigorously defend against them. On February 15, 2013, the Company received notice that Gerald A. Wells v. NTS Realty Holdings LP et al., Civil Action No. 8322-VCP, a third putative unitholder class action lawsuit, was filed on February 15, 2013, in the Court of Chancery of the State of Delaware against the Company, each of the members of the board of directors of NTS Realty Capital, NTS Merger Parent, LLC, Merger Sub and NTS Realty Capital, alleging, among other things, that the board of directors breached their fiduciary duties to the Company's unitholders in connection with the board's approval of the Merger between Merger Sub and NTS Realty. The complaint seeks, among other things, to enjoin the defendants from completing the Merger as currently contemplated. The Company believes these allegations are without merit and it intends to vigorously defend against them. On March 19, 2013, the Delaware Court of Chancery consolidated the Tejera and Wells complaints under the Tejera case number and the consolidated case caption of In Re NTS Realty Holdings Limited Partnership Unitholders Litigation. Then, on June 12, 2013, the Delaware Chancery Court granted a Stipulation and Order of Voluntary Dismissal as to Plaintiff R. Jay Tejera, dismissing the claims of Plaintiff R. Jay Tejera, without prejudice, from In Re NTS Realty Holdings Limited Partnership Unitholders Litigation. On June 13, 2013, the Company received notice that Plaintiff R. Jay Tejera joined with Plaintiffs Stephen and Sharon Dannis in filing a second amended complaint in the litigation pending in the Jefferson County Circuit Court of the Commonwealth of Kentucky. In the second amended complaint, the Dannises and Tejera purport to state claims for breach of fiduciary duty against the Company, each member of the board of directors, NTS Realty Capital and NTS Merger Parent, LLC. This second amended complaint, like the amended complaint, seeks money damages. The Company believes these allegations are without merit and it intends to vigorously defend against them. NTS Realty Holdings Limited Partnership -- http://www.ntsdevelopment.com/-- develops, constructs, owns and operates multifamily properties, commercial and retail real estate. The Company is headquartered in Louisville, Kentucky. OBAMA FOR AMERICA: Motion for Class Cert. in TCPA Suit Denied ------------------------------------------------------------- District Judge Virginia M. Hernandez Covington denied without prejudice a motion for class certification filed in LORI SHAMBLIN, Plaintiff, v. OBAMA FOR AMERICA, Defendant, CASE NO. 8:13-CV-2428- T-33TBM, (M.D. Fla.). Shamblin filed the putative class action case alleging that Obama for America violated the Telephone Consumer Protection Act during the 2012 presidential election. According to Judge Hernandez, the case is in its infancy. The docket reflects that Shamblin has yet to effect service of the summons and the Complaint on Obama for America. In addition, the Court has not yet entered a Case Management and Scheduling Order containing the operative case deadlines. Rather than staying the present Motion, which is three pages in length and devoid of substantive analysis, the Court finds the better course of action is to deny the Motion without prejudice, she says. "After Shamblin has effected service of the summons and Complaint, Shamblin should confer with Obama for America regarding the deadline for filing motions for class certification," Judge Hernandez continued. "Thereafter, Shamblin may file a motion for extension of time in which to seek class certification." A copy of the District Court's October 9, 2013 Order is available at http://is.gd/Fa4ow8from Leagle.com. OPTOTRAFFIC: Judge Certifies Speed Camera Class Action ------------------------------------------------------ Natasha Williams, writing for WCPO Cincinnati, reports that Elmwood Place and its speed camera vendor would have to pay back up to $1.7 million if ticketed motorists win the class-action lawsuit certified on Oct. 22 by the judge who ordered the cameras removed last spring. Up to 10,000 motorists who paid the $105 tickets would be included in the suit, attorney Mike Allen said. The village collected more than $1.75 million in fines and fees during the six months the six cameras were in operation from September 2012 to March 2013. Approximately 20,000 tickets were issued, Hamilton County Common Pleas Judge Robert Ruehlman wrote in his ruling on Oct. 22. Judge Ruehlman certified the class action on behalf of all motorists who paid the fines, additional online charges and hearing fees or other charges under Elmwood Place's Automated Speed Enforcement program. It doesn't include those who didn't pay their tickets and others who already got a court-ordered refund. "Judge Ruehlman's ruling [Oct. 22] that this case can proceed as a class action is a victory for the common man and woman, I think," Mr. Allen told 9 On Your Side's Natasha Williams. "If you look at those people who were out at Elmwood at those hearings, it was people on fixed incomes, elderly people. They shelled out 105 bucks, in some cases more, to Elmwood. "Judge Ruehlman's ruling [Oct. 22] gives us the opportunity to put money back in their pockets." A call to Elmwood Place was not returned, Ms. Williams reported. Judge Ruehlman heard arguments earlier this month from Mr. Allen, who already represented hundreds of ticketed motorists, and Judd Uhl, special solicitor for the village. Mr. Allen sought to have everyone ticketed by the cameras represented in the suit. "They can't go and litigate these cases individually," Mr. Allen said, citing the thousands of people involved. Mr. Uhl argued that the cases did not meet one of the seven requisites for class action -- commonality. "You have thousands of thousands of tickets with different scenarios, different circumstances. These people don't have a common interest at all," Mr. Uhl said. Elmwood Place has the money to repay the tickets in reserve should it lose its case, Mr. Uhl said. Elmwood Place split the ticket pot 60-40 with Optotraffic, the company that installed and operated the cameras. The village's share was $1,056,515, according to an April 5 email accounting from Optotraffic. The Maryland-based company got roughly $704,000. Several elected village leaders have quit amid the controversy over the speed cameras. Mayor Stephanie Morgan resigned this month, and four of the seven council members resigned in May. Vice Mayor Robert Schmidt says he is serving as acting mayor. In his March ruling, Judge Ruehlman said the speed cameras were illegal because they violated due process, and he issued a permanent injunction against using them. In June, Judge Ruehlman found the village and Optotraffic in contempt because they continued to operate the cameras after his order to stop. The village argued that it was just collecting data, but Mr. Allen noted in his motion that the village continued to collect money from tickets previously issued. Judge Ruehlman ordered that all money collected from drivers after his March stop order be repaid. That amounted to about $48,500. He also had the sheriff's office confiscate the cameras until the money was returned. In his March ruling, Judge Ruehlman called the use of speed cameras "a scam motorists can't win" and "a game of three card monte," rejecting the village's claim they were installed to promote safety. The cameras were calibrated to ticket any vehicle going more than 5 mph above the speed limit, officials said. In the first month the cameras were in use, 6,600 tickets went out -- triple the village's population. Before some unsuspecting drivers realized it, they had racked up multiple citations. Once a citation was issued, Judge Ruehlman's ruling said, there was virtually no way drivers could defend themselves in court. Plus, drivers who opted for a hearing had to pay a $25 fee. Judge Ruehlman also noted that Optotraffic had a financial stake in their use. Mr. Allen argued that Optotraffic couldn't be trusted to calibrate the cameras accurately. At the time, Judge Ruehlman ordered Elmwood Place to pay back 10 plaintiffs who sued the village separately from Mr. Allen's action. The judge also made the village pay legal fees. Mr. Allen has also sued New Miami over the speed cameras in that Butler County village. That case is pending. In June, the Ohio House passed a bill that would make speed cameras and red-light cameras illegal except in school zones. The bill, sponsored by Dale Mallory (D-Cincinnati) and Ron Maag (R-Lebanon), has been referred to the Senate committee on State Government Oversight and Reform. The bill faces opposition from legislators in Columbus, Cleveland, Akron and Toledo, which collect millions of dollars from traffic cameras. PACIFIC BIOSCIENCES: Awaits Final OK of Shareholder Suit Deal ------------------------------------------------------------- Pacific Biosciences of California, Inc., is awaiting final approval of its settlement of a consolidated shareholder litigation, according to the Company's August 9, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. Three putative class action lawsuits were filed against the Company and certain of its officers and directors in the Superior Court of the State of California, County of San Mateo. These actions were brought on behalf of all persons or entities that purchased or otherwise acquired the Company's common stock pursuant or traceable to the Company's initial public offering ("IPO") of common stock in October 2010. The claims were initiated between October 2011 and April 2012 and have since been consolidated as In re Pacific Biosciences of California Inc. S'holder Litig., Case No. CIV509210 (the "State Court Action"). The plaintiffs in the State Court Action allege violations of several provisions of the federal securities laws in connection with the Company's August 16, 2010 registration statement (effective, as amended, on October 26, 2010) and seek, among other things, compensatory damages, rescission, and attorneys' fees and costs on behalf of the putative class. On October 26, 2012, the plaintiffs in the State Court Action filed a First Amended Consolidated Class Action Complaint, which the defendants answered on November 13, 2012. On June 3, 2013, the Superior Court preliminarily approved the terms of a tentative settlement reached by the parties to the State Court Action and conditionally certified the settlement class proposed by the parties, such class consisting of all persons or entities that purchased the Company's common stock between October 27, 2010, and September 20, 2011 (inclusive). The Superior Court scheduled a hearing regarding final approval of the tentative settlement for October 25, 2013. As of June 30, 2013, the Company has accrued for its best estimate to resolve this matter. The Company believes that the allegations in each of these pending actions against it are without merit and the Company intends to vigorously contest the actions. However, there can be no assurance that the Company will be successful in its defense. Pacific Biosciences of California, Inc., develops, manufactures and markets an integrated platform for high resolution genetic analysis. Combining advances in nanofabrication, biochemistry, molecular biology, surface chemistry and optics, the Company created a technology platform called single molecule, real-time, or SMRT, technology. PACIFIC BIOSCIENCES: Awaits Ruling on Bid to Stay "Primo" Suit -------------------------------------------------------------- Pacific Biosciences of California, Inc., is awaiting a court decision on its and other defendants' motion to stay the "Primo" action, according to the Company's August 9, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On December 21, 2011, the Company and certain of its officers and directors were named in a putative class action lawsuit filed in United States District Court for the Northern District of California (Primo v. Pacific Biosciences of California, Inc., et al., Case No. 4:11-CV-06599). On April 11, 2012, an amended complaint was filed in the Primo action, which added another plaintiff, Evan Powell. As amended, the complaint alleges violations of several provisions of the federal securities laws in connection with the Company's August 16, 2010 registration statement (effective, as amended, on October 26, 2010), and by the Company and/or its employees during the class period. The complaint seeks, among other things, compensatory damages, rescission, and attorneys' fees and costs on behalf of the putative class. On April 15, 2013, the District Court granted the defendants' motion to dismiss the amended complaint while permitting plaintiffs to file an amended complaint within sixty days. On June 14, 2013, the plaintiffs in the Primo action filed a second amended complaint. On June 13, 2013, the defendants moved to stay all proceedings in the Primo action, pending a consideration by the Superior Court of the State of California, County of San Mateo, of whether to grant final approval to the tentative settlement preliminarily approved in the State Action. The District Court has scheduled a hearing on the defendants' motion to stay the Primo action for August 22, 2013. Pursuant to the parties' stipulation and as ordered by the District Court, the defendants are not obligated to respond to the second amended complaint until thirty days after the District Court has ruled on the pending motion to stay and then only in the event the District Court denies the motion. The Company believes that the allegations in each of these pending actions against it are without merit and the Company intends to vigorously contest the actions. However, there can be no assurance that the Company will be successful in its defense. Pacific Biosciences of California, Inc., develops, manufactures and markets an integrated platform for high resolution genetic analysis. Combining advances in nanofabrication, biochemistry, molecular biology, surface chemistry and optics, the Company created a technology platform called single molecule, real-time, or SMRT, technology. PILOT FLYING J: 150 Customers Opt Out of Class Action Settlement ---------------------------------------------------------------- Alison Grant, writing for The Plain Dealer, reports that Pilot Flying J's plan to settle a multimillion-dollar class action that claims it cheated trucking companies on fuel rebates and discounts has about 150 customers saying no thanks to the deal. Browns owner Jimmy Haslam's family business has proposed in a class settlement pending in federal court in Little Rock, Ark., to repay trucking companies anything they're owed, plus six percent interest. Pilot Flying J attorney Aubrey Harwell said on Oct. 21 that officials of about 150 truck lines that are controlled by about 55 parent companies notified him by the Oct. 15 deadline that they did not want to be part of the class settlement. The settlement is aimed at resolving complaints from dozens of trucking companies that sued Pilot after an April 15 raid on its headquarters in Knoxville, Tenn. The lawsuits claim the national truck stop chain shorted trucking companies out of millions of dollars in promised fuel rebates and discounts. Mr. Harwell said at least three of the firms opting out of the proposed agreement are trucking companies satisfied with the payments they've already received for past-due fuel payments. Others said they will drop their opposition to the settlement once Pilot completes an audit of its fuel program and pays them for shortages, Mr. Harwell said. Such customers would need court approval to opt back in to the plan or Pilot can simply settle with them one on one, Mr. Harwell said. Still other customers have been averse to a class agreement all along and have taken an aggressive stance against Pilot -- calling for questioning of Mr. Haslam and other Pilot executives under oath about their knowledge of the years-long scam. Mr. Haslam has said he knew nothing about any illegalities, and that Pilot's internal investigation now shows that it was limited to a small group of rogue employees. Mr. Haslam said in an update on Pilot's investigation in late September that all of the chain's nearly 7,000 customers with fuel accounts have had those accounts audited. Also, Tennessee Attorney General Robert Cooper Jr.'s office said it decided not to raise objections to the settlement after reviewing it in the framework of the 2005 Class Action Fairness Act. The law expanded federal oversight of class action lawsuits and settlements nationwide. "This class action is different from most consumer settlements that the office reviews. The lawsuit and the underlying issues have received considerable publicity. The proposed class members are businesses that have the resources to evaluate their own claims. If a class member doesn't believe it is getting what it deserves, it has the right to opt out of the settlement, be removed from the class, and file its own lawsuit," Sharon Curtis- Flair, a spokeswoman for Cooper, said in a prepared statement. A fairness hearing on whether to finalize the Pilot settlement is set for Nov. 25 in Little Rock. A criminal investigation continues into claims that Pilot systematically defrauded trucking companies by withholding rebates or discounts they were promised. Seven Pilot employees have pleaded guilty and agreed to cooperate with prosecutors. PROLOR BIOTECH: Defends Merger-Related Class Suit in Nevada ----------------------------------------------------------- Prolor Biotech, Inc., is defending a consolidated merger-related class action lawsuit pending in Nevada, according to the Company's August 9, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On April 23, 2013, the Company entered into an agreement and plan of merger with OPKO Health, Inc., a Delaware corporation ("OPKO"), and POM Acquisition, Inc., a Nevada corporation and a direct wholly owned subsidiary of OPKO ("POM"), pursuant to which POM will be merged with and into the Company (the "Merger") and the Company will be the surviving corporation and OPKO's wholly owned subsidiary. Six putative class action lawsuits have been filed in connection with the Merger: (i) Peter Turkell v. Prolor Biotech, Inc., et al. (Case No. A-13-680860-B), filed April 29, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (ii) Floyd A. Fried v. Prolor Biotech, Inc., et al., (Case No. A-13- 681060), filed May 1, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (iii) Marc Henzel v. Prolor Biotech, Inc., et al. (Case No. A-13-681020-C), filed May 1, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (iv) Bradford W. Baer, et al., v. Prolor Biotech, Inc. et al. (Case No. A-13-681218-B, filed May 3, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; (v) James Hegarty v. Prolor Biotech, Inc., et al (Case No. A-13-681250-C), filed May 6, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada; and (vi) Jorge L. Salas, et al. v. Prolor Biotech, Inc., et al. (Case No. A-13-681279-C), filed May 6, 2013, in the Eighth Judicial District Court in and for Clark County, Nevada. On July 17, 2013, these six lawsuits were consolidated, for all purposes, into an amended class action complaint as part of the In re PROLOR Biotech, Inc. Shareholders' Litigation (Case No. A-13- 680860-B). The lawsuit names the Company, the members of its Board of Directors, OPKO, and POM as defendants. The lawsuit is brought by purported holders of the Company's common stock, both individually and on behalf of a putative class of the Company's stockholders, asserting claims that (i) the its Directors breached their fiduciary duties in connection with the proposed Merger by, among other things, purportedly failing to maximize stockholder value, (ii) that the Company and its Board of Directors failed to disclose material information concerning the proposed Merger and (iii) that OPKO and POM aided and abetted the Company's Directors' alleged breach of their fiduciary duties. The lawsuit seeks various damages, an award of all costs, and reasonable attorneys' fees, as well as certain equitable relief, including enjoining consummation of the Merger and, alternatively, rescinding the Merger in the event it is consummated. The Company believes that the claims made in this lawsuit are without merit and intends to defend such claims vigorously; however, there can be no assurance that the Company will prevail in its defense of this lawsuit. Due to the preliminary nature of the lawsuit, the Company is not able at this time to estimate its outcome. Prolor Biotech, Inc., is a development stage biopharmaceutical company, utilizing an exclusive license from Washington University to patented technology in the development of longer-acting versions of already-approved therapeutic proteins, through its Israeli subsidiary, Prolor Biotech Ltd. The Company was incorporated in 2003 under the laws of the state of Nevada and is headquartered in Nes-Ziona, Israel. REMINGTON ARMS: Faces Class Action Over Alleged Rifle Defects ------------------------------------------------------------- Gazette State Bureau reports that the Remington Arms Co. has faced numerous lawsuits over alleged defects in its Model 700 bolt- action rifle -- including at least three class-action lawsuits filed in federal courts in Montana, Washington and Missouri. The class-action suits, all filed earlier this year on behalf of rifle owners, allege that "every Model 700 should be considered unreasonably dangerous and defective because it is prone to fire without pulling the trigger due to the defective design of the trigger assembly." The suits accuse Remington of knowingly concealing the "defective nature" of the rifle. The suits ask for damages and request that the company be ordered to notify all Model 700 owners of the problem. However, none of the lawsuits has had the plaintiffs certified as a class -- a key step in any successful class-action suit. The Montana lawsuit was dismissed three weeks ago at the request of Remington and the plaintiffs. Lawyers in the case declined to discuss why they asked for dismissal. Also this month, an Oregon woman severely injured by a Remington Model 700 rifle more than 30 years ago asked a federal judge in Oregon to reopen her case for a new trial. Teri See alleged that before the 1983 trial on her original lawsuit against the company, Remington fraudulently concealed evidence about its knowledge of defects in the rifle. A jury ruled in favor of Remington at that trial. Over the years, Remington has won, lost and settled scores of lawsuits filed by people injured by the Model 700 rifle. Most of the suits alleged the rifle has a defect that can cause it to fire without the trigger being pulled. One of the biggest verdicts against Remington was in 1994. Texas oil worker Glenn Collins, whose foot was amputated after an accident with the Model 700, won a $17 million verdict against the company. The case later was settled out of court, after Remington agreed not to appeal the verdict. Mr. Collins said the rifle fired accidentally in 1989 as he was unloading it, striking his foot. RESER'S FINE: Recalls Certain Salad Products -------------------------------------------- Starting date: October 23, 2013 Type of communication: Recall Alert sub-type: Updated Health Hazard Alert Subcategory: Microbiological - Listeria Hazard classification: Class 1 Source of recall: Canadian Food Inspection Agency Recalling firm: Reser's Fine Foods Inc. Distribution: National Extent of the product distribution: Retail The public warning issued on October 21, 2013 has been updated to include additional products. The Canadian Food Inspection Agency (CFIA) and Reser's Fine Foods Inc. are warning the public not to consume the Reser's Fine Foods and Market Pantry brands salad products described below, because they may be contaminated with Listeria monocytogenes. There have been no reported illnesses associated with the consumption of these products. The manufacturer, Reser's Fine Foods Inc., Beaverton, Oregon, USA, is voluntarily recalling the affected products from the marketplace. The CFIA is monitoring the effectiveness of the recall. The following products, marked with a Best By Date followed by a plant identifier code of 20, are affected by this alert: Affected products: -- 425 g Market Pantry Coleslaw with UPC 0 28919 00240 3 and Best By Date(s) of 2013 OC 10; -- 454 g Reser's Fine Foods Creamy Spinach Dip with UPC 0 71117 61206 6 and Best By Date(s) of 2013 OC 17, 2013 OC 30; -- 425 g. Reser's Fine Foods Crunchy Coleslaw with UPC 0 71117 18244 6 with Best By Date(s) of 2013 OC 10; -- 1.25 kg Reser's Fine Foods Crunchy Coleslaw with UPC 0 71117 61225 7 and Best By Date(s) 2013 OC 10; -- 454 g. Reser's Fine Foods Macaroni Salad with UPC 0 71117 18240 8 and Best By Date(s) of 2013 OC 23 2013 NO 26; -- 1.81 kg. Reser's Fine Foods Gourmet Potato Salad with UPC 0 71117 00164 8 and Best By Date(s) of 2013 OC 12, 2013 OC 25, 2013 NO 15; -- 340 g. Reser's Fine Foods Gourmet Red Potato Salad with UPC 0 71117 61209 7 and Best By Date(s) 2013 OC 12; -- 454 g. Reser's Fine Foods Homestyle Potato Salad with UPC 0 71117 61251 6 and Best By Date(s) of 2013 OC 10; -- 1.25 kg. Reser's Fine Foods Macaroni Salad with UPC 0 71117 61322 3 and Best By Date(s) of 2013 OC 23, 2013 NO 05; -- 454 g. Reser's Fine Foods Potato & Deviled Egg Salad with UPC 0 71117 61252 3 and Best By Date(s) of 2013 OC 12, 2013 NO 15; -- 454 g. Reser's Fine Foods Potato & Egg Salad with UPC 0 71117 18243 9 and Best By Date(s) of 2013 OC 23, 2013 NO 26; -- 1.25 kg. Reser's Fine Foods Potato & Egg Salad with UPC 0 71117 61321 6 and Best By Date(s) 2013 OC 23, 2013 NO 26; -- 454 g Reser's Fine Foods Potato Salad with UPC 0 71117 18242 2 and Best By Date(s) 2013 OC 23; -- 1.25 kg Reser's Fine Foods Potato Salad with UPC 0 71117 61320 9 and Best By Date(s) 2013 OC 23, 2013 NO 26; -- 2.27 kg. Reser's Fine Foods Red Potato Salad with Dijon with UPC 0 71117 61629 3 and Best By Date(s) 2013 OC 15, 2013 OC 28, 2013 NO 18; -- 425 g. Reser's Fine Foods Traditional Oil & Vinegar Coleslaw with UPC 0 71117 61254 7 and Best By Date(s) 2013 OC 10; and -- 3.63 kg. Reser's Fine Foods Potato Salad * with UPC 71117 00215 and Best By Date(s) 2013 OC 23, 2013 NOV 06, 2013 NOV 27 * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 2.27 kg Reser's Fine Foods Loaded Baked Potato Salad * with UPC 71117 11586 and Best By Date(s) 2013 NOV 10 * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. -- 3.18 kg. Reser's Fine Foods Regular Coleslaw * with UPC 71117 15124 and Best By Date(s) 2013 OC 20, 2013 NOV 10 * These affected products were sold in bulk and may have been repacked at retail. Consumers who cannot determine the original product identity are advised to check with their retailer to determine if they have one of the affected products. RESERVE PRIMARY FUND: December 16 Settlement Fairness Hearing Set ----------------------------------------------------------------- Crederian Fund Services LLC on Oct. 22 disclosed that in the United States District Court for the Southern District of New York, in In re The Reserve Primary Fund Securities & Derivative Class Action Litigation No. 08-cv-8060-PGG, a summary notice has been issued as follows: SUMMARY NOTICE OF PENDENCY OF CLASS ACTION AND PROPOSED SETTLEMENT, FINAL APPROVAL HEARING, AND MOTION FOR ATTORNEYS' FEES AND REIMBURSEMENT OF LITIGATION EXPENSES TO: ALL PERSONS OR ENTITIES WHO PURCHASED OR HELD SHARES OF THE PRIMARY FUND DURING THE PERIOD FROM SEPTEMBER 28, 2006 TO SEPTEMBER 17, 2008. PLEASE READ THIS NOTICE CAREFULLY. YOUR RIGHTS MAY BE AFFECTED BY A CLASS ACTION LAWSUIT PENDING IN THIS COURT. YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules of Civil Procedure and an Order of the United States District Court for the Southern District of New York, (a) of the pendency of this action asserting claims against Reserve Management Company, Inc., Resrv Partners, Inc., Reserve Management Corporation, Bruce Bent Sr., Bruce R. Bent II, and Arthur T. Bent III; and the Independent Trustees of the Primary Fund as a class action on behalf of the persons and entities who (i) purchased or held shares of the Primary Fund during the period from September 28, 2006 to September 15, 2008 and held them as of 4:00 p.m. ET on September 15, 2008; or (ii) purchased shares of the Primary Fund during the period between 4:00 p.m. ET on September 15, 2008 and September 17, 2008, except for certain persons and entities who are excluded from the Class by definition; and (b) that a settlement of the Action that has the net effect of at least a $54.5 million benefit to Members of the Class and other Primary Fund Shareholders has been proposed. A hearing will be held on December 16, 2013, at 2:00 p.m., before the Honorable Paul G. Gardephe, at the United States District Court for the Southern District of New York, 40 Foley Square, Courtroom 705, New York, New York 10007: (A) to determine whether the proposed Settlement on the terms and conditions provided for in the Stipulation is fair, reasonable, and adequate and should be approved by the Court; (B) to determine whether the Order and Final Judgment as provided for under the Stipulation should be entered, dismissing the Action, on the merits and with prejudice, and to determine whether the releases proposed by the Parties, as set forth in the Stipulation, should be ordered; (C) to determine whether the application by Lead Counsel for an award of attorneys' fees and reimbursement of Litigation Expenses incurred should be approved; and (D) to rule upon such other matters as the Court may deem appropriate. IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL BE AFFECTED BY THE PENDING ACTION AND THE SETTLEMENT, AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT FUND. If you have not yet received the full printed Notice of Pendency of Class Action and Proposed Settlement, Final Approval Hearing and Motion for Attorneys' Fees and Reimbursement of Litigation Expenses, you may obtain copies of these documents by contacting the Claims Administrator: The Reserve Primary Fund Securities Class Action Litigation c/o Crederian Fund Services LLC 1400 N. Providence Road Bldg. 2, Suite 5035 Media, PA 19063 Telephone: (800) 691-7562 A copy of the Notice is available at: http://www.primary-yieldplus-inliquidation.com Copies of other documents, including copies of the Stipulation, and the Complaint, are available on Lead Counsel's website at http://www.blbglaw.com If you are a Member of the Class, you may be potentially eligible to receive a distribution from this settlement. If you are a Class Member but purchased your shares indirectly (e.g., through a broker or nominee), you should contact that broker or nominee immediately, as the Court may order that any distribution be made through the record holders only, consistent with its prior orders. If you are a Member of the Class, you are subject to the Settlement unless you timely request to be excluded. To exclude yourself from the Class, you must submit a request for exclusion such that it is received no later than November 25, 2013, in accordance with the instructions set forth in the Notice. Any objections to the proposed Settlement, Plan of Allocation and/or Lead Counsel's application for attorneys' fees and reimbursement of litigation expenses must be filed with the Court and delivered to counsel such that they are received no later than November 25, 2013, in accordance with the instructions set forth in the Notice. PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING THIS NOTICE. Inquiries may be made to Lead Counsel: John Browne, Esq. Bernstein Litowitz Berger & Grossmann LLP 1285 Avenue of the Americas, 38th Floor New York, NY 10019 Telephone: (866) 648-2524 Published By Order of the United States District Court for the Southern District of New York SAKS INC: Agrees to Settle Shareholder Class Action Over Merger --------------------------------------------------------------- RAPAPORT reports that Saks Inc. acknowledged on Oct. 22 that it had reached an agreement to settle class action lawsuits that were filed by some shareholders in an attempt to prevent the retailer's sale to Hudson's Bay Company. Several class action suits were brought against Saks in New York, which were consolidated, and two cases were filed in Tennessee. The complaints alleged that Saks' directors breached their fiduciary duties to shareholders in connection with the merger by agreeing to sell Saks for "inadequate" consideration and by agreeing to terms that discouraged competing bids. The complaints also challenged disclosures that Saks and its directors have made regarding the merger, as well as that Hudson's Bay aided and abetted the directors' breach of their fiduciary duties. On Oct. 21, the parties came to an understanding, which would decrease the termination fee from Saks to Hudson's Bay down to $68.5 million from $73.5 million if the deal fails to materialize and shortened the period of time that Hudson's Bay may match an alternative offer for Saks from four days to three. Saks must inform Hudson's Bay of an alternative offer within 72 hours. Saks called a special meeting of shareholders for Oct. 30 to vote on and approve the merger with Hudson's Bay. TANGOE INC: Continues to Defend Consolidated Securities Suit ------------------------------------------------------------ Tangoe, Inc., continues to defend itself against a consolidated securities class action lawsuit pending in Connecticut, according to the Company's August 9, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2013. On March 1, 2013, Lewis Stein, a purported purchaser of the Company's common stock, filed a complaint in the United States District Court for the District of Connecticut against the Company, its President and Chief Executive Officer and its Chief Financial Officer, Stein v. Tangoe, Inc., Albert R. Subbloie, Jr. and Gary R. Martino. The plaintiff alleges violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") and Rule 10b-5 promulgated under the Exchange Act. The plaintiff seeks to represent a class of purchasers of the Company's common stock from December 20, 2011, through September 5, 2012, and alleges that during this period the market price of the Company's common stock was inflated by false or misleading statements principally concerning the results of the Company's business. On April 30, 2013, Mr. Stein and another purported purchaser of the Company's common stock, James Gibson, filed a motion to be appointed as lead plaintiffs in connection with this putative class action and to have their attorneys approved as lead counsel. The court held a hearing on May 13, 2013, to appoint a lead plaintiff and lead counsel for all of the cases consolidated with this action. The court denied without prejudice Mr. Stein's and Mr. Gibson's motion to be appointed as lead plaintiffs in connection with this putative class action and to have their attorneys approved as lead counsel. On May 17, 2013, Mr. Gibson withdrew his request to be appointed as lead plaintiff in connection with this putative class action, and Mr. Stein filed a renewed request to be appointed as lead plaintiff in connection with this putative class action and to have his attorneys approved as lead counsel. The court has not yet ruled on Mr. Stein's renewed motion. The Company says the outcome of this matter is not presently determinable. On March 15, 2013, Calvin Rector, a purported purchaser of the Company's common stock, filed a complaint in the United States District Court for the District of Connecticut against the Company, its President and Chief Executive Officer and its Chief Financial Officer, Rector v. Tangoe, Inc., Albert R. Subbloie, Jr. and Gary R. Martino. The plaintiff alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated under the Exchange Act. The plaintiff seeks to represent a class of purchasers of the Company's common stock from December 20, 2011, through September 5, 2012, and alleges that during this period the market price of the Company's common stock was inflated by false or misleading statements principally concerning the results of the Company's business. On April 3, 2013, the Court consolidated this case with the Stein case. Mr. Rector has not moved to be appointed lead plaintiff in the consolidated Stein case. The Company says the outcome of this matter is not presently determinable. On April 12, 2013, Timothy Kelley, a purported purchaser of the Company's common stock, filed a complaint in the United States District Court for the District of Connecticut against the Company, its President and Chief Executive Officer and its Chief Financial Officer, Kelley v. Tangoe, Inc., Albert R. Subbloie, Jr. and Gary R. Martino. The plaintiff alleges violations of Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated under the Exchange Act. The plaintiff seeks to represent a class of purchasers of the Company's common stock from December 20, 2011, through September 5, 2012, and alleges that during this period the market price of the Company's common stock was inflated by false or misleading statements principally concerning the results of the Company's business. On April 26, 2013, the court consolidated the case with the Stein case. Mr. Kelley has not moved to be appointed lead plaintiff in the consolidated Stein case. The Company says the outcome of this matter is not presently determinable. Tangoe, Inc. -- http://www.tangoe.com/-- is a Delaware corporation based in Orange, Connecticut. Tangoe is a global provider of communications lifecycle management software and services to a wide range of large and medium sized commercial enterprises and governmental agencies. TARSADIA HOTELS: Summary Judgment Ruling Entered in "Beaver" Suit ----------------------------------------------------------------- In the case DEAN BEAVER, et al., Plaintiffs, v. TARSADIA HOTELS, et al., Defendants, CASE NO. 11CV1842 GPC(KSC), (S.D. Cal.), District Judge Gonzalo P. Curiel issued an order denying the plaintiffs' motion for summary judgment, and granted in part and denied in part, the Tarsadia Defendants and Defendant Playground Destination's motions for summary judgment. Plaintiffs Dean Beaver, Laurie Beaver, Steven Adelman, Abram Aghachi, Dinesh Gauba, Kevin Kenna and Veronica Kenna brought the class action on behalf of themselves and all others similarly situated against developers and agents of the Hard Rock Hotel & Condominium Project. Plaintiffs commenced this action on behalf of persons who purchased units at the Hard Rock between May 2006 and December 2007 for Defendants' failure to disclose and intentionally concealing Plaintiffs' right to rescind their purchase contracts within two years of the date of signing the contracts. The Court denied the Plaintiffs' motion for summary judgment and granted Tarsadia Defendants and Defendant Playground Destinations' motions for summary judgment as to all causes of action except the negligence cause of action. Judge Curiel ordered the parties to file supplemental briefs as to the negligence cause of action on or before November 5, 2013. A copy of the District Court's October 16, 2013 Order is available at http://is.gd/NJq6ECfrom Leagle.com. TENDERTYME/1218216: Recalls Small Wonders Pacifiers --------------------------------------------------- Starting date: October 23, 2013 Posting date: October 23, 2013 Type of communication: Consumer Product Recall Subcategory: Children's Products Source of recall: Health Canada Issue: Chemical Hazard Audience: General PublicI Identification number: RA-36363 Affected products: Small Wonders Pacifiers The recall involves the "Small Wonders" brand pacifiers. The pacifiers come in a package of two with various colour combinations and can be identified by the style number 1622 and UPC number 627174016226. Health Canada's sampling and evaluation program has determined that the mouth guard of the pacifiers contains lead in excess of the allowable limit. Lead is toxic if ingested by young children and can cause adverse health effects. Neither Health Canada nor Tendertyme/1218216 Ontario Limited has received reports of incidents or injuries related to the use of the pacifiers. For more information on the risks and symptoms of lead exposure, visit Reduce your exposure to lead. Approximately 5,700 units of the affected pacifiers were sold in Canada. Companies: Manufacturer Royal King Bangkok Thailand Distributor Tendertyme/1218216 Ontario Ltd. Toronto Ontario Canada Consumers should take away these pacifiers from their children immediately and dispose of them in their regular household garbage. TEVA PHARMACEUTICALS: WLF Urges Court to Rehear Propoxyphene Suit ----------------------------------------------------------------- Jessica M. Karmasek, writing for Legal Newsline, reports that a public interest law and policy center headquartered in Washington, D.C., is urging a federal appeals court to uphold the right of out-of-state defendants to remove lawsuits from state to federal court when the suit involves numerous plaintiffs. The Washington Legal Foundation, which promotes free enterprise, filed an amicus brief in Romo v. Teva Pharmaceuticals USA Inc. this week. In its brief, WLF argues that the 2-1 decision of a three-judge panel remanding a product liability suit back to state court was "inconsistent" with the federal Class Action Fairness Act. Congress adopted the Class Action Fairness Act in 2005 to ensure that the right of removal is protected for most such defendants, particularly in cases seeking significant damages and in which the plaintiff is suing to collect for alleged injuries on behalf of numerous individuals. CAFA gives federal courts jurisdiction to certain class actions in which the amount in controversy exceeds $5 million, and in which any of the members of a class of plaintiffs is a citizen of a state different from any defendant, unless at least two-thirds or more of the members of all proposed plaintiff classes in the aggregate and the primary defendants are citizens of the state in which the action was originally filed. Business groups and tort reform supporters lobbied for the legislation, arguing that it was needed to prevent class-action lawsuit abuse. WLF is urging the U.S. Court of Appeals for the Ninth Circuit to rehear the case en banc. The court's three-judge panel held that the lawsuit did not qualify as a "mass action" and was not subject to CAFA. The foundation argues that Congress intended CAFA to apply whenever -- as in this case -- the suit combines the claims of 100 or more plaintiffs. Even if the plaintiffs do not ask explicitly that the claims of all plaintiffs be "tried jointly," CAFA permits removal whenever the plaintiffs ask that the claims be coordinated "for all purposes," WLF asserts. "The panel decision strongly suggests that nothing that plaintiffs' counsel could do -- short of making an explicit statement that 'we hereby propose that all claims be tried jointly' -- would ever be sufficient to trigger the mass action provision," attorneys Richard Samp and Cory Andrews wrote in the foundation's 18-page brief. "In light of Congress's determination that it is of critical importance that defendants faced with 'mass actions' should be afforded a federal forum and that plaintiffs should not be permitted to 'game the system' for the purpose of defeating removal, the issue of whether Congress really intended to define 'mass actions' as narrowly as the panel determined warrants en banc review by this Court." The case involves the product liability claims of more than 1,500 individuals who claim to have suffered injuries after taking medications containing the active ingredient propoxyphene, a drug that was widely marketed in the United States between 1957 and 2010. Named as defendants are nearly a dozen pharmaceutical manufacturers and wholesalers. WINDSOR: Legal Bills Pile Up in Suit Over Bingo Licensing Fees -------------------------------------------------------------- Dave Waddell, writing for The Windsor Star, reports that the City of Windsor could be on the hook for a $100-million jackpot if it loses a class-action lawsuit over bingo licensing fees led by the Amyotrophic Lateral Sclerosis Society of Essex County and the Community Gaming Entertainment Group. The legal bill already tops $650,000 from the suit filed Oct. 27, 2008, with the prospect it'll grow into the millions before the case reaches trial. The suit, which alleges lottery licensing and lottery administration fees were actually taxes, was the subject of an in-camera meeting on Oct. 21 before Windsor council's regular meeting. The town of Tecumseh is also named in the class-action suit by the Belle River District Minor Hockey Association and the Essex County Dancers. The municipalities are sharing the legal costs where applicable. "So far between Tecumseh and the City of Windsor, we have already paid over $1-million to defend this action," said city solicitor George Wilkki. "That's money better spent on charities rather than lawyers. "We're trying to estimate the total expense. We'd have to look at every single charity that pulled a bingo license back to Day 1." That expense will send the legal defense bills skyrocketing if the city is forced to go back to 1990 as is sought by the plaintiffs. The two municipalities are seeking to have the term limited to two years and a brief transition phase. "It would be a huge time commitment (to research over two decades of documentation)," Mr. Wilkki said. "We'd have to hire temporary staff just to do it." Mr. Wilkki said the Essex County area is a test case for the rest of the province. At one time, the region was the bingo capital of Canada and a $100-million win could wreck municipal budgets across Ontario. He was unsure how much Tecumseh might be liable for in the event the two municipalities meet a legal Waterloo. Mr. Wilkki added it would be almost impossible to work out a settlement with so many players involved in the suit. "We're not prepared to settle," said Helga Reidel, Windsor's CAO. "We feel we have a very strong case. "These (fees) were in the (provincial) legislation." Ms. Reidel said having a $100-million time bomb ticking in the city's treasury is a reminder of the necessity of keeping Windsor's fiscal house in order. The city has $130 million in its reserve fund. 'One Last Try' City council has delayed putting the Snow Angels program on ice this winter by agreeing to study how it might be kept alive while seeking help from community organizations. The 15-year-old program connects volunteers with the elderly and disabled who can't clear the snow from their sidewalks and driveways. Council heard that it would cost about $25,000 to run the program this winter if the city were to go it alone. That estimate was for the 300 to 350 volunteers needed to run the program. There has been an average of 80 volunteers in the program, only a quarter of what's needed, prompting administration to recommend suspending the Snow Angels for a year. "Before pulling the plug, we need to try everything we can to save it," said Coun, Fulvio Valentinis. "What about school community hours, involving other community organizational groups that can assist? It's worth one last try." WORCESTER TELEGRAM: Class Action Delays Boston Globe Sale --------------------------------------------------------- William Launder, writing for The Wall Street Journal, reports that The New York Times Co.'s sale of the Boston Globe and Worcester Telegram & Gazette to Boston Red Sox owner John Henry has been stalled by an unsettled class action lawsuit related to the Telegram & Gazette, the Times Co. confirmed on Oct. 22. Judge Shannon Frison of the Massachusetts Superior Court blocked the sale in an order issued on Oct. 18, a day before the planned closing of the sale to Mr. Henry. The order was issued in light of an unsettled class action lawsuit facing the Telegram & Gazette over news carriers' classification as independent contractors rather than employees, a clerk at the Worcester Superior Court said. The last-minute hitch was first reported on Oct. 22 by the Telegram & Gazette. Times Co. hasn't agreed to assume potential liabilities that could arise in a settlement of the class action lawsuit involving the Telegram & Gazette, Judge Frison wrote, based on review of a section of the sales agreement between Times Co. and Mr. Henry. Judge Frison has determined that Times Co. must assume responsibility for potential liabilities "at the maximal end of its foreseeable range--at least $60 million," according to her order. That amount is only $10 million less than the $70 million price the Times Co. agreed to accept for the Globe, Telegram & Gazette and other assets in its New England Media Group when it struck the deal with Mr. Henry in August. A spokeswoman for the Times Co. on Oct. 22 confirmed details of the court order and said that further details were expected from Judge Frison as early as Oct. 23. Mr. Henry wasn't immediately available for comment. ZIONS FIRST: Schwartz Urges Appeals Court to Allow Class Action --------------------------------------------------------------- Jessica Parks, writing for Philly.com, reports that Rep. Allyson Y. Schwartz (D., Pa.) and two other legislators are asking a federal appeals court to allow a class-action lawsuit against a bank in connection with telemarketing schemes that allegedly took more than $30 million from elderly and poor people. U.S. District Judge Juan R. Sanchez rejected class-action status in Reyes v. Zions First National Bank, ruling last month that the alleged offenses were too disparate to be tried together. The plaintiffs argued that Utah-based Zions continued providing banking services to at least six telemarketers in spite of warning signs that the Justice Department says are distinct "evidence of fraudulent conduct." The telemarketers would use various methods to lure alleged victims into revealing their bank account numbers. One claimed to be offering government grants or rebates, while others purportedly sold long-distance cards, medical discount cards, or gas vouchers. At least one of the telemarketing companies was busted by the FTC in 2008 and convicted by Sanchez in April. But another company named in the suit argues that its products are legitimate. Sanchez cited those differences in his ruling, arguing that the lawsuit "tends to treat the telemarketers as one entity." Schwartz, along with U.S. Sens. Robert P. Casey Jr. (D., Pa.) and Edward Markey (D., Mass.), filed an amicus brief on Oct. 21 with the U.S. Court of Appeals for the Third Circuit, arguing that it would be "financially unfeasible" for the victims to sue individually. * India's Section 245 of Companies Act Introduces Class Actions --------------------------------------------------------------- The Hindu Business Line reports that to protect investor interest, Section 245 of Companies Act 2013 has introduced the concept of class action suits, through which shareholders can initiate legal action against the company and auditors in the event of fraudulent activity. In a class action suit, a large group of individuals collectively bring a claim to court and/or in which a particular class of defendants are being sued. A class of shareholders can now claim damages or compensation or demand other suitable action against the auditor, including the audit firm, by filing an application with the Tribunal. The concept of collective lawsuit has its origin in the US, where it is widely prevalent. Joint auditor risks Companies Act 2013 proposes that the members of a company could ask for audit by more than one auditor. An auditor spends years in acquiring and understanding the critical elements of the financial statements and business of his/her client. Audit not only involves obtaining knowledge of, and experience with the client's industry, but also careful planning that takes into account client-specific risks and controls. The concept of joint audit would not only lead to increased cost for clients, as both firms would have to be paid for the engagement, it may also impact audit quality. When two firms undertake a joint audit, there is always a possibility that it will result in duplication of effort, resulting in unnecessary cost and oversight due to lack of co- ordination. Ushering in the "resident director" Under the new Companies Act, a new concept of "resident director" has been introduced. Every company should ensure that at least one director stays in India for at least 182 days in the previous calendar year. This applies to all companies -- listed, unlisted public and private limited companies. The definition of "residency" is along the lines prescribed under the Income-tax Act and Foreign Exchange Management Act. While on one hand directors have been allowed to participate in board meetings through video- conferencing and other audio-visual means, the importance of physical presence is also duly recognized. New regime for "alternate director" The new Companies Act has laid to rest one of the long-standing ambiguities related to "alternate director". Under Companies Act 1956, the 'alternate director' was supposed to vacate office on the return of the original director to the "state" in which board meetings are ordinarily held. Under the new provisions, the concept of "state" has been done away with, and the alternate director will vacate office on the return of the original director to India. The other interesting change is with regard to the appointment of the alternate director. Alternate can be appointed only when the original director is absent from India for three months or more. Further, a person can be appointed as an alternate director for an "independent director" only if he/she meets the qualifications of independence prescribed under the new Act. ********* 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 * * *