/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/131203.mbx C L A S S A C T I O N R E P O R T E R Tuesday, December 3, 2013, Vol. 15, No. 239 Headlines ADOBE SYSTEMS: Has Shoddy Security Protocols, Class Claims AMERICAN AIRLINES: Consumer Group Objects to Merger Settlement AMERICAN BREAST CANCER: Fraction of Funds Used Properly, Suit Says AMERICAN INTERNATIONAL: NY Sup. Ct. Tosses "Erlich" Class Action ANGELCARE: Recalls 600,000 Baby Monitors Due to Choking Risk BLINDS GALORE: Corded Window Blinds and Shades Recalled in Canada BLYTH INC: Faces Securities Suit Over Proposed Sale to CVSL BURLINGTON COAT: Nationwide Class Cert. Bid in Chalker Suit Tossed CARRINGTON MORTGAGE: Directed to Produce Information by Dec. 2 CREMINELLI FINE: Recalls Ready-To-Eat Pork Roast Products CUISINART: Recalls 7-Cup Food Processors Over Laceration Hazard CVS PHARMACY: Sued by Floater Pharmacists for Unpaid Overtime DELMONACO SPECIALTY: Recalls Bolognese Sauce Products DEPUY ORTHOPEDICS: Pennsylvania Woman Files Hip Implant Suit FACEBOOK INC: Seeks Dismissal of Suit Over Teens' Photos FEDEX CORP: Judge Approves $16.5-Mil. Class Action Settlement FIFTH THIRD: Labor Dep't. Files Petition to Revisit 401(K) Suit FIGUEROA GROUP: Class Cert. Denial in "Carter" Suit Upheld HEWLETT-PACKARD: Faces Securities Shareholder Class Action IMH FINANCIAL: Kurtz Parties Agree to Dismiss Settlement Appeal INTEVATION FOOD: Recalls Chicken Fettuccine Alfredo Products JAYONE FOODS: Recalls Trader Joe's Dried Seaweed Salad JEAN MADELINE: Accused of Paying Students Less Than Minimum Wage JOHNSON & JOHNSON: Hundreds of Women Join Mesh Class Action JOHNSON & JOHNSON: Offers Hip Replacement Settlement Program L'OREAL USA: Court Declines Final OK of "Richardson" Suit Accord LAZZARI FUEL: Accused of Fixing Prices of Mesquite Charcoal MARINA'S GERMAN: Recalls Two-Count Packages of Pastry Products MINDSPEED TECHNOLOGIES: Being Sold for Too Little, Suit Claims MOLEX INCORPORATED: Faces Securities Suit Over Koch Merger MOLEX INC: Faces Shareholder Suit by George Leon Family Trust NATIONAL COLLEGIATE: Football, Basketball Players Class Certified NEW ZEALAND: Canterbury Homeowners Meet to Discuss Settlement NOVARTIS PHARMA: Zometa Plaintiffs Can Seek Punitive Damages OFFICEMAX: Class Action Settlement Gets Preliminary Court Approval OHIO: Accused of Shortchanging Workers Comp Recipients PHYSIQUE ENHANCING: Recalls Enhanced & Alphamine Products PILOT FLYING J: Class Action Settlement Gets Final Approval POLICE UNION: Violates False Advertising Laws, Suit Says PRUDENTIAL INSURANCE: Sued Over Delayed Death Benefits' Interest RJ REYNOLDS: Appeal Court Upholds $27MM Tobacco Suit Judgment ROYAL CARIBBEAN: Securities Lawsuit in Florida Now Closed ROYAL CARRIBEAN: Stateroom Attendants Appeal Dismissal of Suit SEI INVESTMENTS: Dismissal of Lawsuit v. Subsidiary Affirmed SEI INVESTMENTS: Faces Suits in La. Over "Unfair" Trade Practice SERVICE CORPORATION: Certification of Case by Decedent Reversed SERVICE CORPORATION: Dismissal of Suit v. SCI Under Appeal SERVICE CORPORATION: "Helm" Plaintiff Appeals Decertification SERVICE CORPORATION: Suit Over Steward Acquisition on Hold SUMMERLIN HOSPITAL: Tuberculosis Investigation Spurs Class Action SUTTER HEALTH: Suit Over Health Care Market Monopoly Dismissed TESLA MOTORS: Faces "Rahimi" Securities Class Suit in California TESLA MOTORS: Baltodano Files Securities Class Suit in Calif. TREASURY WINE: Maurice Blackburn Dismisses Chief's Criticism UBC: Judge Allows Suit Over Destroyed Sperm Samples to Proceed UNITED STATES: May Defend Itself Against Suit Over AIG Bailout USPLABS LLC: Faces Suit Over Recalled OxyELITE Pro Supplement WELLS FARGO: Breach of Contract Claim in "Jackson" Suit Dismissed WOODBURY COUNTY, IA: Court Narrows Claims in "Clay" Case * Bill for Stricter Regulations on Compounding Pharmacies Passed * SEC Plans for Tougher Law Enforcement Amid Securities Cases ********* ADOBE SYSTEMS: Has Shoddy Security Protocols, Class Claims ---------------------------------------------------------- Adobe Systems' "shoddy security protocols" allowed hackers to steal credit card and log-in data from 38 million people last month -- a fiasco 13 times larger than Adobe initially reported, Courthouse News Service reports, citing a class action in California Federal Court. "The massive breach did not come as a surprise to industry experts familiar with Adobe's security practices who warned that Adobe's shoddy security protocols and track record of previous breaches made it susceptible to massive hack of the scope and depth that resulted," lead plaintiff Christian Halpain says in the lawsuit. Adobe announced the security breach on Oct. 3, stating that hackers had stolen 3 million credit and debit card records and log-in data from an undetermined number of users, Halpain claims. She says Adobe later acknowledged that about 38 million users had been affected. "Adobe promises its users that it will provide 'reasonable administrative, technical, and physical security controls' to protect their PII [personally identifiable information] and represents that it uses industry-leading security practices to do so, but Adobe's actual security practices are substandard in the industry and continue to result in breaches of Adobe's networks and software," according to the lawsuit. Halpain seeks class certification and punitive damages for breach of contract, breach of faith, unfair competition and violation of the California Data Breach Act. The Plaintiff is represented by: Eric Gibbs, Esq. GIRARD GIBBS LLP 601 California St., 14th Floor San Francisco, CA 94108 Telephone: (415) 981-4800 Facsimile: (415) 981-4846 E-mail: ehg@GirardGibbs.com AMERICAN AIRLINES: Consumer Group Objects to Merger Settlement -------------------------------------------------------------- Nick Brown, writing for Reuters, reports that a group of consumers who have sued American Airlines' bankrupt parent over its proposed merger with US Airways Group are now objecting to a settlement that would allow that merger to go forward. California resident Carolyn Fjord, leading a proposed class of plaintiffs in an antitrust lawsuit against the two airlines, filed court papers on Nov. 21 in U.S. Bankruptcy Court in Manhattan, arguing that consumers would be hurt by the tie-up, which would create the world's largest airline. It was the only objection filed ahead of a midday deadline to oppose the settlement, which was reached earlier this month in a separate dispute between the airlines and the U.S. Department of Justice. The DOJ had blocked the deal, which was to serve as the basis for American parent AMR Corp's exit from bankruptcy. The sides settled after the airlines agreed to give low-cost competitors more access to several key U.S. airports, including in New York and Washington. The settlement still needs bankruptcy court approval before the merger can close and AMR can exit bankruptcy. A court hearing was scheduled for Nov. 25. The Fjord group, whose lawsuit against the airlines is pending, is seeking a temporary restraining order to keep the deal from closing. "The proposed merger will create undue concentration in the airline industry in the United States and may result in increases in fares, reduction of capacity and availability of flights, reduced services, charges for amenities, loss of jobs" and other issues, the group said in the Nov. 21 filing. An AMR spokesman declined to comment on Nov. 21. A spokeswoman for US Airways had no immediate comment. The airlines have rejected the group's allegations, saying in court papers that the move would not harm competition. AMERICAN BREAST CANCER: Fraction of Funds Used Properly, Suit Says ------------------------------------------------------------------ Isabella Janovick, on behalf of herself and all others similarly situated v. American Breast Cancer Foundation, Inc., a Maryland Corporation; and Does 1-10, inclusive, Case No. 3:13-cv-02697-DMS- KSC (S.D. Cal., November 8, 2013) alleges that instead of the millions of dollars raised in the name of protecting underserved populations from breast cancer, the vast majority of the millions raised goes to ABCF's operators and the for-profit companies ABCF hires to solicit donations, like corporate fundraisers. Ms. Janovick contends that this means that a mere fraction from every dollar raised actually goes to people in need. She asserts that the Defendant fails to disclose this fact to its donors. ABCF is a Maryland corporation and a charitable organization subject to tax exemption under the Internal Revenue Code. ABCF's mission statement states: "to provide financial assistance for breast cancer screenings and diagnostic tests for uninsured and underserved individuals, regardless of age or gender." The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Plaintiff is represented by: Scott J. Ferrell, Esq. Richard H. Hikida, Esq. Victoria C. Knowles, Esq. NEWPORT TRIAL GROUP 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 Telephone: (949)706-6464 Facsimile: (949)706-6469 E-mail: sferrell@trialnewport.com rhikida@trialnewport.com vknowles@trialnewport.com AMERICAN INTERNATIONAL: NY Sup. Ct. Tosses "Erlich" Class Action ---------------------------------------------------------------- Justice Shirley Werner Kornreich of the Supreme Court of New York County granted motions to dismiss the class action captioned NUSYN ERLICH, A/KA/ NATHAN ERLICH and CHAYA ERLICH, INDIVIDUALLY and ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, Plaintiffs, v. AMERICAN INTERNATIONAL GROUP, INC., NEW HAMPSHIRE INSURANCE CO., and EVEREST REINSURANCE COMPANY, Defendants, 652672/2012, 2013 NY Slip Op 51827(U). This putative class action challenged the ability of insurance companies to retain settlement proceeds in subrogation actions against deep pocketed third-party tortfeasors, when the insured has recovered the full value of the policy, but not its uninsured losses. The Plaintiffs' operative pleading listed six causes of action: (1) a declaratory judgment as to defendants' subrogation business practices; (2) injunctive relief as to such practices; (3) violation of the doctrine of equitable subrogation; (4) violation of GBL Section 349; (5) unjust enrichment and constructive trust; and (6) an accounting. Plaintiffs contend that they are entitled to two categories of damages: (a) "held back" amount of $11,547.20, contending that they are entitled to a full reimbursement of their deductible and that the Policy does not entitle NHIC to hold back depreciation, and (b) Everest must disgorge its settlement with Greenway Home Products, Inc. since an insurance company is not entitled to keep subrogation proceeds until its insured has been fully compensated for all of its uninsured losses. Defendants American International Group, Inc. (AIG), New Hampshire Insurance Co. (NHIC), and Everest Reinsurance Company (Everest) filed the motions to dismiss. Justice Kornreich ruled that plaintiffs' claim to the "held back" amount is wholly without merit as the Policy expressly permits the depreciation deduction. In addition, she said, neither the policy nor any New York legal authority supports plaintiffs' contention that they are entitled to a refund of their deductible. As for plaintiffs' claims against AIG, the claims would warrant dismissal even if plaintiffs' claims survived against NHIC and Everest, since AIG, a holding company, has no contractual relationship to plaintiffs, did not issue any relevant insurance or reinsurance, and was not a party to the Subrogation Action. AIG simply has nothing to do with this case, ruled the Supreme Court. Accordingly, the Amended Complaint is dismissed with prejudice, Justice Kornreich concluded. A copy of the Supreme Court's November 7, 2013 Opinion is available at http://is.gd/RcbYW5from Leagle.com. Napoli Bern Ripka Shkolnik, LLP & Ambrecht & Maloney, PLLC for plaintiffs. Robinson & Cole LLP, for AIG and NHIC. Budd Larner, P.C., for Everest. ANGELCARE: Recalls 600,000 Baby Monitors Due to Choking Risk ------------------------------------------------------------ The U.S. Consumer Product Safety Commission (CPSC), in cooperation with Angelcare Monitors Inc.(R), of Quebec, Canada, is announcing a voluntary recall to provide cord covers for 600,000 Angelcare Movement and Sound Monitors with Sensor Pads. The cord attached to the baby monitor's sensor pad is placed under the crib mattress, which poses a strangulation risk if the child pulls the cord into the crib and it becomes wrapped around the neck. Angelcare and CPSC have received reports of two infant cord strangulation deaths. In November 2011, a 13-month-old female died in San Diego, California, and, in August 2004, an 8-month-old female died in Salem, Oregon. In both fatalities, the cord from the sensor pads was pulled into the crib by the infant. In addition, there have been two reports of infants who became entangled in cords of Angelcare baby monitor models, which did not result in fatalities. In these incidents, it could not be determined if the "sensor pad cord" or the "monitor cord" was involved in the incident. The recall involves the Movement and Sound Monitor manufactured by Angelcare. This design of baby monitor includes a unique sensor pad placed inside the crib, under the mattress, to monitor movement of the baby. An electrical cord about 11 feet long is permanently connected from the sensor pad to the nursery monitor unit. The hazard is created by a cord within reach of a baby inside the crib. The cord can be pulled into the crib and can wrap around the child's neck. The recall involves all versions of Angelcare sensor monitors including model numbers: AC1100, AC201, AC300, AC401 AC601 and 49255 that did not include rigid cord covers, offered in the remedy. The model number is located on the back of the nursery monitor unit. The monitors were manufactured between 1999 and 2013. Angelcare is providing consumers with a repair kit that includes rigid protective cord covers through which the sensor pad cords can be threaded, a new, permanent electric cord warning label about the strangulation risk, and revised instructions. The recalled baby monitors were sold at Babies R Us/Toys R Us, Burlington Coat Factory, Meijer, Sears, Walmart, Amazon.com, Target.com, Overstock.com, and nearly 70 small baby specialty stores, from October 1999 through September 2013 for about $100to $300. Consumers should immediately make sure cords are placed out of reach of the child and contact Angelcare toll-free at (855)355- 2643 between 8:00 a.m. and 8:00 p.m. ET Monday through Friday or visit the firm's website at http://www.angelcarebaby.comto order the free repair kit. In February 2011, CPSC issued a safety alert warning consumers that industry-wide there had been seven reports of strangulation in baby monitor cords since 2002. Since that alert, the number of death reports has risen to eight of which two involved the Angelcare monitors with sensor cords. CPSC has a safety alert Infants Can Strangle in Baby Monitor Cords and conducted an information and education campaign with JPMA in which Angelcare has taken an active role to raise awareness on the hazards associated with baby monitor cords. Parents and caregivers should visit CPSC's Crib Information Center at http://www.cpsc.gov/cribs for additional baby monitor cord safety information and they should make sure all cords are out of arm's reach of children. BLINDS GALORE: Corded Window Blinds and Shades Recalled in Canada ----------------------------------------------------------------- Starting date: November 22, 2013 Posting date: November 22, 2013 Type of communication: Consumer Product Recall Subcategory: Household Items Source of recall: Health Canada Issue: Product Safety Audience: General Public Identification number: RA-36899 Affected products: Corded Bottom-Up Top-Down (BUTD) style Window Blinds and Shades with cord joiners The recall involves certain corded bottom up top-down (BUTD) window blinds and shades sold in Canada. Bottom up top-down blinds allow for control of both the top and bottom of the blind. These products are available by custom order and at retail. The following Brands may be affected by this recall: -- Bali, -- Blinds to Go, -- Blinds-galore, -- Graber, -- Levolor-Kirsch, -- Phase II, -- Shade-o-matic, -- Signature Series. The recall does not involve "cordless" versions" of bottom-up top- down style window blinds and shades. All other corded BUTD brands listed above are potentially affected by the recall. Health Canada has determined that the recalled blinds do not meet the 2009 Corded Window Coverings Regulations and pose a strangulation hazard. The various designs of the products do not properly address the hazards of exposed operating cords, which can create loops. Young children may pull looped cords around their neck causing a strangulation and entanglement hazard. Health Canada is aware of one fatality in Canada (which occurred in 2011) and one fatality in US (which occurred in 2008) from incidents involving these products. Both of the children were under three years of age. Children can become entangled in blind cords, which can quickly lead to strangulation and even death. Health Canada recommends cordless window coverings. An unknown amount of the recalled products were sold in Canada. Recalled products were sold up until November 2013 in Canada. Corded window covering products sold before 2009 were sold when the Regulation was not in place. Place of origin: Various Companies: Distributor Blinds galore Distributor Blinds to Go Distributor Levolor-Kirsch Distributor Phase II Distributor Shade-O-Matic Distributor Signature Series Distributor Springs Window Fashions A window covering with a top down bottom up feature has seven parts pointed out: 1 head rail, 2 intermediate rail, 3 operating cord for the intermediate rail, 4 snap tassel and cord joiner near the end of the operating cord, 5 operating cord for the bottom rail, 6 shade fabric, 7 bottom rail A close-up of the operating cord for the intermediate rail with arrows pointing to two parts: 1, multiple, separate cords above the cord joiner which form the hazardous loops referred to in this alert, 2, a single larger cord below the cord joiner which is used to manipulate the operating cord Consumers who have a corded BUTD window blind or shade as described above should contact the WCSC immediately to order a free retrofit kit by visiting the WCSC website or by calling 1-800-506-4636. The retrofit kit converts the joined cord device for the intermediate rail operating cord to separate cords and includes cord cleats to help keep cords out of reach of young children. BLYTH INC: Faces Securities Suit Over Proposed Sale to CVSL ----------------------------------------------------------- Courthouse News Service reports that directors are selling Blyth Inc. too cheaply through an unfair process to CVSL Inc., for $16.75 a share or $269 million, shareholders claim in Delaware Chancery Court. BURLINGTON COAT: Nationwide Class Cert. Bid in Chalker Suit Tossed ------------------------------------------------------------------ District Judge Steven D. Merryday denied a motion for conditional certification of a nationwide class in the case captioned ELIZABETH CHALKER, Plaintiff, v. BURLINGTON COAT FACTORY OF FLORIDA, LLC, et al., Defendants, CASE NO. 8:12-CV-2755-T-23TBM, (M.D. Fla.). The plaintiff alleged violations of the Fair Labor Standards Act. The plaintiff alleged that Burlington Coat Factory forced her and other Loss Prevention Associates to work overtime, "off-the- clock," and without compensation. Judge Merryday held that the plaintiff presented evidence that Burlington Coat Factory discouraged overtime. However, the plaintiff has presented no evidence of a "common scheme applied uniformly" and nationwide across more than five hundred stores to "force [employees] to work off the clock," she added. To the contrary, Judge Merryday continued, the plaintiff's evidence suggests, at most, that one or more store managers, acting independently and not in accord with a common policy (and in defiance of stated policy), coerced some employees into working overtime without compensation. Also, the defendants have presented evidence that demonstrates an array of consequential differences between the employees, and those differences defeat the prospect of achieving judicial economy by resort to a collective action, the Court concluded. A copy of the District Court's November 7, 2013 Order is available at http://is.gd/jMuVFIfrom Leagle.com. CARRINGTON MORTGAGE: Directed to Produce Information by Dec. 2 -------------------------------------------------------------- On November 1, 2013, Carrington Mortgage Services, LLC removed the case TWYLA PRINDLE, individually and on behalf of a class of persons similarly situated, Plaintiff, v. CARRINGTON MORTGAGE SERVICES, LLC, Defendant, CASE NO. 3:13-CV-1349-J-34PDB, (M.D. Fla.) from the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida. Carrington Mortgage Services asserted that the M.D. Fla. Court has jurisdiction over the action pursuant to 28 U.S.C. Sections 1332(a) and 1441. Specifically, Carrington Mortgage Services alleged that the Court has diversity jurisdiction over this action because Plaintiff, Twyla Prindle, is a citizen of Florida, while all members of Carrington Mortgage Services are citizens of Delaware and California. Carrington Mortgage Services based its citizenship allegation on the fact it is a Delaware limited liability company wholly owned by Carrington Mortgage Holdings, LLC, which is, in turn, a Delaware limited liability company owned by Carrington Holding Company, LLC, and Darren Fulco, individually. According to Defendant, Carrington Holding Company is a Delaware limited liability company, and Darren Fulco is a citizen of California. According to District Judge Marcia Morales Howard, the Defendant has failed to identify the citizenship of Carrington Holding Company's members. Therefore, Mortgage Services's citizenship is not properly alleged in the Notice of Removal, and the Court's subject matter jurisdiction over the action is not established. Judge Howard, however, added that the Court will give Carrington Mortgage Services an opportunity to identify Carrington Holding Company's citizenship. The Plaintiff was given until December 2, 2013, to provide the Court with sufficient information so that it can determine whether it has diversity jurisdiction over this action. A copy of the District Court's November 6, 2013 Order is available at http://is.gd/8vM1lffrom Leagle.com. CREMINELLI FINE: Recalls Ready-To-Eat Pork Roast Products --------------------------------------------------------- Creminelli Fine Meats, LLC, a Salt Lake City, Utah, establishment, is recalling 31 pieces (approximately 101 pounds) of fully-cooked- not-shelf-stable, ready-to-eat pork roast products because they were produced under the wrong Hazard Analysis and Critical Control Point (HACCP) plan and for mislabeling, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The following products are subject to recall: -- 3-4-lb. packages of "Creminelli Artisan Deli Porchetta Seasoned Boneless Pork Roast" Each package bears the establishment number "34644" inside the USDA mark of inspection. The products were sold exclusively through internet sales to 28 customers, who have been identified by the company. These products were delivered to customers between Oct. 15, 2013 and Nov. 15, 2013. These products were not distributed to retail stores or restaurants, and other products produced by the company are not impacted. The problem was discovered by the Kansas State Department of Agriculture during routine surveillance. The product is being recalled because the company was using a HACCP plan for a different category of ready-to-eat products. FSIS has received no reports of illness due to consumption of these products. Anyone concerned about an illness should contact a health care provider. FSIS routinely conducts recall effectiveness checks to verify that recalling firms notify their customers of the recall and that steps are taken to make certain that recalled product is no longer available to consumers. Consumers and members of the media who have questions about the recall can contact the company at (801) 428-1820 or info@creminelli.com. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. The online Electronic Consumer Complaint Monitoring System can be accessed 24 hours a day at: http://www.fsis.usda.gov/reportproblem. CUISINART: Recalls 7-Cup Food Processors Over Laceration Hazard --------------------------------------------------------------- U.S. Consumer Product Safety Commission disclosed that consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. Recall Summary Name of Product: Cuisinart 7-cup food processors Hazard: The reversible slicing/shredding disc can loosen when in use and the blade can strike and break the food processor's cover. The cover's broken plastic pieces can hit consumers, posing a laceration hazard. Remedy: Consumers should immediately stop using the recalled food processors and contact Cuisinart to receive a free replacement lid and reversible slicing/shredding disc. Consumer Contact: Cuisinart toll-free at (877) 339-2534 from 7 a.m. to 11 p.m. ET Monday through Friday, and from 9 a.m. to 5:30 p.m. ET Saturday or Sunday, or online http://www.cuisinart.comand click on Recall for more information. Photos are available at http://is.gd/I9PvOA Recall Details Units: About 25,000 Description: This recall involves nine models of Cuisinart food processors including, MFP-107, MFP-107BC, MFP-107BCWS, MFP-107BK, MFP-107BKWS, MFP-107DCWS, MFP-107MGSLT, MFP-107MR or MFP-107WS. The model number is on the underside of the food processor base. The food processors were sold in white, black, brush chrome, metallic gray, metallic red and silver colors. They have a seven cup plastic work bowl and three push buttons "On," "Pulse" and "Off." Cuisinart is stamped on the front. Incidents/Injuries: Cuisinart has received one report of an incident involving a consumer being struck on the cheek by a piece of the food processor's plastic cover that cracked off while the reversible slicing disc was being used. No medical attention was sought. Read more about Cuisinart Recalls Food Processors Due to Laceration Hazard -- BWWFood + WineWorld by http://www.broadwayworld.com Sold at: Belk, Best Buy, Dillards, J.C. Penney, Macy's, Sears, Williams-Sonoma and other stores nationwide, and online at Amazon.com and Zappos.com from October 2012 through June 2013 for about $100. Distributor: Cuisinart, a division of Conair Corp., of Stamford, Conn. Manufactured in: China The U.S. Consumer Product Safety Commission (CPSC) is still interested in receiving incident or injury reports that are either directly related to this product recall or involve a different hazard with the same product. Please tell us about your experience with the product on SaferProducts.gov. To report a dangerous product or a product-related injury go online to http://www.SaferProducts.govor call CPSC's Hotline at (800) 638-2772 or teletypewriter at (301) 595-7054 for the hearing impaired. Consumers can obtain news release and recall information at http://www.cpsc.govon Twitter @OnSafety or by subscribing to CPSC's free e-mail newsletters. CPSC Consumer Information Hotline Contact us at this toll-free number if you have questions about a recall: 800-638-2772 (TTY 301-595-7054) Times: 8 a.m. 5:30 p.m. ET; Messages can be left anytime Call to get product safety and other agency information and to report unsafe products. CVS PHARMACY: Sued by Floater Pharmacists for Unpaid Overtime ------------------------------------------------------------- Courthouse News Service reports that CVS Pharmacy stiffs "floater pharmacists" for overtime, a class action claims in California Superior Court. DELMONACO SPECIALTY: Recalls Bolognese Sauce Products ----------------------------------------------------- DelMonaco Specialty Foods, a Morgan Hill, Calif. establishment, is recalling approximately 5,616 pounds of Armanino brand Bolognese sauce products because of an undeclared allergen and misbranding, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The product contains milk, a known allergen which was declared on the product label; however the label was not applied to all the products in each lot. The Bolognese Sauce with Beef & Pork products were produced on September 25, September 27, and November 7, 2013. The following products are subject to recall: -- 7.5 pound cases containing twelve 10-ounce bags of "Bolognese Sauce with Beef & Pork" with case number 31113 printed on the interior bag. -- 7.5 pound cases containing twelve 10-ounce bags of "Bolognese Sauce with Beef & Pork" with case number 27013 printed on the interior bag. -- 12 pound cases containing four 3-pound bags of "Bolognese Sauce with Beef & Pork" with case number 31113 printed on the interior bag. -- 12 pound cases containing four 3-pound bags of "Bolognese Sauce with Beef & Pork" with case number 26813 printed on the interior bag. The products subject to recall are missing the USDA mark of inspection with establishment number "EST. 17702" inside. These products were sold for institutional use in Hayward and San Francisco, Calif. The problem was discovered by the company's customer. FSIS and the company have received no reports of adverse reactions due to consumption of these products. Anyone concerned about a reaction should contact a health care provider. FSIS routinely conducts recall effectiveness checks to verify that recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. Media outlets with questions regarding the recall can contact Arnold Avalos, VP of Operations, at 408-500-4118. Consumers with questions regarding the recall can contact Sandra Johnson, Sales Coordinator, at 408-500-4114. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. The online Electronic Consumer Complaint Monitoring System can be accessed 24 hours a day at: http://www.fsis.usda.gov/reportproblem DEPUY ORTHOPEDICS: Pennsylvania Woman Files Hip Implant Suit ------------------------------------------------------------ Jon Campisi, writing for The Pennsylvania Record, reports that a central Pennsylvania woman is suing the makers of an artificial hip over allegations that the device failed nearly six years after it was implanted into her body. Martha L. Strunck, who resides in York, Pa., filed suit in U.S. District Court in Philadelphia Nov. 18 against DePuy Orthopedics and Johnson & Johnson over the injuries she claims to have sustained a result of having had the ASR Acetabular system hip replacement device surgically placed in her body back in the summer of 2007. On June 13 of this year, just about six years after her initial operation, the plaintiff had to undergo a revision surgery to replace the defective device, her lawsuit states. The woman claims she suffered from metal poisoning and metalosis due to metal debris from the defective product entering her body. At some point following the initial surgery, Ms. Strunck says she received a recall letter that spoke of a small number of DePuy hips being recalled and that she should follow up with her physician. A subsequent MRI test revealed no problems, however, and the plaintiff was told that because she was having no apparent problems, the recall likely did not affect her, the complaint reads. This February, however, Ms. Strunck began experiencing pain and difficulties with her right leg and follow-up lab work revealed some concerns with respect to elevated chromium and cobalt levels, the lawsuit states. Three months later, the woman's blood levels of chromium and cobalt tested much higher, the complaint states, and she was having increasing difficulties with her hip so a revision surgery was scheduled. "Plaintiff Martha L. Strunck did not become aware that the DePuy hip may be a problem until February 2013 when she began experiencing pain," the suit states. The defendant medical device manufacturers had, during the application approval process, asserted that the ASR and ASR XL Acetabular System did not raise any issues with regard to safety or effectiveness, according to the complaint. "The Defendants advertised the ASR as being superior than the competition in that the ASR was the device of choice for those wanting to be physically active, for those wanting a high performance hip replacement, and that the system had a strong clinical history and was less prone to wear," the suit states. "Contrary to the Defendants' representations, the ASR was/is prone to premature failure, unacceptably high failure rates when compared with other metal-on-metal prostheses, and causes severe injuries to patients due to metal debris that is released in the patient." The lawsuit claims that the defendants' device produces a large amount of metallic debris as the metal components wear, with the debris causing damage to muscles, tendons and other soft tissue. The defects also are said to interfere with intended bone growth and results in high levels of metal in a patient's bloodstream. The defendants are accused of failing to adequately test the ASR design before marketing the product to consumers and the medical community. "The Defendants knew or should have known that the ASR device was defective, unsafe and not suitable for its intended purpose," the complaint reads. The complaint goes on to note that reports of problems associated with the hip replacement device rose sharply between the years of 2006 and 2009, and that there was information coming out of Europe and Australia, where the companies had been selling the ASR, that the failure rates were "unacceptably high." In the spring of 2010, the defendants issued a warning to surgeons in the U.S. that the device had a higher than expected failure rate. The letter came three months after the device manufacturers voluntarily withdrew the ASR device from the Australian market, the lawsuit states. " . . . the Defendants had knowledge that the ASR devices had a higher than acceptable failure rate, were not safe and that the ASR was in fact enhancing and causing injuries," the lawsuit states. "Even so, the Defendants refused to concede the product was defective and delayed recalling the ASR device such that ASR devices continued to be used in hip replacement surgeries." The plaintiff seeks damages for lost wages and future lost earning capacity, medical expenses, pain and suffering, scarring, disfigurement, embarrassment, humiliation and loss of life's enjoyment. The complaint contains counts of strict liability, negligence, and breach of implied and express warranties. Ms. Strunck is being represented by attorney Jaime D. Jackson of the Lancaster, Pa. law firm Atlee Hall. The federal case number is 2:13-cv-06716-ER. FACEBOOK INC: Seeks Dismissal of Suit Over Teens' Photos -------------------------------------------------------- Elizabeth Warmerdam, writing for Courthouse News Service, reports that Facebook demands dismissal of a federal class action alleging that the social ads it features wrongly include the names and photos of teenage users. Originally filed over two years ago in Illinois, the lawsuit has since been amended twice and was transferred to California pursuant to Facebook's terms of use on venue for legal actions. Seven Illinois teenagers, suing through their parents, sit as the lead plaintiffs in the class action, which alleges that Facebook profits of the use of their names and likenesses by republishing their actions -- such as when they "Like" another Facebook page -- alongside a related advertisement. In its latest motion to dismiss, Facebook argues that the current version of the complaint should be dismissed, as the teen users failed to show that the ads caused financially injury. The complaint does not suggest that the teens could have received compensation for the alleged ads at issue, or that their prospects for earning money from the ads in the future have been diminished, Facebook says. The users do not "allege that their social actions -- much less their names and profile pictures -- actually have any such value," the motion to dismiss states. "And, in any event, courts have repeatedly found that this type of generic allegation of value does not confer standing, because the use of demographic information has 'never been considered a[n] economic loss to the subject.'" The fact that Facebook earns revenues from ads "does not mean plaintiffs suffered a cognizable injury to their interest in their names or likenesses," Facebook says. The users claim that the ads at issue violate the Illinois Right of Publicity Act, which requires companies to obtain a person's consent before using his name and photo in endorsements. The teens say that even if they consented to Facebook's use of their names and photographs for advertisements, they lacked the capacity to legally do so because they are minors. Facebook contends, however, that the teen users cannot seek relief under the Illinois statute as they agreed under the terms of use that all claims arising out of their use of Facebook would be governed by California law. Facebook also argues that "the mere alleged violation of a statute is not sufficient, without an allegation that the plaintiff also suffered a concrete injury-in-fact." The users are also attempting to argue that Facebook's terms of service -- known as the Statement of Rights and Responsibilities (SRR) -- should be invalidated. U.S. District Judge G. Patrick Murphy in Illinois already ruled in his transfer order, however, that the SRR is enforceable. The users, therefore, cannot relitigate this claim, Facebook says. Facebook also points out that the teen users have received and continue to receive the benefits of Facebook. "Plaintiffs have been unable to allege any cognizable claims, after having had many chances to do so," the social networking website's motion states. "Their claims should now be dismissed with prejudice." The plaintiffs are C.M.D. by his next friend Jennifer DeYong; T.A.B. by her next friend Patricia Isaak; H.E.W. and B.A.W. by their next friend Jami Lemons; A.D.Y. and R.P.Y. by their next friend Robert Young Jr.; and R.R.C., by her next friend Robyn Courtway. The Defendant is represented by: Michael G. Rhodes, Esq. Matthew D. Brown, Esq. Jeffrey M. Gutkin, Esq. COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111-5800 Telephone: (415) 693-2000 Facsimile: (415) 693-2222 E-mail: rhodesmg@cooley.com brownmd@cooley.com jgutkin@cooley.com The case is C.M.D., et al. v. Facebook, Inc., Case No. 12-CV- 01216-RS, in the U.S. District Court for the Northern District of California. FEDEX CORP: Judge Approves $16.5-Mil. Class Action Settlement ------------------------------------------------------------- Zach Warren, writing for Inside Counsel, reports that between 2008 and 2011, FedEx Corp. allegedly overcharged nearly half-a-million business customers for shipping, adding higher residential surcharges to their fees. But now, with the settlement of a three-year-old class action lawsuit, it's FedEx who will need to pay in the end. On Nov. 22, a federal judge approved a FedEx payment of $16.5 million to settle the class action lawsuit, refunding roughly 475,000 government and business customers. Over the course of three years, FedEx allegedly charged as much as $3 a shipment more than normal shipping costs despite telling customers that they were receiving a reduced business rate. FedEx and the lawyers from the class action suit, which was brought by law firms Manjunath A. Gokare PC and Goldstein, Borgen, Dardarian & Ho, originally agreed to a settlement in July, pending court approval. Through the terms of the settlement, FedEx admits no guilt. The company does, however, likely face an additional $5 million in fees related to the case, the estimated cost for correcting inaccurate internal databases and changing internal policy procedures to ensure a repeat does not occur. "We highly value our relationships with our customers and these relationships are at the core of all we do," said Ben Hunt, a FedEx spokesman, in a statement to the Wall Street Journal. "We agreed to settle this matter to avoid the cost and uncertainty of continued litigation." According to leaked internal emails, FedEx become aware of the problem as the result of one sales executive. Alan Elam noticed the discrepancies and reported them to his superiors. In the emails, Mr. Elam wrote that he believed the company was "systemically overcharging" businesses with the residential surcharges. However, Mr. Elam did not receive an indication from his superiors that the problem would be fixed. As a result, he became frustrated, writing in an email, "I have brought this to the attention of many people over the past five or six years, including more than one managing director, and no action has been taken to address it." The class action lawsuit later used Mr. Elam's emails to attempt to demonstrate that FedEx willfully ignored any attempts to stop charging businesses the residential surcharge. FIFTH THIRD: Labor Dep't. Files Petition to Revisit 401(K) Suit --------------------------------------------------------------- Hazel Bradford, writing for Pensions & Investments, reports that the appeal of company stock as an investment option in defined- contribution plans could dim considerably if the Labor Department succeeds in having the Supreme Court revisit the issue of fiduciary prudence in managing that option. The department's petition to the Supreme Court, asking it to hear a Fifth Third Bancorp case, was filed Nov. 12 by the U.S. solicitor general's office. It seeks to take advantage of a recent split in judicial circuits that could make it easier for participants to challenge employers when company stock loses value. If the high court accepts the case this session, as is widely expected, it could have a chilling effect on plan sponsors, but it might also resolve inconsistencies from lower court rulings, said Fifth Third Bancorp spokesman Larry Magnesen. "We were glad to hear that the solicitor general has recommended that the Supreme Court hear this case." Scott Macey, president and chief executive of the ERISA Industry Committee in Washington, which represents corporations on benefit issues, said: "Many, many plans across the country have employer-shares funds. If they have to worry about the constant threat of litigation because of variations in stock prices, I can see them getting scared away." She added: "Then you're just inviting the plaintiffs' bar to file lawsuits anytime there is a drop in the stock. And in a lot of cases [scaring companies away] will be to the detriment of the employees" who like owning part of their company, he said. DOL officials recognize employers' concerns of increased litigation, but counter that such lawsuits will still require strong evidence, while weak cases risk sanctions and court costs. "If all you've got is a market drop, that's absolutely not a case," said a DOL official who declined to be identified. "ERISA gives [participants] ready access to the courts. People need to be permitted to make their case." In many stock-drop cases, district and appellate court judges have supported the companies, ruling a fiduciary overseeing the company stock option is entitled to a "presumption of prudence" unless a breach of fiduciary duties can be shown or the company is in a dire economic situation. "Generally the court cases have been favorable" to plan sponsors, said Ed Ferrigno, vice president of Washington affairs for the Plan Sponsor Council of America. "Congress has always recognized the need to balance the interests" of employee ownership and participant protection, he said. That began to change after a September 2012 ruling from the 6th U.S. Circuit Court of Appeals in Cincinnati. That ruling revived a proposed class action by participants in Fifth Third's 401(k) plan against Fifth Third Bancorp. Ruling in Dudenhoeffer vs. Fifth Third Bancorp et al., the appeals court acknowledged rulings by other circuits that an employee stock plan fiduciary's decision to remain invested in company stock "is presumed to be reasonable," but said that presumption does not apply at the initial stage of a case, despite opposite conclusions reached by other circuits. Plaintiffs in the case against Fifth Third alleged that the bank's 401(k) plan fiduciaries breached their duties by allowing participants to continue to invest in the company's stock when its value plummeted by 74%, in part because of the bank's subprime mortgage lending practices. While stock-drop class actions often lead to settlements to avoid expensive litigation -- even when the presumption of prudence is not applied -- they have produced few legal victories for plan participants. If the Supreme Court accepts the petition, the case "has real potential to upset the apple cart in a big way," said Jeremy Blumenfeld -- jblumenfeld@morganlewis.com -- an attorney with Morgan Lewis & Bockius, which handles similar cases for plan sponsors but isn't involved in this one. The judicial split created by the 6th Circuit ruling led Fifth Third Bancorp to appeal the decision to the Supreme Court, which in March asked the government to weigh in on the case. While the court has declined to review numerous other stock-drop cases, the difference this time is that the solicitor general is doing the asking, on behalf of the Labor Department, and at the behest of the Supreme Court. DOL officials declined to comment on the recent petition. But in friend-of-the-court briefs filed in similar cases -- involving Citigroup Inc. and The McGraw-Hill Cos. -- DOL officials warned that the other lower court rulings were "a windfall for fiduciaries" who would no longer have the expense of complying with ERISA-mandated prudence obligations, and could "put hundreds of billions of dollars in pension plan assets at undue risk." "It appears the 6th Circuit has taken what DOL has said to heart," said Thomas E. Clark Jr., chief compliance officer at FRA/PlanTools, a fiduciary consulting firm. In their petition to the Supreme Court, Solicitor of Labor M. Patricia Smith, Solicitor General Donald Verrilli Jr. and staff attorneys argue the presumption of prudence does not apply in stock-drop cases. "ERISA's text and purposes do not call for application of a presumption at any stage of the proceedings," the petition states. While the Fifth Third participants will have to substantiate their allegations at subsequent stages of the case, "their well-pleaded, plausible allegations suffice to state a claim," the government lawyers wrote. "We don't think any special presumption should apply to investors in company stock," said the DOL official. He noted the justices are not influenced by lower court rulings. For Mr. Clark, a former ERISA litigator, the case is part of "a significant shift in thinking by industry experts that company stock investment funds are no longer worth the risk. Compared to other investment options in a plan, a company stock fund requires a higher level of due diligence, given the higher potential for inherent conflict of interest," said Mr. Clark. "You're doing a disservice to yourself as a fiduciary and your plan's participants if the fund is kept blindly. Its continued inclusion should meet a well-documented and well-considered goal." A Supreme Court resolution would provide some much-needed guidance. "If they take this case," said Mr. Clark, "we will get a resolution to an issue that has been outstanding for the last 20 years." FIGUEROA GROUP: Class Cert. Denial in "Carter" Suit Upheld ---------------------------------------------------------- The Court of Appeals of California, Second District, Division Two affirmed a trial court ruling denying class certification in the appellate case, BRANDI CARTER, Plaintiff and Appellant, v. FIGUEROA GROUP, INC., Defendant and Respondent, NO. B240870. Plaintiff and appellant Brandi Carter filed her complaint against defendant and respondent Figueroa Group, Inc., alleging a number of Labor Code violations and other employment-related claims. She sought to certify a class of individuals who performed as nude or semi-nude dancers at a club owned and operated by the Figueroa Group. The trial court denied the motion, ruling appellant failed to meet her burden to satisfy each element of the community of interest requirement necessary for class certification. The Calif. Appeals Court agreed with the Trial Court saying Ms. Carter did not show either that common questions predominated or that she was a typical and an adequate class representative. Accordingly, substantial evidence supported the trial court's order, ruled the Appeals Court. A copy of the Appeals Court's November 7, 2013 Opinion is available at http://is.gd/8qTF60from Leagle.com. Knapp, Petersen & Clarke and Stephen M. Harris -- smh@kpclegal.com -- for Plaintiff and Appellant. For Defendant and Respondent: Steven V. Rheuban, Esq. Robert C. Hayden, Esq. Law Offices of Rheuban & Gresen 15910 Ventura Blvd #1610 Encino, CA 91436, United States Telephone: (818) 815-2727 HEWLETT-PACKARD: Faces Securities Shareholder Class Action ---------------------------------------------------------- Casey Sullivan, writing for Reuters, reports that a California federal judge has ordered Hewlett-Packard Co. and Chief Executive Meg Whitman to defend a securities shareholder class action that claims they knew statements about HP's acquisition of software company Autonomy were misleading. At the heart of the lawsuit are claims that HP, its executives and directors made misleading statements about the acquisition of the British company, bought in 2011 for $11.1 billion, and the subsequent write-down of roughly $9 billion of HP's assets. Senior District Judge Charles Breyer issued his ruling in San Francisco federal court on Nov. 26. The ruling also dismissed claims against five other former directors and executives of the information technology supplier, including one-time CEO Leo Apotheker. The securities class action against HP and its executives was brought last November by investors including lead plaintiff PGGM Vermogensbeheer B.V., a Dutch pension administrator operating in the healthcare and social work sectors. Though ordering HP and Whitman to defend the action, Judge Breyer took issue with the plaintiffs' arguments in the 20-page ruling. "The complaint fails to establish any coherent motive as to why defendants would knowingly purchase a company for several times its actual value or that they knew Autonomy's accounting was problematic," said Judge Breyer. The judge also limited the claims that can be brought against Whitman and HP. Judge Breyer said that the investors' claims against the company and its CEO are limited to the period after May 23, 2012, not before. Lawyers for HP, Whitman, the plaintiffs and the other HP defendants did not respond to requests for comment. IMH FINANCIAL: Kurtz Parties Agree to Dismiss Settlement Appeal --------------------------------------------------------------- IMH Financial Corp. on Nov. 25 disclosed that on November 15, 2013, the Kurtz Parties agreed to dismiss, with prejudice, their appeal of the Class Action Litigation settlement approved by the Delaware Chancery Court on July 26, 2013, as previously reported by the Company on Form 8-K. Upon the filing of a stipulation to dismiss the class action appeal, the Company will resume activity to execute the terms of the Settlement. In connection with the dismissal of this appeal, the Company entered into a settlement agreement and release with David Kurtz and certain related shareholders for the purpose of resolving certain litigation filed in the Superior Court of Arizona, Maricopa County against the Company and certain affiliated individuals and entities. As consideration for the settlement and in exchange for a full release and satisfaction of all associated claims and charges by the Kurtz Parties, and with no admission of any liability, the Company made a cash payment and acquired 41,659 shares of the Company's stock. The Company expects a portion of the settlement to be allocated to the acquisition of stock and a portion to be charged to litigation settlement expense. Pending Company submission to and approval of final documents by the Company's insurance carriers, the Company anticipates that a portion of the litigation settlement charge will be reimbursed. INTEVATION FOOD: Recalls Chicken Fettuccine Alfredo Products ------------------------------------------------------------ Intevation Food Group, LLC, a Plover, Wis., establishment, is recalling approximately 156,924 pounds of frozen chicken fettuccine alfredo products because of misbranding and an undeclared allergen, the U.S. Department of Agriculture's Food Safety and Inspection Service (FSIS) announced. The products contain egg, a known allergen, which is not declared on the product label. The products subject to recall include: -- 18-oz. trays of "OMAHA STEAKS, 2367 Chicken Fettuccine Alfredo," bearing the establishment number "P-39949" inside the USDA mark of inspection. The products were packaged and produced on various dates from May 11, 2012, through October 8, 2013, and were shipped to distributors in Nebraska for further distribution through retail and internet/catalog sales. The products may also be identified by the case codes 9502367 or 9802367. The problem was discovered by the company during an internal label review. FSIS and the company have received no reports of adverse reactions due to consumption of these products. Anyone concerned about a reaction should contact a healthcare provider. FSIS routinely conducts recall effectiveness checks to verify recalling firms notify their customers of the recall and that steps are taken to make certain that the product is no longer available to consumers. When available, the retail distribution list(s) will be posted on the FSIS website at http://is.gd/CRPD8o Consumers and media with questions about the recall should contact the Customer Care Hotline at (877) 789-7117. Consumers with food safety questions can "Ask Karen," the FSIS virtual representative available 24 hours a day at AskKaren.gov or via smartphone at m.askkaren.gov. "Ask Karen" live chat services are available Monday through Friday from 10 a.m. to 4 p.m. ET. The toll-free USDA Meat and Poultry Hotline 1-888-MPHotline (1-888-674-6854) is available in English and Spanish and can be reached from l0 a.m. to 4 p.m. (Eastern Time) Monday through Friday. Recorded food safety messages are available 24 hours a day. JAYONE FOODS: Recalls Trader Joe's Dried Seaweed Salad ------------------------------------------------------ Jayone Foods, inc. of Paramount, CA is voluntarily recalling All date codes of Trader Joe's Dried Seaweed Salad with Spicy Dressing (SKU 97677), because it may contain traces of peanuts. People who have an allergy or severe sensitivity to peanuts run the risk of serious or life-threatening allergic reaction if they consume this product. The dried seaweed salad packaged in a 3.5 oz. foil pouch, found in the grocery aisle at Trader Joe's was sold nationwide. The voluntary recall was issued by Jayone Foods after a customer inquiry prompted an investigation. Customers who have purchased the Dried Seaweed Salad with Spicy Dressing and have sensitivity to peanuts are urged to return it to Trader Joe's for a full refund or dispose of it. Customers with questions may contact Jayone Food, Inc., 8:00a.m.-5:00p.m. PST, Monday-Friday at (562) 232-2754. JEAN MADELINE: Accused of Paying Students Less Than Minimum Wage ---------------------------------------------------------------- Courthouse News Service reports that The Jean Madeline Education Center of Cosmetology dba The Jean Madeline Aveda Institute paid students less than minimum wage to work at its profit-seeking beauty salons, a class action claims in Pennsylvania Federal Court. JOHNSON & JOHNSON: Hundreds of Women Join Mesh Class Action ----------------------------------------------------------- Stephanie Smail, writing for ABC News, reports that hundreds of women have joined a class action against medical giant Johnson and Johnson over a range of products designed to support weak pelvic floor muscles. The women say they have suffered devastating side-effects from the products, including erosion of the surrounding tissues and organs, incontinence, infection, and chronic pain. The class action follows several against the medical giant over the last three years, all relating to Johnson and Johnson's joint replacement systems. While some of the pelvic-floor products used on the women have been discontinued, others are still available. One claimant, Andrea, had some Johnson and Johnson tape implanted to treat stress urinary incontinence. "They said, 'we've got this TVT (Tension-Free Vaginal Tape) tape, and what we do is we insert it through the groin or the top of the pubic area, and it actually creates a cradle for the urethra, which means that the stress incontinence will actually stop. What do you think?' So I signed up and said, 'yes, oh great, that sounds great'," she said. In the months after the tape was inserted it rubbed two separate holes in the wall of her vagina, and she has been forced to have two operations to try and stop the painful side effects. Andrea is part of the class action against the medical giant Johnson and Johnson that manufacturers and distributes the tape. Rebecca Jankauskus, from Shine Lawyers, says more than 460 Australian women are part of the action that is currently before the Federal Court. She says it covers two products: the tape implants and pelvic or prolapse mesh. "Tape implants are generally used to treat stress urinary incontinence, and the mesh implants are generally used to treat prolapse," she said. "However, both of these symptomatologies occur due to weakening of or damage to the pelvic floor muscles." Products still on the market Ms. Jankauskus says the side effects for the two products are very similar. "Erosion of the mesh or tape through surrounding tissues and organs, incontinence, infection, and chronic pain. In some cases surgical removal of the mesh or tape product is necessary," she said. In June last year, Johnson and Johnson pulled its pelvic mesh products off the market, but a spokeswoman for the company has confirmed four of the tape products are still available in Australia. Ms. Jankauskus says all the tape products should be pulled. "We allege that those products are defective and are not suitable for the purpose they're sold for. It is of concern that we have been contacted by Australian women who are about to receive a Johnson and Johnson tape product, and that these implants are continuing to be used on our market today," she said. Johnson and Johnson is facing a barrage of legal proceedings over its pelvic mesh, and the numbers keep growing. They have doubled in the United States in three months, and Johnson and Johnson's November report shows more than 23,000 pelvic mesh lawsuits, compared to just over 12,000 in August. Ms. Jankauskus says the figures are not surprising, and labelled the problems a "medical disaster". "Tens of thousands of women around the world who have used these implants, and as the growing body of scientific and medical literature shows, these products are defective and are causing an unacceptable level of complications in their recipients," she said. Andrea is angry that despite the class actions the products are still available in Australia. "It shouldn't have been put into people if there's such a high range of complications. And just disgusted that it's out there because there's so many people affected," she said. "When you're told by a surgeon that you're a one in a million or a very small 1 per cent of the population that you've had a problem with, obviously that's not true. We've been lied to." It is not the first legal trouble for Johnson and Johnson in Australia. In 2011 a class action was launched over its DePuy hip replacement device, which left hundreds of patients poisoned and seriously disabled, and in 2010 it faced similar legal proceedings over its knee replacement products. Andrea is hoping her class action will raise awareness about the potential side effects from the tape products. "People with stress incontinence seem to be those that are in their 50s, 60s, 70s, where they go 'I've had enough, looks like I can get something done about. Let's go do something about it'," she said. "And then because they are that age and that generation where we don't talk about those things, they don't come forward to say 'I'm still suffering.' Johnson and Johnson was not available for an interview, but in a statement the company says implantable mesh is considered by many to be the most appropriate treatment for stress urinary incontinence. It says the tape products have demonstrated proven results, and are supported by 15 years of clinical studies. The statement says Johnson and Johnson are always concerned when a patient experiences adverse medical conditions, but all pelvic surgeries present risks of complications and patients should discuss concerns with their physicians. JOHNSON & JOHNSON: Offers Hip Replacement Settlement Program ------------------------------------------------------------ Dallas Hartman, Esq. at Dallas W. Hartman P.C. reports that just a year ago, in November 2012, officials reported preliminary details of settlements agreed upon for defective DePuy hip replacements. DePuy's mother company, Johnson & Johnson, all but admitted to negligent manufacturing of two of its hip replacement devices: the DePuy ASR Hip Resurfacing System and the DePuy ASR XL Acetabular System. Specific details of the 2012 settlement included Johnson & Johnson's goal to resolve approximately 7500 claims, paying nearly $300,000 for each revision surgery that was necessary to replace the defective hip replacement systems. In addition, however, officials said Johnson & Johnson would not be free from future claims against them for lost wages, medical expense, and pain and suffering. Then on November 19, courts that are overseeing state and federal joint proceedings approved a defrayal program that significantly differs from the initial terms. Among some of those differences are statute of limitation dates and the amount to be paid out to the injured. Because of these new strict guidelines set forth, many victims of the malfunctioning hip replacement devices are seeking individual counsel for either a greater settlement deal or a chance to be represented in court and have their compensation rate far exceed the $250,000 being offered. The stipulations for the Johnson & Johnson settlement program are as follows: The settlement program will not bar future lawsuits alleging either of the two hip replacement devices were defective. The settlement does not initially appear to make any provisions for DePuy ASR and ASR XL Acetabular patients who have not needed revision surgery, but who may have suffered or are suffering. Nor are there provisions for those who had revision surgery before September 1, 2013. Qualified patients who had revision surgery will be eligible for a maximum compensation amount of $250,000. This may increase in extreme circumstances such as wrongful death, and it can also decrease for some patients depending on different dynamics. According to the court, there will be unnamed "practiced experts" determining recompense amounts. Victims who agree to take part in the settlement program do will have the option to appeal a decision if they feel they are being unfairly treated. However, anyone who participates in the program automatically waives their rights to private litigation. At least 94% of all DePuy hip replacement device victims who have made claims must enroll in the settlement program April 1, 2014 for Johnson & Johnson to be required to fund the program. At this point, many people who are eligible for a hip replacement lawsuit or settlement have much to think about. Reports have said that some are content with the settlement payment, but most medical experts agree that $250,000 is a serious underestimation of what these victims should be receiving considering their injuries, pain, and suffering. L'OREAL USA: Court Declines Final OK of "Richardson" Suit Accord ---------------------------------------------------------------- District Judge John D. Bates denied final certification of the class and final approval of the settlement in ALEXIS RICHARDSON, et al., Plaintiffs, v. L'OREAL USA, INC., Defendant, CIVIL ACTION NO. 13-508 (JDB), (D.D.C.). Judge Bates said the arguments raised by plaintiffs to show that the settlement is fair are unconvincing, particularly when weighed against the indications of unfairness raised by the objectors. Accordingly, the settlement is not fair, reasonable, and adequate, ruled the Court. The Plaintiffs' motion for attorney's fees was denied as moot. A copy of the District Court's November 6, 2013 Memorandum Opinion is available at http://is.gd/Cx2B6tfrom Leagle.com. LAZZARI FUEL: Accused of Fixing Prices of Mesquite Charcoal ----------------------------------------------------------- Three California-based mesquite charcoal companies conspired to fix prices and allocate markets for 10 years, to "keep each other's back," restaurants claim in a federal class action, according to Megan Gallegos at Courthouse News Service. Lead plaintiff Il Fornaio (America) Corp. sued Lazzari Fuel Co., of Brisbane, Calif.; California Charcoal and Firewood, of Commerce; and Chef's Choice Mesquite Charcoal, of Carpinteria. Il Fornaio runs 14 restaurants, 11 of them in California. Joining it at plaintiffs are Oliveto Partners, which owns and operate Oliveto Cafe in Oakland, and The Famous Enterprise Fish Company of Santa Monica. They claim the defendants fixed the price of lump mesquite charcoal, which is prized for its intense heat and the flavor imparted by its smoke. The restaurants claim that from at least 2000 through 2010, "defendants conspired, combined for, or agreed (a) to fix, raise or stabilize the price of mesquite lump charcoal in the United States (b) to not compete for each other's customers (c) to allocate specific customers or territories among themselves; (d) to sell only to customers in certain geographic areas (e) to refrain from submitting bids for the sale of mesquite lump charcoal to customers allocated to a co-conspirator company; and/or (f) to communicate with each other regarding what price to bid for the sale of mesquite lump charcoal and then submit agreed- upon, noncompetitive bids to each other's customers." The restaurants claim the defendants' executives called each other to discuss which conspirators would get which customers, and how the conspirators would ask if a company from a different territory called them. Most of the proof comes from federal prosecutor's tape recordings of conversations between Chef's Choice's owner William Lord and a confidential informant, according to the complaint. It states: "Lord expanded upon the operation of the conspiracy in the same phone call with the confidential informant recorded by federal prosecutors: "'I called [Individual B] before, or [Individual C] before, or [Individual A] and, uh, we all have kinda just left things alone throughout the years. Um, I know where his customers are, he knows where mine are, but for some reason, just a phone call or what should we, what should I quote so that it will, you know, make you look okay. Like that. That's pretty much been the conversation through the years. Because, ahh, all of us have raised our prices before and what happens is the com-, the company calls and says can they get it at a better price. And so we've always, uh, kept each other's backs in a sense.' "On information and belief, and based on the investigation of counsel, plaintiffs allege the person identified by Lord as '[Individual B]' is Robert Colbert, vice president and co-owner of Lazzari; the person identified as '[Individual C]' is Richard Morgen, Lazzari's general manager and co-owner; and the person identified as '[Individual A]' is Marvin Ring, CEO of California Charcoal." (Brackets in complaint.) Lord pleaded guilty to criminal antitrust charges, paid a $100,000 fine and served a four-month prison term for his company's role in the conspiracy, according to the complaint. The restaurants seek class certification, an injunction and damages for violations of the Sherman Antitrust Act. The Plaintiffs are represented by: Elizabeth Pritzker, Esq. PRITZKER LAW 633 Battery Street, Suite 110 San Francisco, CA 94111 Telephone: (415) 692-0772 Facsimile: (415) 366-6110 E-mail: ecp@pritzker-law.com The case is IL Fornaio (America) Corp., et al. v. Lazzari Fuel Company, LLC, et al., Case No. 3:2013-cv-05197, in the U.S. District Court for the Northern District of California. MARINA'S GERMAN: Recalls Two-Count Packages of Pastry Products -------------------------------------------------------------- Marina's German Bakery of El Paso, Texas is recalling two-count packages of pastry products, because they may contain undeclared Almonds, Walnuts, or Hazelnuts. People who have an allergy or severe sensitivity to Almonds, Walnuts, or Hazelnuts run the risk of serious or life threatening allergic reaction if they consume these products. The two count packages of Assorted Pastries were distributed in El Paso, Texas at Fort Bliss Commissary and in Alamogordo, New Mexico at Holloman AFB Commissary. The product comes in an assorted two count, clear plastic package, labeled MARINA'S GERMAN BAKERY ASSORTED PASTRIES, marked with the UPC number 01080100301, and a sale by date prior to 11/23/13. No illnesses have been reported to date in connection with these products. The recall was initiated after it was discovered during an FDA inspection that the nut containing products were distributed in two count packaging that did not reveal the presence of Almonds, Walnuts, or Hazelnuts. Subsequent investigation indicates the problem was not known to the distributor. The distribution of these products has been suspended until proper labeling is obtained. Consumers who have purchased these products are urged to return the package(s) to the place of purchase for a full refund. Consumers with questions may contact the company at 915-591-3737 Monday through Friday from 7 AM to 6 PM MST. MINDSPEED TECHNOLOGIES: Being Sold for Too Little, Suit Claims -------------------------------------------------------------- Shareholders claim in the California Superior Court for San Diego County that directors of Mindspeed Technologies, Inc. are selling the Company too cheaply to M/A-COM Technology Solutions Holdings, Inc. On November 5, 2013, M/A-COM announced that it has entered into a definitive agreement to acquire Mindspeed. Following M/A-COM's statement, several law firms announced that they are investigating proposed acquisition. Among the law firms are: Juan E. Monteverde, Esq. FARUQI & FARUQI, LLP 369 Lexington Avenue, 10th Floor New York, NY 10017 Telephone: (212) 983-9330 Toll Free: (877) 247-4292 E-mail: jmonteverde@faruqilaw.com - and - Darnell R. Donahue, Esq. ROBBINS ARROYO LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 Toll free: (800) 350-6003 Facsimile: (619) 525-3991 E-mail: ddonahue@robbinsarroyo.com - and - Jim Baker, Esq. JOHNSON & WEAVER, LLP 110 West "A" Street, Suite 750 San Diego, CA 92101 Telephone: (619) 230-0063 Facsimile: (619) 255-1856 E-mail: jimb@johnsonandweaver.com MOLEX INCORPORATED: Faces Securities Suit Over Koch Merger ---------------------------------------------------------- Molex Incorporated faces a consolidated shareholder lawsuit in relation to its merger transaction with Koch Industries, Inc., according to the company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In September 2013, four class action complaints were filed purportedly on behalf of holders of Molex common stock, with certain exclusions, and named as defendants Molex, each member of Molex's Board of Directors (the "Individual Defendants"), Koch Industries, Inc. ("Parent") and Koch Connectors, Inc. ("Merger Sub"). Three class action complaints were filed in Illinois and the fourth in Delaware. On September 10, 2013, a putative shareholder class action complaint was filed in the Chancery Division of the Circuit Court of DuPage County in the State of Illinois, captioned Carolyn Williams v. Molex Incorporated, et. al., Case No. 2013CH002616. On September 11, 2013, a putative shareholder class action complaint was filed in the Eighteenth Judicial District of the Circuit Court of DuPage County in the State of Illinois, captioned Spoleto Corp. v. Molex Incorporated, et. al., Case No. 2013CH002625. On September 27, 2013, a putative shareholder class action complaint was filed in the Eighteenth Judicial District of the Circuit Court of DuPage County in the State of Illinois, captioned Donald C. Croson v. Molex Incorporated, et. al., Case No. 2013CH002766. These complaints generally allege that the Individual Defendants breached their fiduciary duties by agreeing to a transaction at an inadequate price, by conducting an inadequate sale process and by agreeing to unreasonable deal protection provisions. The complaints also allege that Parent and Merger Sub aided and abetted these purported breaches of fiduciary duties. In addition, the Croson complaint further alleges that the preliminary proxy statement filed by Molex in accordance with the Merger Agreement entered into with Parent and Merger Sub (the "Preliminary Proxy Statement") contains a variety of inaccurate, misleading or incomplete disclosures about, among other things, the sale process, the financial analysis of the transaction and certain financial projections. The relief sought by the complaints includes, among other things, an injunction prohibiting the completion of the merger contemplated by the Merger Agreement, rescission (to the extent the merger has been completed) and the payment of plaintiffs' attorneys' and experts' fees and costs. Plaintiffs have consolidated the three cases. Molex believes that the complaints are without merit and intends to vigorously defend the actions. MOLEX INC: Faces Shareholder Suit by George Leon Family Trust ------------------------------------------------------------- A putative shareholder class action complaint was filed on September 30, 2013, in the Court of Chancery of the State of Delaware, captioned George Leon Family Trust v. Molex Incorporated, et al., Civil Action No. 8961-VCL, according to Molex's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. The complaint generally alleges that the Individual Defendants breached their fiduciary duties by conducting an allegedly flawed sale process and agreeing to allegedly improper deal protections. In addition, the complaint alleges that the Preliminary Proxy Statement fails to adequately disclose material information about certain events leading up to the merger and about the financial analyses of the merger set forth in the Preliminary Proxy Statement. The complaint further alleges that Molex, Parent and Merger Sub aided and abetted these purported breaches of fiduciary duties. The relief sought includes, among other things, an injunction prohibiting the completion of the merger, an accounting of putative damages and the payment of plaintiff's attorneys' and experts' fees and costs. Molex believes that the complaint is without merit and intends to vigorously defend the action. NATIONAL COLLEGIATE: Football, Basketball Players Class Certified ----------------------------------------------------------------- Nick McCann at Courthouse News Service reports that a group of Division I NCAA football and basketball players whose likenesses were used in video games and game footage can sue the NCAA as a class, a federal judge ruled. Since 2009, a group of former NCAA athletes have been embroiled in a legal battle over the use of their images in video games, merchandise and other promotional materials. In the first complaint , former UCLA basketball player Ed O'Bannon said the NCAA violated his and other athletes' right to make money off their likenesses. U.S. District Judge Claudia Wilken refused to dismiss the athletes' third amended consolidated class complaint last month. "Although the First Amendment -- unlike the California Civil Code -- does impose certain limits on the right of publicity in every state, the NCAA has not shown that those limits preclude plaintiffs from asserting publicity rights in the specific types of broadcasts at issue here," the 24-page opinion states. Wilken added that "neither the Supreme Court nor the federal courts of appeals have ever squarely addressed whether the First Amendment bars athletes from asserting a right of publicity in the use of their names, images, or likenesses during sports broadcasts." A month earlier, the NCAA's alleged co-conspirators, Electronic Arts and Collegiate Licensing Corp. settled with the athletes. With their claims still pending against the NCAA, the athletes sought to certify two classes: a right-of-publicity class and an antitrust class. While the latter class claims that the company conspired with Electronic Arts and College Licensing Corp. to restrain competition for the use of their names, images and likenesses, the former alleges violation of the athletes' common-law rights of publicity. Only four athletes are part of the right-of-publicity class, while the remaining 21 belong to the antitrust class. The athletes sought to certify a class for injunctive relief, and a subclass to pursue monetary damages. The injunctive relief class demands a court order ending the prohibition on athletes entering into licensing deals for the use of their names and likenesses in video games and broadcasts. Wilken found Friday, November 8, 2013, that the injunctive relief class can proceed, but the damages subclass did not satisfy the needed requirements for a class action. "Their request for this injunction is not merely ancillary to their demand for damages," she wrote. "Rather, it is deemed necessary to eliminate the restraints that the NCAA has allegedly imposed on competition in the relevant markets. Without the requested injunctive relief, all class members - including both current and former student-athletes - would potentially be subject to ongoing antitrust harms resulting from the continued unauthorized use of their names, images, and likenesses." Wilken was not convinced, however, that the athletes had shown a realistic way to determine how the damages subclass was harmed by the NCAA's actions. "Plaintiffs have not provided a feasible method for determining which members of the damages subclass would still have played for Division I teams -- and thus, suffered the injuries alleged here -- in the absence of the challenged restraints," she wrote. "This shortcoming likewise contributes to the impossibility of determining which class members were actually injured by the NCAA's alleged restraints on competition and, as such, precludes certification." The athletes also did not present "a workable system" showing how they could determine which athletes actually played in televised games or which games were broadcast, the judge found. "Without a means of accomplishing these tasks on a class-wide basis, plaintiffs would have to cross-check thousands of team rosters against thousands of game summaries and compare dozens of game schedules to dozens of broadcast licenses simply to determine who belongs in the damages subclass," Wilken wrote. The class that can proceed in the action is defined as current and former Division I football and basketball players "whose images, likenesses and/or names may be, or have been, included in game footage or in videogames licensed or sold by defendants, their co- conspirators, or their licensees" after the athletes' NCAA career ended. Wilken ordered the plaintiffs to submit a 25-page brief within one week of the order, and for the NCAA to submit a reply brief by Feb. 3, 2014. A case-management conference is scheduled in Wilken's courtroom on Feb. 20, 2014. The case is In Re NCAA Student-Athlete Name & Likeness Licensing Litigation, Case No. 4:09-cv-01967-CW, in the U.S. District Court for the Northern District of California. NEW ZEALAND: Canterbury Homeowners Meet to Discuss Settlement ------------------------------------------------------------- Charles Anderson, writing for Stuff.co.nz, reports that a class action lawsuit against the Earthquake Commission has taken a step forward after a public meeting to gauge interest in the case drew more than 200 disgruntled Canterbury homeowners. Law firm Anthony Harper plans to launch a group action to hold EQC to its obligations under the Earthquake Commission Act. The Nov. 25 meeting, headed by lawyer Simon Munro, drew about 250 property owners concerned about the amount of money EQC was offering as cash settlements or unhappy about the work it was planning to do on their homes. The meeting was closed to media, but those spoken to after expressed frustration at EQC's substandard work. "A lawsuit is the only way we are going to get a repair that is fair," said Southshore resident Paul Manhire, whose home EQC had recommended for a "jack and pack" of its foundations. "My message is leave my crack alone." The proposed action aimed to get a declaratory judgment from the High Court confirming the standard of repair EQC was required to meet. The judgment would affect both repairs made by Fletcher on EQC's behalf as well as the amount EQC paid if it elected to settle claims in cash. Mr. Munro said under the Earthquake Commission Act, EQC was obliged to replace or reinstate a building to the same condition it was when it was new, subject to any applicable laws. If building materials or methods had evolved, or specific products were no longer available, the act said EQC was only bound to replace or reinstate as circumstances allowed and in a "reasonably sufficient manner". Mr. Munro said the purpose of the meeting was to provide homeowners interested in taking on EQC with the information they needed to join the action. St Albans resident Craig Edwards said the failure of EQC to adequately repair homes was a "scandal" comparable to the leaky homes crisis. "It's going to be a massive issue for decades to come . . . this is the first step that EQC will be held to account." Mr. Munro said that the level of interest in the proposed action meant Anthony Harper was able to cap each homeowner's cash contribution to the costs of the action at a maximum of $2000. "We hope that for most people, considering their home is at stake, the payments will be manageable at that level," he said. All work to date had been pro bono. Everyone who joins the action is asked to make a contribution of $1000 towards the costs. Mr. Munro estimated that a group of at least 120 was necessary to get the action off the ground. He said the case would establish whether EQC's approach was wrong. While there would be no awards from the court the incentive was keeping equity in homeowner's properties. Others could still join. "It's now over to all the people who have expressed an interest . . . they need to then make a decision to formally commit to joining." NOVARTIS PHARMA: Zometa Plaintiffs Can Seek Punitive Damages ------------------------------------------------------------ Saranac Hale, writing for The Legal Intelligencer, reports that punitive damages are fair game for plaintiffs bringing claims against Novartis Pharmaceuticals for a drug made to manage metastatic bone cancer that they claim caused permanent disfigurement, a federal judge has ruled. U.S. District Judge Mark R. Hornak of the Western District of Pennsylvania applied choice of law analyses from two other jurisdictions to determine that Pennsylvania law would apply to the issue of punitive damages rather than New Jersey law. Pennsylvania law would allow for the plaintiffs to seek punitives while New Jersey law wouldn't. "New Jersey caps punitive damages at the greater of $350,000 or five times the compensatory damages award," Judge Hornak said. "In addition, under the New Jersey Products Liability Act, punitive damages are not available if a product was approved by the [Food and Drug Administration]. . . . Pennsylvania has no such limitations on the recovery of punitive damages," he said. Because the two cases Judge Hornak ruled on were transferred to his court by the panel on multidistrict litigation for consolidated pretrial proceedings, he had to apply the choice-of- law analysis from the state in which each case was filed. One was filed in the District of Columbia and the other was filed in New York. The plaintiffs, who were either prescribed the Novartis drug called Zometa or married to someone who was given the drug, all live in Pennsylvania. They allege that Zometa, which has been approved by the Food and Drug Administration, caused the development of osteonecrosis of the jaw. Judge Hornak described the affliction, called ONJ for short, as "a permanently disfiguring and painful condition that may result in complete loss of the jaw bone." Novartis is a Swiss pharmaceutical company with its American operations incorporated in Delaware, but its primary place of business in New Jersey, according to the opinion. Novartis Pharmaceuticals Corp., called NPC for short, argued that the judge "should apply New Jersey law to the plaintiffs' punitive damages claims because NPC maintains its principal place of business in New Jersey, and the conduct that it maintains is most relevant to the punitive damages claims -- NPC's corporate decisions regarding Zometa labeling, clinical trials, adverse event reporting, and marketing -- occurred in New Jersey," Judge Hornak said. However, the "plaintiffs contend that because they are Pennsylvania residents, were prescribed Zometa and treated in Pennsylvania by Pennsylvania doctors, purchased Zometa in Pennsylvania, were infused with Zometa in Pennsylvania, and suffered the effects of ONJ here, allegedly as a result of taking Zometa, Pennsylvania law should also apply to their claims for punitive damages," he said. The plaintiffs also noted that Novartis is a Swiss company and many of the decisions it made about the labeling of its drug were made in Switzerland, not New Jersey. The District of Columbia and New York have different tests for determining what law to apply in a given case, but Judge Hornak's application of each test pointed to Pennsylvania law. Both tests start with the threshold question of establishing that there is a genuine conflict between the competing states' laws. That standard was quickly met for each test. The District of Columbia then looks to the Restatement (Second) of Conflict of Laws and New York considers the significance of each states' contacts with the case, "almost exclusively, the parties' domiciles and the locus of the tort," Judge Hornak said. The great weight of the points in the District of Columbia's test tip toward Pennsylvania law, Judge Hornak found. "Although the court respects New Jersey's interest in punishing and deterring the conduct of corporations domiciled there on its own terms, the conduct far more relevant to the issue of punitive damages here occurred in Pennsylvania," Judge Hornak said. Similarly, he found that Pennsylvania law would apply under New York's choice-of-law analysis, which considers the place where the "last event necessary" to make the defendant liable occurred. "The last event necessary to make NPC liable plainly occurred in Pennsylvania," Judge Hornak said. "While NPC may have made corporate decisions regarding Zometa in New Jersey, its liability to these plaintiffs would not be in dispute had it not marketed Zometa to them and their doctors in Pennsylvania, sold Zometa to them in Pennsylvania, and allegedly failed to warn them in Pennsylvania of Zometa's possible connection to ONJ. Therefore, under New York's interests analysis, Pennsylvania is the place where the tort occurred." OFFICEMAX: Class Action Settlement Gets Preliminary Court Approval ------------------------------------------------------------------ Judy Selby, Esq., at Baker Hostetler -- jselby@bakerlaw.com -- reports that on November 5, 2013, a California federal district court preliminarily approved a revised coupon-based class action settlement agreement between plaintiffs and OfficeMax. In September, the court rejected a prior proposed settlement between the plaintiffs, who had accused OfficeMax of illegally recording customer zip codes, and OfficeMax on the ground that the agreement violated the Class Action Fairness Act (CAFA) because the calculation was based on the issuance of merchandise vouchers that might never be redeemed. The revised agreement, still based on a voucher payout, reserves a final decision on attorney fees until the vouchers actually have been redeemed. A final approval hearing is scheduled for March 2014. OHIO: Accused of Shortchanging Workers Comp Recipients ------------------------------------------------------ Courthouse News Service reports that Ohio shortchanged workers comp recipients by miscalculating the statewide average weekly wage in 2008 and 2010, a class action claims in Cuyahoga County Court. PHYSIQUE ENHANCING: Recalls Enhanced & Alphamine Products --------------------------------------------------------- Alison Young, writing for USA Today, reports that Physique Enhancing Science, also called PES, launched a recall of certain lots of Enhanced, a pre-workout supplement, and Alphamine, which is sold as a fat burner. Both products contain aegeline, an ingredient flagged by the U.S. Food and Drug Administration during its investigation of an outbreak of dozens of liver injuries linked to a weight-loss supplement made by a different company: USPlabs' OxyElite Pro. Health officials have said it's not clear whether aegeline or something else in OxyElite Pro is the culprit. USPlabs launched a product recall this month. PES officials have not responded to USA TODAY's repeated requests for interviews since Nov. 14 about the company's use of aegeline in its products. PES' website said Enhanced was "currently under reformulation" with a new formula expected in January. After the newspaper's calls, the Enhanced webpage was changed to say: "This product has been discontinued." In the recall notice posted on the PES website, the company said it is requesting customers return certain lots of Enhanced distributed between Feb. 4 and Nov. 5, and certain lots of Alphamine distributed between Sept. 9 and Nov. 12. Details are on the company's website: pescience.com/recall "PES has received no serious adverse events from either of these products, but out of an abundance of caution we are requesting their return," the notice says. The company says the recall is happening because the products contain aegeline, "an unapproved New Dietary Ingredient according to the FDA." It is unclear whether the FDA played a role in the PES recall, given no notice of it has appeared on the agency's website. FDA officials were not immediately available for comment. The PES recall notice is dated Nov. 19 but wasn't posted on the firm's website until sometime late Nov. 20. The products are sold through a variety of online retailers. "GNC has received and issued the recall of the Alphamine and Enhanced products per the vendor's instructions. Any further questions concerning these products or their recall should be addressed to the vendor," GNC spokeswoman Laura Brophy said in an e-mail after USA TODAY inquired about the recall on Nov. 20. The FDA sent a warning letter last month to USPlabs notifying the Dallas-based company that it deemed OxyElite Pro and another supplement, VERSA-1, to be adulterated because they included aegeline as an ingredient. The FDA said it considers aegeline, a compound found in an Asian tree, to be a new dietary ingredient that lacks a history of use or other evidence of safety in the United States prior to 1994, a key regulatory date. USPlabs has said that aegeline has been consumed safely for centuries. Still, the company told the FDA in a Nov. 4 letter that it was discontinuing use of the ingredient in the United States because of the negative publicity and that it had destroyed its distribution center inventory of supplements containing it. To report adverse events involving dietary supplements, call the FDA at: 800-332-1088. PILOT FLYING J: Class Action Settlement Gets Final Approval ----------------------------------------------------------- Convenience Store News reports that at a hearing conducted on Nov. 25, U.S. District Judge James Moody granted final approval to the class-action settlement between Pilot Flying J and the trucking companies suing the retailer over discrepancies in its fuel rebate program. The Knoxville, Tenn.-based company's attorney Aubrey Harwell praised the settlement's "fundamental fairness" and called it a "shining example of how the system should work." Don Barrett, the plaintiffs' attorney, said it was a "spectacular result for the class" and commended Pilot Flying J for doing everything it agreed to do "well and honorably," according to Pilot Flying J. The U.S. District Court for the Eastern District of Arkansas had previously granted preliminary approval to the settlement. The hearing on Nov. 25 included a review of what had transpired since then, including the implementation of those steps required by the court under its earlier orders, according to the retailer. The law states that the court should approve a class-action settlement only if the settlement is found to be fair, reasonable and adequate. By granting final approval at the Nov. 25 hearing, the court found that the settlement met this standard, the company explained. This issue dates back to the April 15 federal raid on Pilot Flying J's headquarters over fraud allegations in its fuel rebate program. In July, the company reached a proposed settlement to resolve the more than 20 lawsuits filed against it since April, as CSNews Online previously reported. Earlier in November, Pilot Flying J estimated that it would repay more than $55 million to trucking companies involved in the lawsuit, with its total settlement costs reaching approximately $72 million. According to the company, the specific terms of the settlement include: * The settlement guarantees payment to class members of every penny of unpaid discounts they are owed, plus 6-percent interest. * The payments are to be mailed to each recipient within 30 days after the amount owed is finally calculated, or 30 days after the court's final approval of the settlement (whichever is later). * Notice will also be mailed to those class members who are not owed anything, and if they disagree for any reason, there are mechanisms in place for them to seek further review. * A court-approved independent accounting firm (Horne LLP) has been retained to review the procedures and protocols that Pilot Flying J's internal audit department used to calculate settlement payments, and to conduct a statistical sampling of accounts to verify the accuracy of the internal audit's conclusions. The independent accounting firm has already been conducting its review for some time. * Class members can also ask Horne to review their particular accounts. * If dissatisfied with Horne's findings, class members can hire their own accountants to audit their accounts, and then ask the court to rule on any disputed amounts. * The settlement includes a permanent injunction prohibiting Pilot Flying J from ever improperly withholding rebates or discounts in the future. * Under the settlement, Pilot Flying J will pay: (1) 100 percent of unpaid discounts the class members are owed, plus 6- percent interest; (2) the cost of providing notice of the settlement; (3) the fees and expenses of the class administrator; (4) the cost of the internal audit; (5) the fees and expenses of the independent accountant; (6) the plaintiffs' attorneys' fees and expenses as approved by the court; and (7) "incentive awards" of $10,000 to the 10 class representatives (i.e., the named plaintiffs). Trucking companies had until Oct. 15 to file written objections; however, none were filed before or after the deadline. According to Pilot Flying J, prior to the Nov. 25 hearing, it had already sent checks to customers who were found to be owed money during the internal audit, including 4-percent interest. An additional 2-percent interest will be paid, to bring the total interest to 6 percent as provided in the settlement. "The settlement is fair in light of the substantial risk and burden on the plaintiffs had they been forced to litigate the case," the company said. "The negotiated settlement provides compensation to the class members promptly, and with the oversight of the independent accountant and the court." As of Nov. 22, there were only 146 "opt-outs" of the class consisting of approximately 5,500 members. Treating affiliated companies as a single entity reduces the effective number of opt- outs to 60, the company noted. Family-owned Pilot Flying J has 650 locations across the United States and Canada. POLICE UNION: Violates False Advertising Laws, Suit Says -------------------------------------------------------- Kaleb Patterson, on behalf of himself and all others similarly situated v. International Union of Police Associations, AFL-CIO, a Florida trade union; and Does 1-10, inclusive, Case No. 3:13-cv- 02698-JAH-JMA (S.D. Cal., November 8, 2013) alleges violations of California's False Advertising Laws and Unfair Competition Laws. IUPA claims to use the charitable donations collected from the public, which are not tax deductible, to protect the interests of public safety officers through a variety of means including legislation reform aimed at protecting the law enforcement teams, support, equipment, and direct relief; however, a mere fraction of the donations received from concerned donors all over the country actually reaches the people for which IUPA supposedly operates, Mr. Patterson alleges. IUPA is an IRS tax-exempt Florida trade union and member of the AFL-CIO. IUPA's mission statement states: "The International Union of Police Associations is the only AFL-CIO union chartered exclusively for law enforcement and law enforcement support personnel. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiff. The Plaintiff is represented by: Scott J. Ferrell, Esq. Richard H. Hikida, Esq. Victoria C. Knowles, Esq. NEWPORT TRIAL GROUP 4100 Newport Place Drive, Suite 800 Newport Beach, CA 92660 Telephone: (949)706-6464 Facsimile: (949)706-6469 E-mail: sferrell@trialnewport.com rhikida@trialnewport.com vknowles@trialnewport.com PRUDENTIAL INSURANCE: Sued Over Delayed Death Benefits' Interest ---------------------------------------------------------------- Matt Reynolds at Courthouse News Service reports that Prudential Insurance applies an "arbitrary and unreasonably low interest rate" to delayed death benefits it pays to life insurance beneficiaries, a class action claims in California Superior Court. Lead plaintiff Beverly Burton lost her son to cancer 32 years ago. She was the beneficiary on a Prudential police her husband took out on their late son, Roderick, in 1958. Though Roderick died of cancer in 1981, Burton says it took Prudential 32 years to confirm the death benefits, which it did in May this year. Two months later, Prudential sent her check for $5,040.11. It told her in a letter that the money was for the $1,000 death benefit, plus interest. Burton claims Prudential did not explain how it calculated its annual interest rate of 2.5 percent. When she sought clarification, she says, she received a "vague and grammatically ambiguous" reply. "'Please note that California law requires payment of interest from the date of death at a rate not less than the current rate of interest,'" Prudential wrote her, according to the lawsuit. But Prudential cheated, taking advantage of today's low interest rates to alter the language and meaning of the law, Burton claims: "The 'California law' that Prudential referred to is presumably Insurance Code section 10172.5, which requires insurers to pay interest 'at a rate not less than the then current rate of interest on death proceeds left on deposit with the insurer computed from the date of the insured's death.' "In its explanation to Beverly -- and apparently in its determination of interest due under both the policy and California law -- Prudential substituted the 'current rate of Interest' for the code's 'then current rate of interest,' dramatically altering the applicable interest rate in its favor. "When Roderick died in 1981, the current interest rates were at record highs. Upon information and belief, the then-current rate of interest on death proceeds left on deposit with Prudential was far higher than 2.5 percent. Prudential thus grossly underpaid Beverly under California law and the policy." (Interest rates hit double digits in 1980-81, and were a major factor in making Jimmy Carter a one-term president.) Burton wants Prudential enjoined from paying interest "untethered" to interest rates at the time of death. She also seeks class certification, restitution and damages for violation of the Business and Professions Code, breach of covenant of good faith and fair dealing, and breach of contractual duty to pay a covered claim. Prudential spokesman Bob DeFillippo said he could not comment on pending litigation. The Plaintiff is represented by: William Shernoff, Esq. SHERNOFF BIDART ECHEVERRIA BENTLEY LLP 301 N. Canon Drive, Suite 200 Beverly Hills, CA 90210 Telephone: (310) 246-0503 Facsimile: (310) 246-0380 E-mail: wshernoff@shernoff.com RJ REYNOLDS: Appeal Court Upholds $27MM Tobacco Suit Judgment ------------------------------------------------------------- Adolfo Pesquera, writing for Daily Business Review, reports that offering all the backhanded support it could muster, the First District Court of Appeal reluctantly upheld a $27 million judgment in a Jackson County tobacco product liability case. Emmon Smith died at 80 shortly after his trial ended in March 2012. He was awarded $7 million in compensatory damages plus $20 million in punitive damages. In 1992, he had a lung removed because of cancer. The unsigned opinion on Nov. 20 simply said "affirmed" and cited a 2012 case, R.J. Reynolds Tobacco v. Townsend, in which a $10.8 million judgment was upheld. But in specially concurring and concurring opinions, judges on the unanimous panel lamented at length over their obligation to accept the trial court's decision. First District Judge T. Kent Wetherell complained the appellate court's 2012 opinion set precedent by making it nearly impossible for the court to declare a compensatory damage award up to $10.8 million excessive in any future smoker cases. Smith's was one of about 8,000 Florida smokers who filed individual cases after the Florida Supreme Court disbanded a statewide class action tried in Miami. Were it not for Townsend, Judge Wetherell said he would disagree with the Smith award but "am duty-bound to concur." He called the Smith's damage award "conscience-shocking, at least to me, and grossly overcompensates." Judge Wetherell also argued punitive damages should be awarded at a 1-to-1 ratio when compensatory damages are substantial. Likewise, First District Judge Scott Makar said he affirmed "with much reluctance." He questioned the evidence for economic loss, calling the trial record sparse. Mr. Smith lived 20 years after his surgery, retired at age 60 from a state job and continued a "fulfilling working career as a minister in his church until roughly around 2006," Judge Makar said. "Mr. Smith testified that he was able to do most of the things he had done before the surgery." The third concurring judge, Nikki Ann Clark, issued no opinion. Stuart Ratzan -- stuart@ratzanlawgroup.com -- of Ratzan Law Group in Miami, who was on the team of lawyers representing the Smith and his widow, said, "We and the Smith family, Vernell Smith in particular, are extremely pleased with the outcome and the affirmance of the trial court and the jury verdict." Mr. Ratzan also said he was happy the concurring judges recognized the importance of the case law and followed it. "We obviously disagree with their opinion regarding the work that this jury did," he added. Co-counsel J.B. Harris -- jbharrisesq@gmail.com -- of Coral Gables said, "Given the billions of dollars Big Cig made selling a deadly and defective product to a generation of unsuspecting smokers like the late Mr. Smith, who began smoking at the tender age of 13, we think the verdict is fair and just and wholly in line with the precedent." Reynolds was represented by Charles Beall Jr. of Moore Hill & Westmoreland in Pensacola, as well as by attorneys from Jones Day in Atlanta and Washington. Reynolds has a policy of not commenting on ongoing litigation. ROYAL CARIBBEAN: Securities Lawsuit in Florida Now Closed --------------------------------------------------------- A consolidated securities lawsuit filed against Royal Caribbean Cruises Ltd. in the United States District Court of the Southern District of Florida is now closed after the plaintiffs did not appeal the dismissal of the case, according to the company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. Between August 1, 2011 and September 8, 2011, three similar purported class action lawsuits were filed against the company and certain of the company's current and former officers in the United States District Court of the Southern District of Florida. The cases were consolidated and a consolidated amended complaint was filed on February 17, 2012. The consolidated amended complaint was filed on behalf of a purported class of purchasers of the company's common stock during the period from October 26, 2010 through July 27, 2011 and named the Company, the company's Chairman and CEO, the company's Vice Chairman, the President and CEO of the company's Royal Caribbean International brand and the former President and CEO of the company's Celebrity Cruises brand as defendants. The consolidated amended complaint alleged violations of Section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 as well as, in the case of the individual defendants, the control person provisions of the Securities Exchange Act. The complaint principally alleged that the defendants knowingly made incorrect statements concerning the Company's outlook. The consolidated amended complaint sought unspecified damages, interest, and attorneys' fees. The company filed a motion to dismiss the complaint for failure to state a claim on April 9, 2012. On April 18, 2013, the district judge granted the company's motion and ordered the case dismissed with prejudice. Plaintiffs did not appeal this order and the case is now closed. ROYAL CARRIBEAN: Stateroom Attendants Appeal Dismissal of Suit -------------------------------------------------------------- Plaintiffs who are stateroom attendants have appealed the dismissal of their case to the United States Court of Appeals, 11th Circuit, according to the company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. A class action complaint was filed in June 2011 against Royal Caribbean Cruises Ltd. in the United States District Court for the Southern District of Florida on behalf of a purported class of stateroom attendants employed onboard Royal Caribbean International cruise vessels alleging that they were required to pay other crew members to help with their duties in violation of the U.S. Seaman's Wage Act. The lawsuit also alleges that certain stateroom attendants were required to work back of house assignments without the ability to earn gratuities in violation of the U.S. Seaman's Wage Act. Plaintiffs seek judgment for damages, wage penalties and interest in an indeterminate amount. In May 2012, the Court granted the company's motion to dismiss the complaint on the basis that the applicable collective bargaining agreement requires any such claims to be arbitrated. Plaintiffs have appealed this decision to the United States Court of Appeals, 11th Circuit. The company believes the appeal is without merit as are the underlying claims made against the company and the company intends to vigorously defend ourselves against them. Because of the inherent uncertainty as to the outcome of the proceeding described above, the company is unable at this time to estimate the possible impact of this matter on us. SEI INVESTMENTS: Dismissal of Lawsuit v. Subsidiary Affirmed ------------------------------------------------------------ The Second Circuit Court of Appeals issued an opinion affirming the dismissal of an amended complaint filed against a subsidiary of SEI Investments Company in relation to leveraged exchange traded funds (ETFs), according to the company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. One of SEI's principal subsidiaries, SIDCO, has been named as a defendant in certain putative class action complaints (the Complaints) related to leveraged exchange traded funds (ETFs) advised by ProShares Advisors, LLC. The first complaint was filed on August 5, 2009 and the subsequent cases were all consolidated in the Southern District of New York. The Complaints are purportedly made on behalf of all persons that purchased or otherwise acquired shares in various ProShares leveraged ETFs pursuant or traceable to allegedly false and misleading registration statements, prospectuses and statements of additional information. The Complaints name as defendants ProShares Advisors, LLC; ProShares Trust; ProShares Trust II, SIDCO, and various officers and trustees to ProShares Advisors, LLC; ProShares Trust and ProShares Trust II. The Complaints allege that SIDCO was the distributor and principal underwriter for the various ProShares leveraged ETFs that were distributed to authorized participants and ultimately shareholders. The Complaints allege that the registration statements for the ProShares ETFs were materially false and misleading because they failed adequately to describe the nature and risks of the investments and claim that SIDCO is liable for these purportedly material misstatements and omissions under Section 11 of the Securities Act of 1933. On September 7, 2012, the District Court for the Southern District of New York issued an opinion dismissing with prejudice the plaintiffs' amended complaint. Plaintiffs filed with the Second Circuit Court of Appeals a notice of appeal of the District Court's decision and on July 22, 2013, the Second Circuit Court of Appeals issued an opinion affirming the decision of the District Court dismissing the amended complaint. While the outcome of this litigation is uncertain given its early phase, SEI believes that it has valid defenses to plaintiffs' claims and intends to defend the lawsuits vigorously. SEI INVESTMENTS: Faces Suits in La. Over "Unfair" Trade Practice ---------------------------------------------------------------- SEI Investments Company has been named in six lawsuits filed in Louisiana, according to the company's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. Five lawsuits were filed in the 19th Judicial District Court for the Parish of East Baton Rouge, State of Louisiana. One of the five actions purports to set forth claims on behalf of a class and also names SEI Private Trust Company as a defendant and, as described below, was certified as a class in December 2012. Two of the other actions also name SPTC as a defendant. All five actions name various defendants in addition to SEI, and, in all five actions, the plaintiffs purport to bring a cause of action against SEI and SPTC under the Louisiana Securities Act. The class action originally included a claim against SEI and SPTC for an alleged violation of the Louisiana Unfair Trade Practices Act. Two of the other five actions include claims for violations of the Louisiana Racketeering Act and possibly conspiracy. In addition, another group of plaintiffs filed a lawsuit in the 23rd Judicial District Court for the Parish of Ascension, State of Louisiana, against SEI and SPTC and other defendants asserting claims of negligence, breach of contract, breach of fiduciary duty, violations of the uniform fiduciaries law, negligent misrepresentation, detrimental reliance, violations of the Louisiana Securities Act and Louisiana Racketeering Act and conspiracy. The underlying allegations in all the actions are purportedly related to the role of SPTC in providing back-office services to Stanford Trust Company. The petitions allege that SEI and SPTC aided and abetted or otherwise participated in the sale of "certificates of deposit" issued by Stanford International Bank. Two of the five actions filed in East Baton Rouge were removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to United States District Court for the Northern District of Texas. On August 31, 2011, the United States District Court for the Northern District of Texas issued an order and judgment that the causes of action alleged against SEI in the two removed actions were preempted by federal law and the court dismissed these cases with prejudice. Plaintiffs appealed this ruling, and on March 19, 2012, a panel of the Court of Appeals for the Fifth Circuit reversed the decision of the United States District Court and remanded the actions for further proceedings. On July 18, 2012, SEI filed a petition for a writ of certiorari in the United States Supreme Court, seeking review of the decision by the United States Court of Appeals in the Fifth Circuit to permit the claims against SEI to proceed. SEI believes that the trial court correctly concluded that the claims against SEI were barred by the federal Securities Litigation Uniform Standards Act and is requesting that the Supreme Court reinstate that dismissal. On January 18, 2013, the Supreme Court granted the petition for a writ of certiorari. On October 7, 2013, the Supreme Court heard oral argument on the appeal. The case filed in Ascension was also removed to federal court and transferred by the Judicial Panel on Multidistrict Litigation to the Northern District of Texas. The schedule for responding to that complaint has not yet been established. The plaintiffs in the remaining two cases in East Baton Rouge have granted SEI and SPTC an extension to respond to the filings. SEI and SPTC filed exceptions in the class action pending in East Baton Rouge, which the Court granted in part and dismissed the claims under the Louisiana Unfair Trade Practices Act and denied in part as to the other exceptions. SEI and SPTC filed an answer to the East Baton Rouge class action, plaintiffs filed a motion for class certification; and SEI and SPTC also filed a motion for summary judgment against certain named plaintiffs which the Court stated will not be set for hearing until after the hearing on the class certification motion. The Court in the East Baton Rouge action held a hearing on class certification on September 20, 2012. By oral decision on December 5, 2012 and later entered in a judgment signed on December 17, 2012 that was subsequently amended, the Court in East Baton Rouge certified a class to be composed of persons who purchased any Stanford International Bank certificates of deposit (SIB CDs) in Louisiana between January 1, 2007 and February 13, 2009; persons who renewed any SIB CD in Louisiana between January 1, 2007 and February 13, 2009; or any person for whom the Stanford Trust Company purchased SIB CDs in Louisiana between January 1, 2007 and February 13, 2009. On January 30, 2013, SEI and SPTC filed motions for appeal from the judgments that stated SEI's and SPTC's intention to move to stay the litigation. On February 1, 2013, plaintiffs filed a motion for Leave to File First Amended and Restated Class Action Petition in which they ask the Court to allow them to amend the petition in this case to add additional facts that were developed during discovery and adding claims against certain of SEI's insurance carriers. On February 5, 2013, the Court granted two of the motions for appeal and the motion for leave to amend. On February 15, 2013, SEI filed a motion for new trial, or, in the alternative, for reconsideration of the Court's order allowing amendment. On February 22, 2013, SEI filed a motion to stay proceedings in view of the pending Supreme Court case. On February 28, 2013, SEI responded to the First Amended and Restated Class Action Petition by filing an exception. On March 11, 2013, the insurance carrier defendants filed a notice of removal removing the case to the Middle District of Louisiana and on March 18, 2013, the insurance carrier defendants filed answers. On March 13, 2013, SEI notified the Judicial Panel on Multidistrict Litigation (MDL) of this case as a potential tag- along action. On March 19, 2013, plaintiffs filed a motion to remand, a motion for expedited briefing schedule, expedited status conference and expedited consideration of their motion to remand, a motion for leave to file under seal and a motion for order pursuant to 28 U.S.C. 1447(b) requiring removing defendants to supplement federal court record with certified copy of state court record. These motions are now fully briefed. On March 25, 2013, SEI filed a motion that the court decline to adopt the state court's order regarding class certification, which the court dismissed without prejudice to renew upon a determination of removal jurisdiction in an April 12, 2013 order that also dismissed without prejudice a motion to dismiss for lack of jurisdiction and improper venue filed on April 9, 2013 by one of the insurers. On April 1, 2013, the Louisiana Office of Financial Institutions (OFI) filed a motion to remand and sever claims, and a response to that motion by the insurers and opposition to that motion by the plaintiffs were filed on April 22, 2013. Along with the briefing in the Middle District of Louisiana, on March 13, 2013, SEI notified the Judicial Panel on Multidistrict Litigation (MDL) of this case as a potential tag-along action. On March 19, 2013, plaintiffs notified the MDL that they had filed a motion to remand and asked the panel to decline to issue a conditional transfer order. On March 29, 2013, the MDL issued a conditional transfer order (CTO). On April 18, 2013, OFI filed a motion to vacate the CTO or, in the alternative, stay any ruling to transfer the matter until after the Middle District of Louisiana ruled on OFI's motion to remand and sever. Plaintiffs filed a motion to vacate the CTO on April 19, 2013. SEI's responses to those motions were filed on May 9, 2013. On June 12, 2013, the MDL Panel issued an order notifying the parties that on July 25, 2013, it would consider, without oral argument, Plaintiffs' and OFI's motions to vacate the CTO. On August 7, 2013, the MDL Panel affirmed the CTO and transferred the matter against SEI to the US District Court for the Northern District of Texas; the MDL Panel also severed the claims against OFI and remanded those claims to the Middle District of Louisiana. On September 11, 2013, defendants filed a motion requesting a status conference with the Court to address the status of all pending motions. On October 4, 2013, Plaintiffs filed a petition for a writ of mandamus asking the United States Court of Appeals for the Fifth Circuit to review the MDL Panel's transfer Order. While the outcome of this litigation is uncertain given its early phase, SEI and SPTC believe that they have valid defenses to plaintiffs' claims and intend to defend the lawsuits vigorously. Because of the uncertainty of the make-up of the classes, the outcome of the proceeding in the United States Supreme Court, the specific theories of liability that may survive a motion for summary judgment or other dispositive motion, the lack of discovery regarding damages, causation, mitigation and other aspects that may ultimately bear upon loss, the Company is not reasonably able to provide an estimate of loss, if any, with respect to the foregoing lawsuits. SERVICE CORPORATION: Certification of Case by Decedent Reversed --------------------------------------------------------------- The Court of Appeals reversed an order certifying the case filed by the son and sister of a decedent buried at Graceland Memorial Park South, according to Service Corporation International's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. Reyvis Garcia and Alicia Garcia v. Alderwoods Group, Inc., Osiris Holding of Florida, Inc., a Florida corporation, d/b/a Graceland Memorial Park South, f/k/a Paradise Memorial Gardens, Inc., was filed in December 2004, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Case No. 04-25646 CA 32. Plaintiffs are the son and sister of the decedent, Eloisa Garcia, who was buried at Graceland Memorial Park South in March 1986, when the cemetery was owned by Paradise Memorial Gardens, Inc. Initially, the suit sought damages on the individual claims of the plaintiffs relating to the burial of Eloisa Garcia. Plaintiffs claimed that due to poor recordkeeping, spacing issues and maps, and the fact that the family could not afford to purchase a marker for the grave, the burial location of the decedent could not be readily located. Subsequently, the decedent's grave was located and verified. In July 2006, plaintiffs amended their complaint, seeking to certify a class of all persons buried at this cemetery whose burial sites cannot be located, claiming that this was due to poor recordkeeping, maps, and surveys at the cemetery. Plaintiffs subsequently filed a third amended class action complaint and added two additional named plaintiffs. The plaintiffs are seeking unspecified monetary damages, as well as equitable and injunctive relief. On May 4, 2011, the trial court certified a class and the company appealed that ruling. On July 31, 2013, the Court of Appeals reversed the order certifying the case. The company cannot quantify the company's ultimate liability, if any, for the payment of any damages. SERVICE CORPORATION: Dismissal of Suit v. SCI Under Appeal ---------------------------------------------------------- The plaintiffs in a suit alleging wrongful burial practices of SCI Funeral Services of Florida, Inc. are appealing the dismissal of the case, according to Service Corporation International's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. Barbara Schwartz & Carol Neitlich, Individually and on behalf of all others similarly situated v. SCI Funeral Services of Florida, Inc., et al.; Case No. 2012CA015954, In the Circuit Court of the 15th Judicial District in and for Palm Beach County, Florida. This lawsuit has been removed to the U.S. District Court for the Southern District of Florida and is now Case No. 9:12-CV-80180- DMM. This case was filed by counsel for plaintiffs in the Sands case regarding the company's Star of David Memorial Gardens Cemetery and Funeral Chapel and Bailey Memorial Gardens located in North Lauderdale, Florida. Plaintiffs seek to certify a class of cemetery plot owners and their families. Plaintiffs allege the cemetery engaged in wrongful burial practices and did not disclose them to customers. Plaintiffs seek compensatory, consequential and punitive damages as well as the appointment of a receiver to oversee the cemetery operations. On the company's motion, the court dismissed the plaintiffs' claims in March 2013. The plaintiffs are appealing the dismissal. The company cannot quantify the company's ultimate liability, if any, for the payment of any damages. SERVICE CORPORATION: "Helm" Plaintiff Appeals Decertification ------------------------------------------------------------- The plaintiff in the suit Helm, et al. v. AWGI & SCI is appealing an order decertifying labor claims, according to Service Corporation International's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. The company is named a defendant in various lawsuits alleging violations of federal and state laws regulating wage and hour overtime pay, including but not limited to the Bryant and Helm lawsuits. Bryant, et al. v. Service Corporation International, et al.; Case No. RG-07359593; and Helm, et al. v. AWGI & SCI; Case No. RG- 07359602; in the Superior Court of the State of California, County of Alameda. These cases were filed on December 5, 2007. These cases were removed to federal court in the U.S. District Court for the Northern District of California, San Francisco/Oakland Division. The Bryant case is now Case No. 3:08- CV-01190-SI and the Helm case is now Case No. C 08-01184-SI. On December 29, 2009, the court in the Helm case denied the plaintiffs' motion to certify the case as a class action. The plaintiffs modified and refiled their motion for certification. On March 9, 2011, the court denied plaintiffs' renewed motions to certify a class in both of the Bryant and Helm cases and dismissed the Helm case. The Helm plaintiff is appealing the court's order decertifying her claims. The individual claims in the Bryant case are still pending. The plaintiffs have also (i) filed additional lawsuits with similar allegations seeking class certification of state law claims in different states, and (ii) made a large number of demands for arbitration. The company cannot quantify the company's ultimate liability, if any, in these lawsuits. SERVICE CORPORATION: Suit Over Steward Acquisition on Hold ---------------------------------------------------------- The case filed against Service Corporation International over a plan to acquire Stewart Enterprises, Inc. has been stayed until after the closing of the acquisition, according to Service Corporation International's Oct. 24, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. Karen Moulton, Individually and on behalf of all others similarly situated v. Stewart Enterprises, Inc., Service Corporation International and others; Case No. 2013-5636; in the Civil District Court Parish of New Orleans. This case was filed as a class action in June 2013 against SCI and the company's subsidiary in connection with SCI's proposed acquisition of Stewart Enterprises, Inc. The plaintiffs allege that SCI aided and abetted breaches of fiduciary duties by Stewart Enterprises and its board of directors in negotiating the combination of Stewart Enterprises with a subsidiary of SCI. The plaintiffs seek damages and an injunction against the proposed combination. The company filed exceptions to the plaintiffs' complaint, but the case has been stayed until after the closing of the acquisition. The company cannot quantify the company's ultimate liability, if any, for the payment of damages. The ultimate outcome of the matters described above cannot be determined at this time. The company intends to vigorously defend all of the above lawsuits; however, an adverse decision in one or more of such matters could have a material effect on the company, the company's financial condition, results of operations, and cash flows. SUMMERLIN HOSPITAL: Tuberculosis Investigation Spurs Class Action ----------------------------------------------------------------- Doug Johnson and Craig Huber, writing for FOX5, reports that the tuberculosis investigation at Summerlin Hospital has spurred a class action lawsuit. It was filed by attorneys representing employees, patients, guests and volunteers exposed to the potentially lethal infectious disease over the summer. One of the attorneys behind the suit said the hospital endangered every one of his clients by failing to diagnose the original tuberculosis patient and by allowing her to roam the hospital without a mask. "Failure to maintain a sanitary environment, failure to maintain records, failure to properly diagnose -- they should have adhered to their own protocols and policies," attorney Matthew Callister said. Vanessa White, the patient who brought tuberculosis to the hospital, was mainly in the neonatal intensive care unit, but Mr. Callister claims the disease was spread to other parts of the hospital by the respiratory therapist who treated her. "Respirator people roam through the hospital, so that can cause a scenario in which to contract the disease," Mr. Callister said. Mr. Callister said he is representing 15 hospital employees who tested positive for latent tuberculosis. At least two of them developed active cases. His suit involves more than employees. "Everything from employees to patients to third party vendors," he said. The hospital on Nov. 20 released a statement about the lawsuit, which states, "Although we have not yet seen the lawsuit, Summerlin Hospital intends to defend this case vigorously and looks forward to our opportunity to present all of the facts of this matter in court." Mr. Callister said he hasn't yet determined what damages his clients will seek. "It's grossly premature to talk about monetary damages. I don't even know as of yet how to monetize the damages of someone who might have been exposed," he said. Mr. Callister said he will bring in another law firm from New Orleans to help with the case because that firm has experience dealing with mass medical tort law. A separate class action suit has been filed by the husband of Ms. White, who, along with her two newborn daughters, died as a result of tuberculosis. His attorneys claim Summerlin Hospital failed to diagnose her case of tuberculosis. SUTTER HEALTH: Suit Over Health Care Market Monopoly Dismissed -------------------------------------------------------------- Judge Laurel Beeler of the U.S. District Court for the Northern District of California granted Sutter Health's motion to dismiss a class action lawsuit. The lawsuit, captioned Djeneba Sidibe and Diane Dewey, on Behalf of Themselves and All Others Similarly Situated v. Sutter Health, and DOES 1 through 25, inclusive, Case No. C 12-04854 LB, alleges that Sutter's anticompetitive conduct in the health care services industry in Northern California violates federal and state antitrust laws and California's unfair competition law. The alleged anticompetitive conduct includes (1) Sutter's imposing tying arrangements that require health plans to include all Sutter providers in their networks in order to have reduced rate access at Sutter's hospitals, and (2) Sutter's use of its market power to maintain and enhance its monopolies over Inpatient Hospital Services in Northern California. Sutter Health owns and operates hospitals and other health care service providers. The Plaintiffs are represented by: Azra Z. Mehdi, Esq. THE MEHDI FIRM One Market, Spear Tower, Suite 3600 San Francisco, CA 94105 Telephone: (415) 293-8039 Facsimile: (415) 293-8001 E-mail: Azram@themehdifirm.com TESLA MOTORS: Faces "Rahimi" Securities Class Suit in California ---------------------------------------------------------------- Robert Rahimi, Individually and on Behalf of All Other Persons Similarly Situated v. Tesla Motors, Inc., Elon Musk, and Deepak Ahuja, Case No. 3:13-cv-05216-CRB (N.D. Cal., November 8, 2013) is a federal securities class action on behalf of those who purchased Tesla securities between May 10, 2013, and November 6, 2013, inclusive, seeking to recover damages caused by the Defendants' alleged violations of the federal securities laws and to pursue remedies under the Securities Exchange Act of 1934. Tesla was founded in 2003 and is headquartered in Palo Alto, California. Tesla claims to use proprietary technology and state- of-the-art manufacturing processes to create one of the safest vehicles on the road today. Tesla designs, develops, manufactures, and sells electric vehicles and electric vehicle powertrain components. The company also provides services for the development and sale of electric powertrain systems and components, to other automotive manufacturers. It markets and sells its vehicles through Tesla stores, as well as via the Internet. Elon Musk has served as the Company's Chief Executive Officer throughout the Class Period. Deepak Ahuja has served as the Company's Executive Vice President and Chief Financial Officer throughout the Class Period. The Plaintiff is represented by: Lionel Z. Glancy, Esq. Michael Goldberg, Esq. Robert V. Prongay, Esq. GLANCY BINKOW & GOLDBERG LLP 1925 Century Park East, Suite 2100 Los Angeles, CA 90067 Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: lglancy@glancylaw.com mmgoldberg@glancylaw.com rprongay@glancylaw.com - and - Jeremy A. Lieberman, Esq. Matthew L. Tuccillo, Esq. Lesley F. Portnoy, Esq. POMERANTZ GROSSMAN HUFFORD DAHLSTROM & GROSS LLP 600 Third Avenue, 20th Floor New York, NY 10016 Telephone: (212) 661-1100 Facsimile: (212) 661-8665 E-mail: jalieberman@pomlaw.com mltuccillo@pomlaw.com lfportnoy@pomlaw.com - and - Patrick V. Dahlstrom, Esq. Ten South La Salle Street, Suite 3505 Chicago, IL 60603 Telephone: (312) 377-1181 Facsimile: (312) 377-1184 E-mail: pdahlstrom@pomlaw.com - and - Peretz Bronstein, Esq. BRONSTEIN GEWIRTZ & GROSSMAN LLC 60 East 42nd Street, Suite 4600 New York, NY 10165-0006 Telephone: (212) 697-6484 Facsimile: (212) 697-7296 E-mail: peretz@bgandg.com TESLA MOTORS: Baltodano Files Securities Class Suit in Calif. ------------------------------------------------------------- Max Taves, writing for The Recorder, reports that Tesla Motors Inc. skimps on overtime wages and denies meal and rest breaks to its California workers, according to a proposed employment class action filed in Oakland on Nov. 22. "Defendants have a uniform and unlawful policy of failing to pay overtime wages for hours worked in excess of eight hours per work day," wrote plaintiffs attorney Hernaldo Baltodano of Baltodano & Baltodano. Tesla Motors, whose outside counsel is not yet known, did not return a request for comment on Nov. 25. Brought in Alameda County Superior Court on behalf of two workers at its Fremont-based manufacturing site, Villahermosa v. Tesla accuses the electric car maker of practices that routinely violate state wage-and-hour laws. Among their allegations, plaintiff employees say the company systematically miscalculates overtime pay because it rounds up workers' start times and rounds down their end times. "Because the rounding mechanism utilized by [Tesla] is not even- handed over time, it has unfairly benefitted defendants and deprived plaintiffs of all wages which they are owed," plaintiffs asserted in their 20-page complaint. Also, the plaintiffs say, the company fails to provide a second meal period for employees whose shifts exceed 10 hours per day. Villahermosa is the latest in a series of suits pending against Elon Musk's Palo Alto-based, publicly traded car maker. The same day the employment class action was filed, Tesla shareholders filed suit in the Northern District of California, alleging that the company's executives misled investors about the safety of its electric vehicles. Earlier in November, another securities suit made similar allegations after three of Tesla's battery-powered luxury cars burst into flames in different incidents. TREASURY WINE: Maurice Blackburn Dismisses Chief's Criticism ------------------------------------------------------------ Jared Lynch, writing for BusinessDay, reports that Maurice Blackburn has dismissed the chief of Treasury Wine Estates' criticism about shareholder class actions as a "glass-jaw reaction". Treasury Wine chief executive Warwick Every-Burns told BusinessDay litigation funds and their law-firm partners were usurping the role of regulatory authorities in their pursuit of boards, while companies could shy away from growth plans for fear of being slapped with a shareholder class action lawsuit. But law firm Maurice Blackburn managing principal Ben Slade said Mr. Every-Burns had missed the point. "If directors and corporations fulfil their proper duties and comply with the Corporations Act they will have nothing to fear from a robust class actions regime," Mr. Slade said. He said class actions accounted for 0.1 per cent of all litigation in Australia. About 14 class actions started on average each year, with about half being supported by litigation funders. "There is strong anecdotal evidence that business practices are becoming more rigorous and ultimately benefiting shareholders and institutional investors alike because companies know they can be held to account via class actions," he said. "This has become blatantly evident . . . with the glass-jaw reaction from Treasury Wines Estate chief executive Warwick Every-Burns." Treasury Wine is the target of two legal actions flowing from its damaging AUD160 million write-down in July of wine inventories in the US. Litigation funder IMF and Maurice Blackburn are representing aggrieved shareholders for a potential AUD100 million class action, while a separate lawsuit is being pursued by former Minter Ellison partner Mark Elliott. "On its face, it looks pretty bad. ASIC will not get money back for those superannuants who have lost so much, so it's left to them to take private action," Mr. Slade said. "Big business affects many people. Those that fail to do the right thing should be held to account. They should compensate their victims. ASIC is able to force compliance only too rarely. "The class action mechanism helps victims to make that happen; otherwise thousands of people would not be able to stand up to corporate wrongdoing." UBC: Judge Allows Suit Over Destroyed Sperm Samples to Proceed -------------------------------------------------------------- Will McDonald, writing for The Ubyssey, reports that a court recently issued a ruling that could hurt UBC in an ongoing class action lawsuit involving over 400 men whose sperm was destroyed due to a power outage in a UBC sperm bank. On Nov. 20, Justice Bruce Butler ruled that UBC could be sued for the destroyed sperm, despite a clause in an agreement UBC previously argued would have prevented the men from suing them. "It's a significant blow to UBC's position that was their primary defense throughout that no matter what, they were weren't liable, and the court has now held otherwise and we're confident that we'll be able to prove that UBC is negligent," said Sandy Kovacs, a lawyer representing the men in the class action suit. "UBC is studying the reasons for judgment carefully and will consult with counsel for the other parties involved in this litigation along with UBC," said UBC spokesperson Lucie McNeill in a statement. "As of this date, no decision has been made regarding an appeal. UBC looks forward to resolving all of the issues in this case at the earliest possible date." Legal action related to the destroyed sperm has been ongoing for several years. UBC is named along with several other parties in a class action suit related to a sperm bank that suffered a power outage in 2002. Around 400 men named in the class action lawsuit, the majority of whom were undergoing radiation therapy for treatable forms of cancer that affected their fertility, were encouraged to donate their sperm to a UBC-operated facility. On May 24, 2002, a circuit breaker tripped, resulting in a power outage in one freezer holding sperm samples. The freezer thawed, then refroze, destroying the samples. Mr. Kovacs alleges that UBC didn't store the sperm in the proper way. "The gold standard for storage of crowd-preserved semen has always been storage in liquid nitrogen, at least in those days," said Mr. Kovacs. "They weren't using, we say, the proper storage method and having chosen the method that they did choose, there was no uninterruptible power source." Mr. Kovacs said he isn't aware of any similar cases to set legal precedent for how much the men should be awarded in the suit. However, he said cases involving loss of fertility in women have resulted in settlements in the range of $100,000 per person. "We've looked at cases where women have lost the ability to have children and we're drawing an analogy," said Mr. Kovacs. "We say there shouldn't be a differentiation between men and women." Mr. Kovacs said the litigation process will likely drag on due to the large number of parties involved. He said he hopes to go to trial to issue a ruling on negligence within the next year. UNITED STATES: May Defend Itself Against Suit Over AIG Bailout -------------------------------------------------------------- Annie Youderian at Courthouse News Service reports that the government "should be afforded the opportunity" to defend itself against a class action challenging its 2008 bailout of American International Group, a U.S. judge ruled. Judge Thomas Wheeler of the U.S. Court of Federal Claims largely rejected a motion to strike the government's affirmative defenses in a lawsuit filed by AIG shareholder Starr International Co. in November 2011. Starr and other shareholders claim the bailout amounted to an unconstitutional government "taking" without fair compensation. At the height of the financial crisis, the government gave the financial services company an $85 million revolving credit line in exchange for a 79.9 percent equity stake in AIG. The move came amid fears that AIG would collapse and take other Wall Street firms with it, causing unsustainable ripples in the U.S. economy. The government raised seven arguments in its defense: payment, contingent offset, equitable estoppel, waiver, hold harmless and severability. Starr moved to strike these defenses, claiming they should be tossed regardless of what the government can prove. The government countered that it should be able to present its defenses, especially given that Starr received "considerable latitude" in pursuing its claims. "The government's argument is well taken," Wheeler acknowledged. "Motions to strike affirmative defenses are disfavored in the Court of Federal Claims, particularly when there are disputed questions of law and fact, as is this case here. The government should be afforded the opportunity to develop the facts relevant to the defenses of payment, contingent offset, equitable estoppel, waiver, hold harmless, and severability." Wheeler said the government "rightly points out" that he has expressed an interest in understanding "the full picture" of the bailout. "Allowing the government to put forth its affirmative defenses will create a more complete evidentiary record, and creating a record that reflects the full picture of what happened during the rescue of AIG outweighs any resulting marginal burden placed upon Starr," Wheeler wrote. He refused to strike all but one defense: the defense of laches, which argues that Starr waited too long to file its claim. There was no unreasonable delay in this case, the judge explained, because Starr filed suit three years after the bailout and within the six-year statute of limitations. "Therefore, laches is not a viable defense under the circumstances of this case, and must be stricken," Wheeler wrote. Wheeler certified two classes in March, and in July ordered the deposition of Federal Reserve Chairman Ben Bernanke. The Plaintiff is represented by: David Boies, Esq. Robert J. Dwyer, Esq. Alanna C. Rutherford, Esq. Julia C. Hamilton, Esq. Hamish P.M. Hume, Esq. Samuel C. Kaplan, Esq. BOIES, SCHILLER & FLEXNER LLP 333 Main Street Armonk, NY 10504 Telephone: (914) 749-8200 Facsimile: (914) 749-8300 E-mail: dboies@bsfllp.com rdwyer@bsfllp.com arutherford@bsfllp.com jchamilton@bsfllp.com hhume@bsfllp.com skaplan@bsfllp.com - and - John L. Gardiner, Esq. SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 4 Times Square New York, NY 10036 Telephone: (212) 735-3000 Facsimile: (212) 735-2000 E-mail: john.gardiner@skadden.com The Government is represented by: Brian A. Mizoguchi, Esq. Assistant Director Joyce R. Branda, Esq. Deputy Assistant Attorney General Jeanne E. Davidson, Esq. Director Amanda L. Tantum, Esq. Trial Attorney Commercial Litigation Branch, Civil Division U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 The case is Starr International Company, Inc. v. The United States, Case No. 11-779C, in the United States Court of Federal Claims. USPLABS LLC: Faces Suit Over Recalled OxyELITE Pro Supplement ------------------------------------------------------------- Oskar Garcia, writing for The Associated Press, reports that a woman from Hawaii's Big Island is suing two companies who made and sold a dietary supplement that was pulled from shelves as state health officials investigate links to cases of hepatitis and liver failure. Lawyers for Everine Van Houten, 33, of Keaau, said on Nov. 20 that she bought and used OxyELITE Pro, then began experiencing abdominal pain, fatigue and nausea one month later. The lawyers say she was diagnosed with acute hepatitis, then later learned of the possible link to the supplement through a public health notice. The personal injury lawsuit was filed in federal court in Hawaii on Nov. 19. It names USPlabs LLC as the maker of the supplement and GNC Holdings Inc. as the owner of the store where Van Houten bought the supplement. The supplement is marketed to be used for weight loss and muscle building. A spokeswoman for Pittsburgh-based GNC declined to comment, saying the company doesn't comment on pending lawsuits as a matter of corporate policy. USPlabs did not immediately return a phone message seeking comment from The Associated Press. GNC, which runs about 8,200 stores nationwide, earned $73 million during the third quarter. Hawaii's Health Department ordered stores to stop selling the supplement last month, then began collecting stocks of the supplement, which comes in pill and powder form. The department stopped short of a plan to destroy the supplements on Nov. 20 when a Hawaii lawyer asked that they be preserved as possible evidence in future litigation. GNC said last month that all its 25 Hawaii stores voluntarily complied before the embargo was issued. USPlabs said in a release on its website earlier this month that it was voluntarily conducting a national recall. Health officials say the supplement has been connected with 36 cases of liver damage and acute hepatitis in Hawaii, with use of the product the only common factor between the cases. Ms. Van Houten, who worked as a clerk at Hilo Medical Center, had to miss a significant amount of work time during the past year, her lawyers said in the complaint. The complaint said she is still experiencing symptoms and is having her liver monitored. The complaint does not specify a dollar amount for damages but said Ms. Van Houten is seeking to recoup lost wages, medical and travel expenses and other damages. WELLS FARGO: Breach of Contract Claim in "Jackson" Suit Dismissed ----------------------------------------------------------------- Thomas and Patricia Jackson commenced the action THOMAS M. JACKSON and PATRICIA G. JACKSON, as individuals and as representatives of the classes, Plaintiffs, v. WELLS FARGO BANK, N.A. and WELLS FARGO INSURANCE, INC., Defendants, NO. 2:12CV1262, (W.D. Pa.), on behalf of themselves and as members of three putative classes seeking redress for alleged improper settlement charges and damages caused by defendant Wells Fargo Bank, N.A.'s demand that unnecessary flood insurance be acquired for improved real estate plaintiffs purchased with a mortgage from Wells Fargo. Wells Fargo Bank and Wells Fargo Insurance, Inc., have filed motions to dismiss the plaintiff's first amended class action complaint. In a November 6, 2013 Opinion available at http://is.gd/v47ejp from Leagle.com, District Judge David Stewart Cercone held that Wells Fargo Bank's motion to dismiss will be granted as to plaintiffs' breach of contract claim to the extent it (1) seeks to advance a cause of action for breach of the covenant of good faith and fair dealing as an independent basis for recovery and (2) is predicated on a violation of the reasonable fee authorization in Section 4012a(h) of the Federal Disaster Protection Act. Wells Fargo Insurance's motion to dismiss will be granted as to plaintiffs' claim for unjust enrichment to the extent it seeks relief based solely on a showing that the Special Flood Hazard Area determination was inaccurate or the SFHD fee was unreasonable. The motions will be denied in all other aspects. WOODBURY COUNTY, IA: Court Narrows Claims in "Clay" Case -------------------------------------------------------- In NICOLE A. CLAY, Plaintiff, v. WOODBURY COUNTY, IOWA; GLENN J. PARRETT, individually and as Sheriff of Woodbury County, Iowa; and AMY STRIM, BRIGID DELANEY, JORMA SCWEDLER, and DUSTIN DeGROOT, individually and as Deputy Sheriffs/Jailers of Woodbury County, Iowa; and the CITY OF SIOUX CITY, IOWA, and BRAD ECHTER, individually and as a Police Officer for the City of Sioux City, Defendants, NO. C 12-4042-MWB, (N.D. Iowa), the plaintiff -- a female arrestee -- asserts that defendant jail officers "strip searched" her without reasonable suspicion and in an unconstitutional manner in front of male and female officers, and did so in retaliation for her vociferous complaints about her detention and a search of her purse and cell phone, all in violation of the United States and Iowa Constitutions. Ms. Clay filed her Class Action Complaint on April 27, 2012. The current version of her claims is in her Third Amended And Substituted Class Action Complaint filed January 2, 2013. The "County Defendants" (jail officers, the former county sheriff, and the county) have moved for summary judgment on the plaintiff's "strip search" and "retaliation" claims, including "qualified immunity," lack of a cause of action under the Iowa Constitution, and lack of any basis for "Monell liability" of the former sheriff and the county. In a November 6, 2013 Memorandum Opinion and Order available at http://is.gd/J4cNAqfrom Leagle.com, District Judge Mark W. Bennett granted, in part, and denied, in part, the County Defendants' Motion For Summary Judgment. Judge Bennett granted the motion to the extent Ms. Clay has failed to generate genuine issues of material fact that would preclude "qualified immunity" of the Defendant County Officers on the part of her claim in Count IV alleging a "violation of privacy rights." The Motion is also granted to the extent that Ms. Clay has failed to generate genuine issues of material fact on the "Monell liability" of the County and the Sheriff on any of Clay's claims in Count IV or Count V. The County Defendants' motion is denied as to Officers Strim and Delaney on the part of Clay's claim in Count IV alleging "excessive force" and on her claim in Count V of "free speech retaliation," because those officers are not entitled to "qualified immunity" on those claims, but the motion is granted as to the male officers identified as defendants on those claims. Summary judgment is also denied on the "excessive force" and "retaliation" claims as to Officers Strim and Delaney to the extent such claims are based on violations of the Iowa Constitution, ruled Judge Bennett. According to the ruling, the case will proceed to trial only on the following claims: a. Ms. Clay's "unconstitutional property search" claim in Count I, but only to the extent that it involves the search of her purse and only against defendant City Police Officer Echter; b. the part of Ms. Clay's claim in Count IV alleging "excessive force," but only against Officers Strim and Delaney (and not the County or the Sheriff or the male officers); and c. Ms. Clay's "free speech retaliation" claim in Count V, but only against Officers Strim and Delaney (and not the County or the Sheriff or the male officers), and Ms. Clay can prevail on her "free speech retaliation" claim only if she first prevails on her "excessive force" claim. * Bill for Stricter Regulations on Compounding Pharmacies Passed ---------------------------------------------------------------- Sydney Lupkin, writing for ABC News, reports that most Americans had never heard of compounding pharmacies until the now-shuttered New England Compounding Center was blamed for making tainted steroid injections that killed 64 people and sickened about 700 others in a fungal outbreak in 20 states. On Nov. 18, Congress passed legislation for stricter regulations on them to prevent repeat of what officials have called the "largest documented healthcare-related outbreak in the United States." "Even in the midst of partisan stalemate, Congress can still come together to pass meaningful legislation to protect the public's health," said Allan Coukell, director of drugs and medical devices at Pew Charitable Trusts. "This legislation will help protect lives and alleviate these costs by ensuring that prescription drugs are safe, effective and of the highest quality." But not everyone is convinced the bill will make patients safer. In fact, some health policy experts say just the opposite. "It makes what is now illegal legal," said Dr. Michael Carome, who directs the health research group at Public Citizen, a think tank. The Drug Quality and Security Act would give large-scale compounding pharmacies the option to register with the Food and Drug Administration and adhere to stricter guidelines for testing and maintaining quality and sterility. In early versions of the bill, these were called "compounding manufacturers," which compounding critics were quick to note suggests that they should be treated like other drug manufacturers and adhere to mandatory guidelines, which the bill does not require. In later versions of the bill, the language was toned down to "outsourcing facilities." Supporters of the bill hope that compounding pharmacists will want to register with the FDA because doctors will prefer to use compounding pharmacists perceived as safer. Opponents fear compounders won't do it if it's not mandatory. Dr. Carome said he opposes the bill because he said it legalizes a practice that was once illegal -- large scale compounding without individual prescriptions and without following the strictest quality and sterility guidelines that drug manufacturers must follow. "It makes no sense to have two different tiers of drug manufacturers -- one that has to meet all the manufacturing guidelines and one that only has to meet some of them," Dr. Carome said. "We believe in a level playing field." Traditional compounding pharmacies make drugs for one patient at a time because those patients can't swallow pills, are allergic to an ingredient or have some other special need that prevents them from taking the standard drug. But in recent decades, compounding pharmacists have increasingly made drugs on a scale similar to that of a drug manufacturer, meaning they don't always have prescriptions for individual patients. "When you mass produce a large number of standard doses of a drug in a single batch, if quality fails, a potential to harm many more people exist," Dr. Carome said. Pew Charitable Trusts supports the bill because it clarifies the existing law, which hasn't been able to keep up with the changing compounding pharmacy industry. "Over many years, we've had repeated quality problems with compounded drugs," Mr. Coukell said. "It really suggests the status quo isn't working." Shortly after patients began turning up with never-before-seen cases of fungal meningitis, NECC was accused of manufacturing the drugs rather than making them for individual patients. When FDA inspectors arrived at the lab in Framingham, Mass., they found that a quarter of the steroid injections in one of NECC's bins contained "greenish black foreign matter," according to the report. The FDA also identified several cleanrooms that had bacterial or mold overgrowths. NECC owner Barry Cadden was subpoenaed to appear before Congress a year ago, but he declined to answer questions, invoking his Fifth Amendment right against self-incrimination. The FDA has issued more than 60 reports of compounding pharmacies that had one or more quality or sterility issues. Five compounding pharmacy testing labs received similar reports. According to FDA records, there have been 22 compounding pharmacy recalls since last March. But there are no compounding pharmacy records in the database prior to that date going back five years -- though there may have been state recalls. "I think the FDA realizes its own failure to act swiftly in the NECC case and that has elevated their scrutiny of compounding pharmacies to the point where [they] cannot -- [they] do not want to be put in the position of being accused of not taking swift action," said David Miller, president of the International Academy of Compounding Pharmacists, which had historically lobbied for looser oversight by the FDA in decades past, but last year blamed the FDA for not shutting down NECC. Prior to the NECC outbreak, compounding pharmacies were regulated by state pharmacy boards, and the FDA said it didn't have the authority to properly regulate the industry. Its hope was that new legislation would change that. Still, FDA officials said they are pleased with the new legislation. "While this bill does not provide FDA with the additional authorities it sought, it provides a regulatory framework for certain compounders who register with the FDA," said FDA spokeswoman Erica Jefferson. Compounding pharmacists who do not register with the FDA will be subject to the existing law, which is part of the Federal Food, Drug, and Cosmetic Act. This mandates that prescriptions be made for each patient individually, rather than in bulk, and has slightly less rigorous guidelines for quality and sterility testing. Any compounding pharmacy that isn't compounding prescriptions for only individual patients would be acting illegally under the proposed law, but it doesn't provide a way for the FDA to figure out which pharmacies are misbehaving. That will still be up to state inspectors. "The agency will continue enforcing the law to the full extent of its authority in order to protect public health," Ms. Jefferson said. * SEC Plans for Tougher Law Enforcement Amid Securities Cases ------------------------------------------------------------- Pensions & Investments reports that Mary Jo White, chairwoman of the Securities and Exchange Commission, plans to strengthen its law enforcement, broadening its reach and seeking more admissions of guilt. SEC enforcement could use toughening. In particular, it must drive harder bargains in the interests of shareholders when negotiating settlements in securities cases. But even then, pension funds and other institutional investors must continue to pursue their own legal actions to recover losses from corporate misconduct. A combined $2.8 billion in penalties, disgorgement or other monetary damages has come from SEC enforcement actions as of Nov. 7, addressing misconduct that contributed to the financial crisis, or that emerged from it, according to an SEC report. Most of that took place before Ms. White was named to the SEC. By contrast, securities class-action litigation settlements generally have achieved far more for shareholders. Recent settlements by financial institutions include Bank of America Corp., which settled a case this year for $2.4 billion, according to Securities Class Action Services, a unit of Institutional Shareholder Services Inc. Among other settlements were cases involving Wachovia Corp. for $627 million and Countrywide Financial Corp., for $624 million; both were settled in 2011. A Lehman Brothers Holdings Inc. action last year resulted in $516 million settlement. These settlements resulted from securities class-action litigation filed by pension funds. The outcome of the SEC's plans for tougher enforcement is too new to have played out, but even if they are effective, institutional investors will have to continue to lead efforts to seek corporate accountability and deter wrongdoing through securities litigation because they cannot rely on the SEC or other institutions to protect their assets. Investing is not just a matter of setting asset allocation policy and implementing it through hiring and firing managers to accomplish performance objectives. When corporate negligence or wrongdoing puts a company at risk or causes loss, it is the duty of fiduciary shareholders to pursue claims to protect their investments on behalf of participants, whether actively filing suit and seeking to lead the case or as passive participants recovering assets lost through corporate misdeeds. Some recent SEC enforcement decisions have come into question. Judge Jed S. Rakoff of the U.S. District Court in New York in 2009 stepped up to protect shareholders from an SEC settlement agreement, which is subject to judicial review. The judge rejected the SEC's proposed $33 million settlement with Bank of America concerning disclosure of $5.8 billion in bonuses paid by Merrill Lynch & Co. in 2008 during the financial crisis, just before the banking company acquired the financial services firm. That suggests the SEC must drive harder bargains in the interests of shareholders. The presence of pension funds has made a positive difference in the outcome of securities class-action cases. According to a Vanderbilt Law Review article in 2008, results of securities class-action litigation "show a positive and significant impact on settlement size from the presence of a public pension fund, or labor union fund, as lead plaintiff." Institutional investor cases tend to result in higher recoveries of damages, and lower attorney and litigation fees, a testimony to the value of fiduciaries pursuing such cases is in the best interest of participants. In addition, such cases can result in swifter accountability and promote deterrence, while sometimes imposing corporate governance reforms. But pursuing action often takes conviction and patience. So far, investors have come up short in their efforts to recover damages from the 2011 collapse of MF Global Holdings Ltd., although not for lack of trying by the Virginia Retirement System and Alberta Investment Management Corp. The two funds, which are co-lead plaintiffs, won an important ruling Nov. 8 in U.S. District Court some two years after they filed lawsuits. The court denied a motion by defendants to dismiss the case. As a result, the two funds can proceed with the case, including seeking discovery and class-action status on behalf of other shareholders and debtholders in MF Global, matters suspended while awaiting the outcome of the motion. In his ruling in Judge Victor Marrero of the U.S. District Court in New York likened MF Global's "catastrophic collapse . . . to a massive train wreck in which thousands of people -- passengers, crew, bystanders and others -- were seriously injured upon sudden impact with a force the victims could not see coming." The wreckage includes $1.6 billion in customer funds that were "improperly commingled and used to cover questionable company transaction," Mr. Marrero noted. The 23 defendants include Jon S. Corzine, who was MF Global's chairman and CEO; Goldman Sachs & Co.; Citigroup Global Markets Inc.; Deutsche Bank Securities Inc.; and J.P. Morgan Securities LLC. "Defendants seem convinced that no one named in this lawsuit could possibly have done anything wrong," the judge wrote in his decision denying their motion. Despite "dire signs of mounting crisis, MF Global continued to issue securities in public exchanges, repeatedly assuring investors that everything at the company was running smoothly," Mr. Marrero wrote. "Plaintiffs purchased MF Global securities issued while unknown to them ... the company was unraveling." The defendants deflect blame, attributing the collapse just to "stuff happens," Mr. Marrero wrote. By inference, the defendants contend the events at MF Global "represents . . . the acceptable model for how corporate managers should be permitted to run a company's affairs . . . insulated from accountability." The two funds have stood their ground to show such a lax corporate governance standard isn't acceptable, just as other pension funds and institutional investors have done in other securities litigation. The SEC effort to step up enforcement is commendable. But pension funds cannot rely on such action alone. They must take their own measures to protect their assets, even if it means filing legal action. ********* 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 * * *