/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/131209.mbx C L A S S A C T I O N R E P O R T E R Monday, December 9, 2013, Vol. 15, No. 243 Headlines ANZ: 38,000 Customers Join Class Action Over Excessive Bank Fees ARAMARK UNIFORM: $2.75MM Settlement Over Labor Dispute Okayed BANK OF AMERICA: Suit Over Unlawful Reinsurance Kickbacks Junked BAXTER INT'L: Initiates Voluntary Recall of Dextrose Nitroglycerin BRITISH AIRWAYS: Court Won't Junk Suit Over Bogus Fuel Surcharges CENTRAL INTELLIGENCE: Owes Notice to Drug-Test Subjects, Ct. Rules COSTA INC: Being Sold to Essilor for Too Little, Class Suit Says CROWN BOILER: Recalls Home Heating Boilers Due to CO Hazard DAIMLER TRUCKS: Recalls 2,783 Trucks Over Seat Belt Defect DRDGOLD LTD: Accused of Negligence by Former Mineworkers EASTERN INSURANCE: Faces Suit Over Proposed ProAssurance Merger EBAY INC: $4.75 Million Settlement of Featured Plus Suit Approved ENTEGRA COACH: Recalls 6 Motorhomes Due to Air Brake Gauge Defect FORD MOTOR: Recalls 56 Units of 2013 Fiesta Cars in Canada FUSION-IO INC: Issued False Positive Revenue Guidance, Suit Says H&R BLOCK: "Dreyling" Tax Suit Transferred to W.D. Missouri HALLIBURTON CO: Securities Class Action Ruling Hits Businesses HARMONY GOLD: Opposes Silicosis Suit by Former Workers HARMONY GOLD: Consolidation of Two Suits Over Silicosis Planned HARMONY GOLD: Settlement of ADR Holders' Lawsuit Faces Appeal HERTZ GLOBAL: Private Equity Holders Dump $7BB in Stock, Suit Says IGNITE RESTAURANT: "Moreno" Suit Removed to N.D. California KAISER PERMANENTE: Faces Class Action Over HIV Screening L&F INTERNATIONAL: Recalls 1,000 Mattresses Due to Fire Hazard LAND ROVER: Recalls 322 Range Rover SUVs Over Airbag Defect LION BUS: Recalls 17 Trucks Due to Defective Seat Belt LITHIA MOTORS: Settlement of Consumer Claims to Cost $3.8MM LUXURY LINK: Accused of Defrauding Vacation Booking Customers METROCORP BANCSHARES: Being Sold for Too Little, Suit Claims MOBILE COUNTY, AL: Sued Over Killing of Pet Cat at Animal Shelter NATIONAL HOCKEY: Players' Class Action Faces Uphill Battle NETFLIX INC: Calif. Court Dismisses Amended Securities Complaint NIPPON YUSEN: "Stasik" Antitrust Suit Transferred to New Jersey PACER INTERNATIONAL: Removes "Ruelas" Labor Suit to S.D. Cal. PANERA BREAD: Pays $3.7MM Portion of Labor Lawsuit Settlement PANERA BREAD: Settlement Reached in Suit by Unit's Ex-Employee PEOPLES TRUST: Class Suit Launched in B.C. Over Privacy Breach PHILIPS MEDICAL: U.S. FDA Issues Warning on Defibrillators QUALITY SYSTEMS: Faces Securities Class Suit in California RBS FINANCIAL: Wins Final OK of $1.75MM "Jordan" Suit Settlement REAL TIME: Sued Over Offers of Scratch-and-Win Settlement Cards SOUTH AFRICA: FSB May Face Suit Over Funeral Assurance Policies STARBUCKS CORP: Shift Supervisors Allowed to Get Share of Tips SUMMERLIN HOSPITAL: Allowed TB Mom Into Neonatal ICU, Suit Says TEXAS: Faces "Zahrn" Suit Over Denial of Same-Sex Marriage TREX COMPANY: Settles Product Defect Suits by Cohen & Malad TREX COMPANY: Dec. 13 Final Approval Hearing TREX COMPANY: Still Faces Lawsuits Alleging Product Defects UNITIL CORP: Denial of Certification in "Bellerman" Reviewed WESTLAKE SERVICES: "Duchene" Suit Removed to W.D. Pa. * Canada SC Clarifies Limitation Period for Secondary Proceedings ********* ANZ: 38,000 Customers Join Class Action Over Excessive Bank Fees ---------------------------------------------------------------- Amy Bainbridge, writing for ABC News, reports that the largest consumer class action in Australian history was set to begin in the Federal Court in Melbourne on Dec. 2 as 38,000 ANZ customers appeal over the bank's fees. Law firm Maurice Blackburn was taking the action on behalf of ANZ customers, with the court set to examine whether the fees are fair or whether they are excessive and therefore illegal. A High Court decision last year paved the way for the trial in the Federal Court. Maurice Blackburn has the financial backing of publicly listed litigator IMF. Andrew Watson, the head of class actions at Maurice Blackburn, says the fees are not an accurate reflection of the costs faced by banks when customers are caught out. "The fees range, but AUD25 to AUD35 is the sort of range for fees that are imposed, so you might be a dollar over on your account or a day late in your payment and the banks will slug you with a fee that's out of all proportion to what it costs them for that minor transgression," he said. "We think it's worth [in total] about AUD50 million, but overall we're running a case for 170,000 bank customers against eight major banks, and that's worth about AUD220 million." Mr. Watson says this is the first of the cases to go to trial. "It's been a long, hard fight over the last three-and-a-half years," he said. "We've been to the High Court and back, and now it's time for ANZ bank customers to have their day in court. "The fact that the banks have dropped some of their charges is a good thing and to be welcomed, but even then, some of those fees are still too high and are still the subject of this action." ANZ customers hope to win back overdue fees Fork lift driver Tim Hardman is one of the 38,000 people to sign up to the class action. The 34-year-old was an ANZ customer for six years, during which time he racked up more than AUD700 in fees. "Most of my bills were set up with direct debits, just the same as your wages go in as a direct credit," Mr. Hardman said. "Yet the ANZ likes to process their withdrawals first, and then they like to process their deposits later in the day. "Quite often as much as I tried to line up my direct debit payments with when my pay goes in, there were a few times where it was only a matter of hours when my account would be overdrawn to pay a bill and then my wages goes in later that night, yet the ANZ likes to charge people overdrawn fees, or honor fees, as they like to call it." Mr. Hardman says he is hoping to get most of his money back through the class action. "I feel it's unreasonable and unsubstantiated for banks that make billions and billions of dollars profit every year to then charge the average customer AUD30 a pop in some cases for a simple overdrawn amount which could only be overdrawn for two or three hours," he said. "Thousands of people are standing up together to say: 'Listen banks, this is just ridiculous'. Australians should be proud to say: 'This is enough'. "So if we all stand up and say this isn't right, then maybe we'll get something done." Bank fee challenge could have wide implications Dr Wayne Courtney from the University of Sydney law faculty has been monitoring the case since the High Court ruled last year that the bank fees are open to challenge. He says the court case has caught the attention of other large companies. "I know at the big end of town, some of these large institutions [are] quite worried about the effect it has on the certainty of contracts," he said. "If you say X company who provides power wants to charge, say, a $20 admin fee when the bill's paid late, I think that's created some concern at that end of town because they're now worried about whether they can justify those fees. "So I think it has the potential, I suspect, to reform some sort of structuring of fees in consumer contracts generally." Dr Courtney says the outcome of the case could have an effect on the contracts of other companies. "For a long time, large institutions engaged very capable lawyers to draft around certain basic protections the law provided in respect of charging very large amounts of money when a consumer or some other party to the contract happened to breach the contract," he said. "What's really got people interested is together with these sort of High Court developments last year, plus this new legislation, it opens up a lot more of that sort of stuff for challenge. "And I think on one side you've probably got the consumers groups saying: 'Great, we're sick of being charged these ridiculous nice round number fees for no real reason'. "[Against that] some of these large institutions at the big end of town, they're quite worried about the effect that has on the certainty and predictability of their contracts." ANZ declined an interview request ahead of the Dec. 2 class action. The Australian Bankers Association said it was inappropriate for it to comment, because it has not been involved in the case. ARAMARK UNIFORM: $2.75MM Settlement Over Labor Dispute Okayed ------------------------------------------------------------- A federal judge approved a $2.75 million settlement stemming from labor charges brought against Aramark Uniform Services Inc., reports Philip A. Janquart at Courthouse News Service. Martha Morazan, who worked for Aramark between November 2005 and May 2012, led the class accusing the uniform manufacturer of having denied overtime pay to 3,175 nonexempt, hourly employees at more than 20 facilities throughout California. The suit, filed over two years ago in Alameda County Superior Court, also claimed that the company refused employees meal and rest breaks in violation of state and federal law, including the California Business & Professions Code and the Fair Labor Standards Act. Specifically, Morazan claimed that the company engaged in a practice of rounding "clock-in and clock-out" times to the nearest quarter hour before calculating total hours worked, in favor of Aramark. The lawsuit was quickly removed to federal court in Oakland, Calif., where the paries entered mediation. After Aramark provided informal discovery in late 2012 and early 2013, the parties reached a preliminary settlement the following March. U.S. District Judge Yvonne Gonzalez Rogers granted the deal final approval on Nov. 15, allocating $687,500 of the $2.75 million settlement to attorneys' fees, more than $10,000 for litigation expenses and $30,000 to the Garden City Group, the claims administrator, for costs and expenses. "The court finds that the settlement agreement is fair, reasonable and adequate in all respects, is not collusive, is the product of good faith, arm's-length negotiations between the parties and fully complies with all applicable provisions of law," Rogers wrote. The Plaintiff is represented by: David Borgen, Esq. Laura L. Ho, Esq. Lin Yee Chan, Esq. GOLDSTEIN, DEMCHAK, BALLER, BORGEN & DARDARIAN 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Telephone: (510) 763-9800 Facsimile: (510) 835-1417 E-mail: borgen@gdblegal.com lho@gbdhlegal.com lchan@lchb.com - and - David Sohn, Esq. SOHN LEGAL GROUP, P.C. 425 California St., 19th Floor San Francisco, CA 94104 Telephone: (415) 421-1300 Facsimile: (415) 421-1815 E-mail: david@sohnlegal.com The Defendants are represented by: Eric Meckley, Esq. Kathryn M. Nazarian, Esq. MORGAN, LEWIS & BOCKIUS LLP One Market, Spear Street Tower One Spear Street San Francisco, CA 94105-1126 Telephone: (415) 442-1000 Facsimile: (415) 442-1001 E-mail: emeckley@morganlewis.com knazarian@morganlewis.com - and - Anne Marie Estevez, Esq. MORGAN LEWIS & BOCKIUS LLP 200 South Biscayne Boulevard, Suite 5300 Miami, FL 33131 Telephone: (305) 415-3330 Facsimile: (305) 415-3001 E-mail: aestevez@morganlewis.com The case is Morazan v. Aramark Uniform & Career Apparel Group, Inc., et al., Case No. 4:13-cv-00936-YGR, in the U.S. District Court for the Northern District of California (Oakland). BANK OF AMERICA: Suit Over Unlawful Reinsurance Kickbacks Junked ---------------------------------------------------------------- A class waited too long to accuse Bank of America of funneling unlawful kickbacks to reinsurance subsidiaries, costing borrowers more than $284.7 million, reports Rose Bouboushian at Courthouse News Service, citing a federal court ruling. Over a year of litigation whittled the 2012 lawsuit to one in which Thomas Riddle and Marilyn Fischer alleged that Bank of America and private mortgage insurance companies had violated the Real Estate Settlement Procedures Act (RESPA) with a scheme involving kickbacks and unearned fees. Riddle and Fischer claimed that the defendants funneled unlawful kickbacks from private mortgage insurers to lender-created reinsurance subsidiaries, letting reinsurers reap hundreds of millions of dollars in premiums while assuming little or no actual risk. The reinsurance contracts "effectively allowed the reinsurer to opt out of the scheme at its choosing and without suffering adverse consequences," according to the amended complaint. Meanwhile, borrowers allegedly paid at least $284.7 million all together for mortgage insurance. Senior U.S. District Judge Berle Schiller in Philadelphia sent the case on to limited discovery this past April but awarded the defendants summary judgment last week after finding that RESPA's one-year statute of limitations had elapsed. The clock begins running upon a given loan's closing, and in this case Riddle and Fischer's loans each closed in 2005. Schiller disagreed that the plaintiffs could toll the statute by claiming that the defendants "knowingly and actively concealed the basis for plaintiffs' claims." "The court has afforded plaintiffs ample opportunity to make their case for equitable tolling," Schiller wrote. "The record is now clear that plaintiffs did not diligently pursue their claims. Rather, they elected to pursue litigation after they were pursued by lawyers who believed that they may have claims." There is no evidence that the plaintiffs were misled by United Guaranty Residential Mortgage Insurance and Genworth Mortgage Insurance, according to the ruling. "The record is devoid of evidence that Genworth or United did anything to mislead Riddle or Fischer," Schiller wrote. "Indeed, the record lacks evidence that Genworth and United had any contact with plaintiffs." Schiller also rejected the "circular" claim that the defendants failed to disclose their alleged violations of RESPA. "Plaintiffs are trying to turn defendants' failure to inform them that they were running a scheme in violation of RESPA into an affirmative act of concealment," Schiller wrote. "This is unsurprising because silence is insufficient to toll the statute of limitations in RESPA cases; the defendant must have performed an independent act of concealment upon which the plaintiff justifiably relied. But silence is exactly what plaintiffs are relying on; defendants purportedly did not tell plaintiffs that they were engaged in conduct that violated federal law." Finally, the judge threw out the plaintiffs' new claim that the defendants submitted false documentation to Fannie Mae to gain approval as qualified mortgage insurers. "This new theory, which appeared nowhere in plaintiffs' original allegations, is a red herring that does not alter the court's analysis," Schiller wrote. The Plaintiff is represented by: Joseph H. Meltzer, Esq. Edward W. Ciolko, Esq. Amanda Trask, Esq. Donna Siegel Moffa, Esq. Terence S. Ziegler, Esq. KESSLER TOPAZ MELTZER & CHECK, LLP 280 King of Prussia Rd. Radnor, PA 19087 Telephone: (610) 667-7706 E-mail: jmeltzer@ktmc.com eciolko@ktmc.com atrask@ktmc.com dmoffa@ktmc.com tziegler@ktmc.com - and - Jesse C. Klaproth, Esq. TUCKER LAW GROUP, LLC One Penn Center 1617 JFK Blvd., Suite 1700 Philadelphia, PA 19103 Telephone: (215) 875-0609 E-mail: jklaproth@tlgattorneys.com The Defendants are represented by: David L. Permut, Esq. Matthew S. Sheldon, Esq. Thomas M. Hefferon, Esq. GOODWIN PROCTER LLP 901 New York Avenue NW Washington, DC 20001 Telephone: (202) 346-4182 E-mail: dpermut@goodwinprocter.com msheldon@goodwinprocter.com thefferon@goodwinprocter.com - and - Martin C. Bryce, Jr., Esq. Daniel J.T. McKenna, Esq. BALLARD SPAHR ANDREWS AND INGERSOLL, L.L.P. 1735 Market Street, 51st Floor Philadelphia, PA 19103 Telephone: (215) 864-8238 Facsimile: (215) 864-9511 E-mail: Bryce@ballardspahr.com mckennad@ballardspahr.com - and - Brad E. Rosen, Esq. Jane M. Byrne, Esq. Michael B. Carlinsky, Esq. QUINN EMANUEL URQUHART & SULLIVAN LLP 51 Madison Avenue, 22nd Floor New York, NY 10010 Telephone: (212) 849-7000 E-mail: bradrosen@quinnemanuel.com janebyrne@quinnemanuel.com michaelcarlinsky@quinnemanuel.com - and - Daniel Posner, Esq. QUINN EMANUEL URQUHART & SULLIVAN LLP 865 S Figueroa St., 10th Floor Los Angeles, CA 90017 Telephone: (213) 443-3220 E-mail: danposner@quinnemanuel.com - and - David E. Edwards, Esq. WHITE AND WILLIAMS LLP 1800 One Liberty Place Philadelphia, PA 19103 Telephone: (215) 864-7166 E-mail: edwardsd@whiteandwilliams.com - and - Michael N. Onufrak, Esq. WHITE & WILLIAMS LLP 1650 Market Street One Liberty Place, Suite 1800 Philadelphia, PA 19103-7395 Telephone: (215) 864-7174 Facsimile: (215) 864-7123 E-mail: onufrakm@whiteandwilliams.com - and - Michael P. Daly, Esq. Andrea L. D'ambra, Esq. Nicholas Stratton Feltham, Esq. DRINKER BIDDLE & REATH LLP One Logan Square 18th and Cherry Sts. Philadelphia, PA 19103-6996 Telephone: (215) 988-2604 E-mail: michael.daly@dbr.com ambra@dbr.com nicholas.feltham@dbr.com - and - Benito Delfin, Jr., Esq. DENTONS US LLP 601 South Figueroa St., Suite 2500 Los Angeles, CA 90017 Telephone: (213) 892-2883 E-mail: ben.delfin@dentons.com - and - Melanie A. McCammon, Esq. Reid L. Ashinoff, Esq. DENTONS US LLP 1221 Avenue of the Americas New York, NY 10020-1089 Telephone: (212) 768-5328 E-mail: melanie.mccammon@dentons.com reid.ashinoff@dentons.com - and - Nicholas M. Centrella, Esq. Aya M. Salem, Esq. CONRAD O'BRIEN 1500 Market St., Suite 3900 Centre Square West Tower Philadelphia, PA 19102-2100 Telephone: (215) 864-8098 Facsimile: (215) 864-9620 E-mail: ncentrella@cogr.com asalem@conradobrien.com The case is Riddle v. Bank of America Corporation, et al., Case No. 2:12-cv-01740-BMS, in the U.S. District Court for the Eastern District of Pennsylvania (Philadelphia). BAXTER INT'L: Initiates Voluntary Recall of Dextrose Nitroglycerin ------------------------------------------------------------------ Pharmaceutical Business Review reports that Baxter International has initiated a voluntary recall of one lot of Nitroglycerin in 5% Dextrose injection due to particulate matter found in one vial. If infused, particulate matter could lead to potential venous and/or arterial thromboembolism (blockage of blood vessels.) Other adverse events associated with injection of particulate matter include inflammation due to foreign material, particularly in the lungs, and local irritation of blood vessels. There have been no reported adverse events associated with this issue to date. The financial impact of this recall is not material to Baxter. Nitroglycerin in 5% Dextrose injection (intravenous) is indicated for treatment of peri-operative hypertension (treatment of high blood pressure before, during and after surgery); for control of congestive heart failure in the setting of acute myocardial infarction (during a new onset heart attack, a weakness of the heart muscle may cause fluid to build up in the lungs and other body tissues); for treatment of angina pectoris (chest pain) in patients who have not responded to sublingual nitroglycerin and beta-blockers (beta blocker drugs); and for induction of intraoperative hypotension (low blood pressure during surgery). Baxter's Nitroglycerin in 5% Dextrose injection is packaged in 250ml glass containers, with 12 glass containers per carton. The affected product code is 1A0694, and the affected lot number is G105197. Product affected by this recall was distributed to healthcare centers and distributors in Colombia, Saudi Arabia and the US. Baxter is notifying customers, who are being directed not to use product from the recalled lot. Customers should locate and remove all affected product from their facility. The affected lot was distributed to customers between January 17, 2013, and October 10, 2013. Unaffected lot numbers can continue to be used according to the instructions for use. Unaffected lots of product are available for replacement. BRITISH AIRWAYS: Court Won't Junk Suit Over Bogus Fuel Surcharges ----------------------------------------------------------------- Nick Divito, writing for Courthouse News Service, reports that British Airways must face a class action accusing it of imposing bogus fuel surcharges to passengers between 2007 and 212, a federal judge ruled. British Airways "did not tie its fuel surcharges to fuel prices," lead plaintiffs Russell Dover, Jonathan Stone, Cody Rank and Suzette Perry claim. "Instead, [it] used the fuel surcharge as an opportunity to charge its Executive Club members hundreds of dollars for each 'free' reward ticket, to increase its own revenue regardless of whether fuel prices were high or low." The 1-year-old federal lawsuit in Brooklyn alleges that each plaintiff booked various flights around the world, paying for fuel surcharges raging between $750 and $3,293 that did not reflect the true price of jet fuel. British Airways argued that the lawsuit is pre-empted by the federal Airline Deregulation Act of 1978, which deregulated domestic air transport and forbids states from enforcing provisions related to price, route or service of an air carrier. U.S. District Judge Raymond Dearie disagreed on Nov. 8, however, saying that the law "does not preempt contract claims, whether or not they relate to pricing or would otherwise be precluded if articulated under state consumer protection laws." British Airways states on its website that the fuel surcharges "reflect the fluctuating price of worldwide oil." A spokeswoman for the airline declined to comment on pending litigation. Dearie declined to consider the merits of both parties' claims, but ruled that the plaintiffs stated a "plausible" claim for breach of the terms and conditions that should shake out in court. A status conference was scheduled on December 4 before U.S. Magistrate Judge Marilyn Go. The Plaintiffs are represented by: Fiona Stewart, Esq. Clive Zietman, Esq. Daniel Loblowitz, Esq. STEWARTS LAW, LLP 5 New Street Square London EC4A 3BF, UK Telephone: (020) 7822-80000 E-mail: fstewart@stewartslaw.com czietman@stewartslaw.com dloblowitz@stewartslaw.com - and - David S. Stellings, Esq. Douglas Ian Cuthbertson, Esq. Jason Louis Lichtman, Esq. Nicholas Robert Diamand, Esq. LIEFF CABRASER HEIMANN & BERNSTEIN, LLP 250 Hudson Street, 8th Floor New York, NY 10013-1413 Telephone: (212) 355-9500 E-mail: dstellings@lchb.com dcuthbertson@lchb.com jlichtman@lchb.com ndiamand@lchb.com - and - Mark Schlachet, Esq. LAW OFFICES OF MARK SCHLACHET 3515 Severn Road Cleveland, OH 44118 Telephone: (216) 896-0714 Facsimile: (216) 514-6406 E-mail: mschlachet@gmail.com The Defendant is represented by: Richard Francis Hans, Esq. Colleen Michelle Carey, Esq. David Victor Sack, Esq. Keara M. Gordon, Esq. Timothy H. Birnbaum, Esq. DLA PIPER LLP (US) 1251 Avenue of the Americas, 27th Floor New York, NY 10020 Telephone: (212) 335-4530 Facsimile: (212) 884-8730 E-mail: richard.hans@dlapiper.com colleen.carey@dlapiper.com david.sack@dlapiper.com keara.gordon@dlapiper.com timothy.birnbaum@dlapiper.com The case is Dover, et al. v. British Airways, PLC (UK), Case No. 1:12-cv-05567-RJD-MDG, in the U.S. District Court for the Eastern District of New York (Brooklyn). CENTRAL INTELLIGENCE: Owes Notice to Drug-Test Subjects, Ct. Rules ------------------------------------------------------------------ The Army has a duty to warn any veterans subjected to Cold War-era drug experiments about potential health concerns as they become aware of them, Nick McCann, writing for Courthouse News Service reports, citing a federal court ruling. The ruling comes in a class action Vietnam Veterans of America filed against various government defendants in 2009, claiming that at least 7,800 soldiers had been used as guinea pigs in Project Paperclip. Soldiers were allegedly administered at least 250 and perhaps as many as 400 types of drugs, among them Sarin, one of the most deadly drugs known, amphetamines, barbiturates, mustard gas, phosgene gas and LSD. Using tactics it often attributed to the Soviet enemy, the U.S. government sought drugs to control human behavior, cause confusion, promote weakness or temporary loss of hearing and vision, induce hypnosis, and enhance a person's ability to withstand torture, according to the complaint. U.S. District Judge certified the plaintiffs as a class last year, a status that could make thousands of veterans eligible for relief. Though the defendants succeeded in tossing claims against Attorney General Eric Holder and the CIA, the Department of Defense and Department of the Army are still on the hook. The crux of the veterans' argument is that Administrative Procedure Act obligates the defendants to provide notice to test subjects and to provide them medical care. They also cite an Army regulation involving the use of volunteers as research subjects. The 1962 regulation states that participants "will be told as much of the nature, duration, and purpose of the experiment, the method and means by which it is to be conducted, and the inconveniences and hazards to be expected, as will not invalidate the results." It also says subjects "will be fully informed of the effects upon [the test subject's] health or person which may possibly come from his participation in the experiment.' The Army regulation was updated in 1990, and the veterans say the defendants have a duty to provide notice "even after the individual volunteer has completed his or her participation in research." Judge Wilken gave both sides some relief Tuesday, November 19, 2013, granting the DoD, Army and CIA summary judgment on certain claims, and giving the plaintiffs summary judgment only as to one claim against the Army. As of now, the Defense Department has given the Department of Veterans' Affairs a list of more than 16,000 test subjects, and the veterans' department sent letters to more than 3,000 of them. The government did not include the names of drugs tested on each subject, according to materials from the defendants. DoD also placed information about the testing on its website, including information about a hotline test subjects can call. In their motion for summary judgment, the defendants argued among other things that they did not have a legally enforceable duty to notify the past test subjects. Wilken said this may not necessarily prove true. "Defendants are correct that the wording of the regulations does not support the exact definition of 'notice' that plaintiffs have put forth here," the judge wrote in her 71-page order. "However, this does not mean that the regulations do not support the duty to provide some notice." Based on interpretation of the disputed Army regulation, Wilken was more persuaded by the plaintiffs' argument "that the duty to warn is properly interpreted as applying on an on-going basis, not just as part of the pre-experiment consent process, and is owed to service members who became test subjects before 1988." "The court concludes that defendants' duty to warn test subjects of possible health effects is not limited to the time that these individuals provide consent to participate in the experiments," Wilken wrote. "Instead, defendants have an ongoing duty to warn about newly acquired information that may affect the well-being of test subjects after they completed their participation in research." Wilken found in favor of the Army to the extent the plaintiffs challenged its initial notice efforts to the test subjects. The plaintiffs did not convince the court that the Department of Veterans' Affairs "systematically fails to offer them care." "Although there may be general dissatisfaction and individual erroneous results, plaintiffs and the class members can seek medical care through the DVA and challenge denial of care through the statutory scheme prescribed by Congress," Wilken wrote. The judge also found for the defendants on the plaintiffs' constitutional claims, finding the plaintiffs could not prove that it was a violation of due process when the Army did not follow its own regulations. Wilken vacated the final pretrial conference and the trial dates in this case. In an injunction accompanying the summary judgment order, Wilken directed the Army to "provide such test subjects with newly acquired information that may affect their well-being that it has learned since its original notification, now and in the future as it becomes available." The Plaintiffs are represented by: Gordon P. Erspamer, Esq. Timothy W. Blakely, Esq. Adriano Hrvatin, Esq. Kimberly L. Taylor, Esq. Stacey M. Sprenkel, Esq. MORRISON & FOERSTER LLP 425 Market St. San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 E-mail: GErspamer@mofo.com TBlakely@mofo.com AHrvatin@mofo.com KTaylor@mofo.com SSprenkel@mofo.com The case is Vietnam Veterans of America, et al. v. CIA, et al., Case No. 3:09-cv-00037, in the U.S. District Court for the Northern District of California. COSTA INC: Being Sold to Essilor for Too Little, Class Suit Says ---------------------------------------------------------------- Scott Phillips, individually and on behalf of all others similarly situated v. Costa, Inc., David G. Whalen, Russell A. Boss; Bernard A. Buonanno, Jr., Jacob C. Gaffney Dwain L. Hahs, Harlen M. Kent Andrew J. Parsons, Frances P. Philip, Essilor International, S.A., and GWH Acquisition Sub, Inc., Case No. 1:13-cv-00747-ML-LDA (D.R.I., November 19, 2013) is a stockholder class action brought on behalf of the public shareholders of Costa arising out of the Defendants' breach of fiduciary duties, and aiding and abetting of those breaches, in connection with the Board's decision to sell Costa to Essilor and Merger Sub at an alleged substantial discount via an inherently unfair process. The Plaintiff argues that the Proposed Transaction is the product of a fundamentally flawed process that fails to maximize shareholder value, in breach of the Defendants' fiduciary duties, and is designed to ensure the acquisition of Costa by Essilor on terms preferential to Essilor and Costa's Board members, but detrimental to the Plaintiff and other public shareholders of the Company. Costa is a Rhode Island corporation headquartered in Lincoln, Rhode Island. The Individual Defendants are directors and officers of the Company. Costa is a premium sport sunglasses company that owns and manages the Costa and Native Eyewear brands. Essilor is a French corporation with its headquarters located in Charenton-le-Pont, France. Essilor produces ophthalmic lenses along with ophthalmic optical equipment. Merger Sub is a Rhode Island corporation wholly owned by Essilor that was created for the purposes of effectuating the Proposed Transaction. The Plaintiff is represented by: Barry J. Kusinitz, Esq. 155 South Main St., Suite 405 Providence, RI 02903 Telephone: (401) 831-4200 Facsimile: (401) 831-7053 E-mail: bkusinitz@bdglawyers.com - and - Shannon L. Hopkins, Esq. Sebastiano Tornatore, Esq. LEVI & KORSINSKY, LLP 733 Summer Street, Suite 304 Stamford, CT 06901 Telephone: (212) 363-7500 Facsimile: (866) 367-6510 E-mail: shopkins@zlk.com stornatore@zlk.com CROWN BOILER: Recalls Home Heating Boilers Due to CO Hazard ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Crown Boiler Company, of Philadelphia, announced a voluntary recall of about 2,200 Gas-fired hot water boilers. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The air pressure switch can fail to shut down the burners in the event that there is a blockage in the vent system allowing the boiler to emit excessive amounts of carbon monoxide, posing a CO poisoning hazard to the consumer. There were no incidents that were reported. The recall involves Crown Boiler CWD series cast iron hot water boilers that use natural gas or liquid petroleum to heat water in home baseboard, floor or radiator heating systems. The boilers are red and gray, about 37 inches tall, about 23 inches deep and range from about 16 to 42 inches wide. The Crown Boiler logo is on the front of the boiler. Recalled boilers have model numbers that begin with CWD and were manufactured between May 1, 2005 and July 1, 2013. The model number and the manufacturing date are located on a white rating label located on the upper right side of the boiler. The manufacturing date appears under "Series" in the MM/DD/YYYY or M/D/YYYY format or as a two-letter code. Recalled models have dates between 5/1/2005 and 7/1/2013 or one of the following two-letter codes: EB, FB, GB, HB, IB, JB, KB, LB AC, BC, CC, DC, EC, FC, GC, HC, IC, JC, KC, LC AD, BD, CD, DD, ED, FD, GD, HD, ID, JD, KD, LD AE, BE, CE, DE, EE, FE, GE, HE, IE, JE, KE, LE AF, BF, CF, DF, EF, FF, GF, HF, IF, JF, KF, LF AG, BG, CG, DG, EG, FG, GG, HG, IG, JG, KG, LG AH, BH, CH, DH, EH, FH, GH, HH, IH, JH, KH, LH AI, BI, CI, DI, EI, FI, GI, HI, II, JI, KI, LI AJ, BJ, CJ, DJ, EJ, FJ. Pictures of the recalled products are available at: http://is.gd/cAXlA8 The recalled products were manufactured in United States and sold at plumbing and heating wholesale distributors nationwide from May 2005 through July 2013 for between $4,000 and $6,700. Consumers with recalled boilers should immediately contact the installer or distributor from whom they purchased the boiler or Crown Boiler to schedule a free in-home repair. Consumers who continue using the boilers while awaiting repair, should have a working carbon monoxide alarm installed outside of sleeping areas in the home. DAIMLER TRUCKS: Recalls 2,783 Trucks Over Seat Belt Defect ---------------------------------------------------------- Starting date: November 27, 2013 Type of communication: Recall Subcategory: Truck - Med. & H.D. Notification type: Safety Mfr System: Seats and Restraints Units affected: 2783 Source of recall: Transport Canada Identification number: 2013427 TC ID number: 2013427 Manufacturer recall number: FL-654 On certain trucks, the seat belts may not comply with Canada Motor Vehicle Safety Standard 209 - Seat Belt Assemblies. Due to a defect in manufacturing, the seat belt buckle may not release as required by the standard. This could increase the risk of injury to the driver in a crash. Dealers will inspect and, if necessary, replace the seatbelt assemblies. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- FREIGHTLINER CASCADIA 2013 FREIGHTLINER CORONADO 2013 WESTERN STAR 4900 2013 FREIGHTLINER BUSINESS CLASS M2 2013 FREIGHTLINER ARGOSY 2013 WESTERN STAR 6900 2013 FREIGHTLINER 114SD 2013 WESTERN STAR 4700 2013 FREIGHTLINER 108SD 2013 FREIGHTLINER 122SD 2013 DRDGOLD LTD: Accused of Negligence by Former Mineworkers -------------------------------------------------------- DRDGOLD Ltd. was served with a court application for a class action issued in the South Gauteng High Court (Johannesburg, South Africa) by alleged former mineworkers claiming the company's negligence in its operation resulted in the former mineworkers contracting silicosis, according to the company's Oct. 25, 2013, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended June 30, 2013. As a result of the South African Constitutional Court decision permitting individuals employed as miners with occupational lung diseases to sue their current or former employers for damages outside the statutory compensation scheme, the company could be subject to claims against the company from previous or current employees, including a potential class action or similar group claim. In January 2013, DRDGOLD, ERPM and 23 other mining companies were served with a court application for a class action issued in the South Gauteng High Court by alleged former mineworkers and dependents of deceased mineworkers. In the pending application, the applicants allege that DRDGOLD, ERPM and other mining companies conducted underground mining operations in such a negligent manner that resulted in the former mineworkers contracting silicosis. The company will assess all such claims, if and when filed, on their merits. Liability associated with such claims and expenses of dealing with them could have a material adverse effect on the company's business, operating results and financial condition. EASTERN INSURANCE: Faces Suit Over Proposed ProAssurance Merger --------------------------------------------------------------- Rudy Rosenberg, Individually And On Behalf Of All Others Similarly Situated v. Michael Leonard Boguski, Robert Morris McAlaine, Paul Robert Burke, Ronald Lee King, Scott Carter Penwell, William Lloyd Snyder III, Charles Hall Vetterlein, III, Eastern Insurance Holdings, Inc., Case No. 5:13-cv-06355-MSG (E.D. Pa., October 31, 2013) alleges that the Defendants disseminated false and materially misleading preliminary proxy statement in connection with the proposed merger of Eastern and ProAssurance Corporation pursuant to the terms of an Agreement and Plan of Merger dated September 23, 2013. The Company's management and the directors have entrenched themselves in their lucrative positions with the Company post- Proposed Transaction, while agreeing to a deal that leaves the Company's public shareholders with only a fraction of the actual and true value of their investments in Eastern, the Plaintiff contends. Eastern, a Pennsylvania corporation, provides workers' compensation insurance and reinsurance products in the United States. The Company's Workers' Compensation Insurance segment offers workers' compensation products, including guaranteed cost policies, policyholder dividend policies, retrospectively-rated policies, deductible policies, and alternative market products to employers. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Michael J. Boni, Esq. Joshua D. Snyder, Esq. John E. Sindoni, Esq. BONI & ZACK LLC 15 St. Asaphs Road Bala Cynwyd, PA 19004 Telephone: (610) 822-0202 E-mail: mboni@bonizack.com jsnyder@bonizack.com jsindoni@bonizack.com - and - Kent Bronson, Esq. Gloria Kui Melwani, Esq. MILBERG LLP One Penn Plaza New York, NY 10119 Telephone: (212) 594-4300 Facsimile: (212) 504-8054 E-mail: kbronson@milberg.com gmelwani@milberg.com The Defendants are represented by: Patricia M. Hamill, Esq. CONRAD O'BRIEN PC 1500 Market St., Suite 3900 Centre Square West Tower Philadelphia, PA 19102-2100 Telephone: (215) 864-8071 Facsimile: (215) 864-9620 E-mail: phamill@cogr.com EBAY INC: $4.75 Million Settlement of Featured Plus Suit Approved ----------------------------------------------------------------- Writing for Courthouse News Service, William Dotinga reports that a federal judge signed off on a $4.75 million settlement agreement between eBay and disgruntled users of its ill-fated Featured Plus service. Auto accessories dealer and lead plaintiff Custom LED claimed in a 2012 lawsuit that it paid $39.95 for eBay's now-defunct Featured Plus service, which was supposed to bump the ads of subscribers to the top of the search page. The service was allegedly "completely nonfunctional" much of the time because of known bugs in the program. Despite these issues, eBay continued to both market Featured Plus and charge for the service even after the service had stopped working entirely, according to the complaint. Last year, U.S. District Judge Susan Illston dismissed Custom LED's common-law fraud claims, but moved the contract action forward. After a year of investigation and discovery, the parties entered into mediation and announced they had reached a $4.75 million settlement agreement in June. But in August, U.S. District Judge Jon Tigar found the proposed settlement deficient, citing an overly broad release of any claim relating to Featured Plus -- whether related to Custom LED's action or not -- and a lack of information within the planned notice to potential class members on the scope of the release. Tigar also questioned whether the default method of distributing the settlement -- eBay account credits -- would be fair to the entire class. After giving the parties 60 days to cure the deficiencies, the judge cleared the new agreement Wednesday, November 20, 2013. Under the settlement eBay will pay $4.75 million, which includes an enhancement award of $7,500 for Custom LED and about $1.2 million in attorneys' fees for class counsel and settlement- administration costs. The remaining $3.2 million will be distributed to Featured Plus in two subclasses, bifurcated by time period. "One-third of the fund will be allocated to the time period ranging from Jan. 23, 2008 to Sept. 28, 2009, and the remaining two-thirds will be allocated to the period ranging from Sept. 29, 2009 to Feb. 4, 2013," Tigar wrote. "The justification for this allocation is eBay's contention that Featured Plus worked exactly as described prior to Sept. 29, 2009 and that any alleged problems arose only after that date, when eBay made certain changes to the descriptions and functionality of Featured Plus. Specifically, eBay has evidence showing that Featured Plus listings were shown in 'Featured Items' sections for all searches in period 1, regardless of where the buyer originated the search or how the search results were organized. No such evidence exists with respect to the listings in period 2. As such, the class members' claims in period 1 are significantly weaker than those in period 2." Each class member will receive a percentage of the fees paid to eBay, relative to the total fees paid by the entire class. That total figure has been redacted but is in the millions for both time periods. The default method of paying out the settlement involves account credits for active eBay users. Though Tigar originally took exception with this scheme, since some may find their portion of the settlement eaten up by the user fees they currently ow eBay, affected users can opt out and receive a check instead or apply for a refund of those credits once received. "The court finds that the universal availability of the check option and the prominent display of information pertaining to that option is sufficient to ensure that certain segments of the class will not benefit more from the settlement than others," Tigar wrote. EBay also retains the right to dump the settlement agreement before final approval is given if more than 100 class members drop out to pursue their own claims. Tigar did extend the deadline for claims and exclusions to 120 days from the date of notice, rather than the 81 days called for in the agreement. He ordered eBay to begin the notice scheme within 30 days, and ordered plaintiffs to file for final approval within five months. A final fairness hearing is set for June 18, 2014. The Plaintiff is represented by: Keith R. Verges, Esq. Parker D. Young, Esq. Raymond Earl Walker, Esq. FIGARI & DAVENPORT, LLP 901 Main Street, Suite 3400 Dallas, TX 75202 Telephone: (214) 939-2000 Facsimile: (214) 939-2090 E-mail: kverges@figdav.com parker.young@figdav.com ray.walker@figdav.com - and - Shawn Tenzing Leuthold, Esq. LAW OFFICE OF SHAWN T. LEUTHOLD 1671 The Alameda, Suite 303 San Jose, CA 95126 Telephone: (408) 924-0132 Facsimile: (408) 924-0134 E-mail: leuthold@aol.com The Defendants are represented by: Benjamin F. Chapman, Esq. COOLEY GODWARD 4401 Eastgate Mall San Diego, CA 92121-1909 Telephone: (858) 550-6000 Facsimile: (858) 550-6420 E-mail: bchapman@cooley.com - and - James M. Penning, Esq. COOLEY GODWARD KRONISH LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306-2155 Telephone: (650) 843-5000 Facsimile: (650) 857-0663 E-mail: jpenning@cooley.com - and - Whitty Somvichian, Esq. COOLEY LLP 101 California Street, 5th Floor San Francisco, CA 94111 Telephone: (415) 693-2061 Facsimile: (415) 693-2222 E-mail: wsomvichian@cooley.com The case is Custom LED, LLC v. eBay, Inc., et al., Case No. 3:12- cv-00350-JST, in the U.S. District Court for the Northern District of California (San Francisco). ENTEGRA COACH: Recalls 6 Motorhomes Due to Air Brake Gauge Defect ----------------------------------------------------------------- Starting date: December 3, 2013 Type of communication: Recall Subcategory: Motorhome Notification type: Safety Mfr System: Brakes Units affected: 6 Source of recall: Transport Canada Identification number: 2013430 TC ID number: 2013430 On certain vehicles equipped with a four-in-one air gauge, the air brake system pressure gauge may display an inaccurate pressure reading. This could cause the service brake air pressure to be lower than anticipated, causing a reduction in braking force and an unexpected application of emergency spring brakes, which could increase the risk of a crash causing injury and/or damage to property. Dealers will replace the air gauge. Affected products: Maker Model Model year(s) affected ----- ----- ---------------------- ENTEGRA ANTHEM 2010, 2011 ENTEGRA ASPIRE 2012 FORD MOTOR: Recalls 56 Units of 2013 Fiesta Cars in Canada ---------------------------------------------------------- Starting date: November 27, 2013 Type of communication: Recall Subcategory: Car Notification type: Compliance Mfr System: Label Units affected: 56 Source of recall: Transport Canada Identification number: 2013426 TC ID number: 2013426 Manufacturer recall number: 13C08 Certain vehicles may not comply with the requirements of Canada Motor Vehicle Safety Standard 110 - Tire Selection and Rims. The Tire and Loading Information Label may contain incorrect tire size and inflation pressure information. Incorrect inflation pressure and/or use of replacement tires of an incorrect size and load rating may result in tire damage and could adversely affect vehicle handling, increasing the risk of a crash causing injury and/or damage to property. Dealers will inspect the Tire and Loading Information Label and install a revised label if necessary Affected products: 2013 FORD FIESTA model FUSION-IO INC: Issued False Positive Revenue Guidance, Suit Says ---------------------------------------------------------------- Miami Police Relief & Pension Fund, on behalf of itself and all others similarly situated v. Fusion-io, Inc., David A. Flynn, Shane V. Robison, and Dennis P. Wolf, Case No. Case No. 5:13-cv- 05368-LHK (N.D. Cal., November 19, 2013) is a federal securities class action brought on behalf of purchasers of Fusion-io's publicly traded common stock between August 10, 2012, and October 23, 2013, inclusive. During the Class Period, the Defendants misrepresented to investors that the Company was a market leader in large-scale flash memory applications and was not facing any competitive pressure or risk from the commoditization of flash memory products, the Plaintiff alleges. The Plaintiff adds that the Defendants also issued unrealistically positive revenue guidance and misrepresented that the Company was able to anticipate the demand from its strategic customers based on its years of experience as their flash memory supplier. As a result of these misrepresentations, Fusion-io stock traded at artificially inflated prices during the Class Period, the Plaintiff continues. Fusion-io, a Delaware corporation, was founded in 2005 as Canvas Technologies, Inc. Fusion-io is a computer hardware and software systems company that designs and manufactures products using flash memory technology. The Plaintiff is represented by: Blair A. Nicholas, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: (858) 793-0070 Facsimile: (858) 793-0323 E-mail: blairn@blbglaw.com - and - Gerald H. Silk, Esq. Avi Josefson, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1285 Avenue of the Americas, 38th Floor New York, NY 10019 Telephone: (212) 554-1400 Facsimile: (212) 554-1444 E-mail: jerry@blbglaw.com avi@blbglaw.com - and - Robert D. Klausner KLAUSNER, KAUFMAN, JENSEN & LEVINSON 10059 Northwest 1st Court Plantation, FL 33324 Telephone: (954) 916-1202 Facsimile: (954) 916-1232 E-mail: bob@robertdklausner.com The Defendants are represented by: Boris Feldman, Esq. Douglas John Clark, Esq. Ignacio Evaristo Salceda, Esq. WILSON SONSINI GOODRICH & ROSATI 650 Page Mill Road Palo Alto, CA 94304-1050 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 E-mail: ncarvalho@wsgr.com dclark@wsgr.com isalceda@wsgr.com H&R BLOCK: "Dreyling" Tax Suit Transferred to W.D. Missouri ----------------------------------------------------------- The class action lawsuit styled Maighan O. Perry Dreyling, Richard M. Dreyling, III, and Tanya M. Baez, on behalf of themselves and all others similarly situated, Case No. 3:13-cv-02011 (N.D. Cal., May 1, 2013) was transferred to the U.S. District Court for the Western District of Missouri on October 31, 2013. The lawsuit is now captioned Dreyling, et al. v. H&R Block, Inc., et al., Case No. 4:13-cv-01065-FJG. The lawsuit is brought on behalf of all individuals, who had U.S. federal income tax returns, including Forms 8863 for the year 2012, prepared for them by the Defendants, which were filed before February 22, 2013. The Plaintiffs argues that the Forms 8863 in H&R Block's tax software continued to permit certain lines to be left blank, which has resulted in the delay of thousands of refunds. The Plaintiffs are represented by: Jonathan Herschel Bornstein, Esq. BORNSTEIN & BORNSTEIN 507 Polk Street, Suite 410 San Francisco, CA 94102 Telephone: (415) 409-7611 Facsimile: (415) 409-9345 E-mail: jonathan@bornsteinandbornstein.com - and - Sherrie R. Savett, Esq. Eric Lechtzin, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 Facsimile: (215) 875-4636 E-mail: ssavett@bm.net elechtzin@bm.net - and - Mark J. Geragos, Esq. GERAGOS & GERAGOS , APC 644 S. Figueroa Street, 39th Floor Los Angeles, CA 90071-3480 Telephone: (213) 625-3900 Facsimile: (213) 625-1600 E-mail: geragos@geragos.com The Defendants are represented by: Lin W. Kahn, Esq. JONES DAY 555 California Street, 26th Floor San Francisco, CA 94104 Telephone: (415) 626-3939 Facsimile: (415) 875-5700 E-mail: linkahn@jonesday.com - and - Kevin D. Boyce, Esq. JONES DAY 901 Lakeside Avenue Cleveland, OH 44114-1190 Telephone: (216) 586-3939 E-mail: kdboyce@jonesday.com HALLIBURTON CO: Securities Class Action Ruling Hits Businesses -------------------------------------------------------------- Business Insurance reports that companies should be happy to hear the U.S. Supreme Court has decided to hear a major securities class action case. Now, they can only hope the high court's ruling goes their way. At issue in Halliburton Co. and David Lesar v. Eric P. John Fund Inc. FKA Archdiocese of Milwaukee Supporting Fund Inc. is a controversial 1988 ruling by a divided Supreme Court in Basic Inc. et al. v. Max L. Levinson et al. In that 1988 case, the nation's highest court endorsed the "fraud- on-the-market presumption theory," which basically says that because of the capital market's efficiency, it is not necessary for plaintiffs in class actions to prove individually that they were affected by misrepresentations by the company. The results of that decision, as pointed out in an amicus brief by former U.S. Securities and Exchange Commission members and academics, have been horrific for businesses and led to the creation of a "massive multibillion-dollar industry" for the plaintiffs' bar. Adding insult to injury in the 25-year-old ruling, the fraud-on- the market theory has since been "subjected to withering scholarly and empirical attack" and largely discredited, according to Halliburton's petition asking the Supreme Court to review its case against the Milwaukee archdiocese. Legal experts say they are confident based on another recent ruling that four Supreme Court justices -- Antonin Scalia, Samuel Alito, Clarence Thomas and Anthony Kennedy -- will vote to at least modify, if not entirely discard, the fraud-on-the market presumption theory. Assuming Chief Justice John Roberts goes along, this could lead to a welcome reduction in directors and officers liability rates for companies. Of course, the creativity of the plaintiffs' bar should not be underestimated. It is likely those lawyers would find some way to work around a Supreme Court ruling tossing out the fraud-on-the- market theory. Furthermore, institutional investors may feel obligated to continue to pursue such litigation individually. Nevertheless, the theory in question remains law for now. And as Halliburton states in its petition to the Supreme Court, "The Basic majority erred by substituting economic theory for law -- and bad economic theory at that." It is high time the Supreme Court corrects that mistake. HARMONY GOLD: Opposes Silicosis Suit by Former Workers ------------------------------------------------------ Harmony Gold Mining Company Limited served and filed its notice of intention to oppose the application of three former employees who are requesting the South Gauteng High Court to be part of a class action for silicosis sufferers, according to the company's Oct. 25, 2013, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended June 30, 2013. On August 23, 2012, Harmony and all its subsidiaries were served with court papers entailing an application by three of its former employees requesting that the South Gauteng High Court certify a class action. In essence, the applicants want the court to declare them as representing a class of people for the purposes of instituting an action for relief and to obtain directions as to what procedure to follow in pursuing the relief required against Harmony. Harmony has subsequently retained legal counsel in this regard and on September 5, 2012, Harmony served and filed its notice of intention to oppose the application as it is of the view that the applicants cannot form part of a class as, according to their own averments, they worked at different operations. At this stage and in the absence of a Court decision on this matter, it is uncertain as to whether the Company will incur any costs related to silicosis claims in the near future. Due to the limited information available on any claims and potential claims, and the uncertainty of the outcome of these claims, no estimation can be made for the possible obligation. HARMONY GOLD: Consolidation of Two Suits Over Silicosis Planned --------------------------------------------------------------- The consolidation of two applications to certify class actions on behalf of Harmony Gold Mining Company Limited mine workers who allegedly contracted silicosis and/or other occupational lung diseases is being planned, according to the company's Oct. 25, 2013, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended June 30, 2013. On January 8, 2013, Harmony and its subsidiaries, alongside other mining companies operating in South Africa (collectively the respondents), were served with another application to certify a class on behalf of classes of mine workers, former mine workers and their dependents who were previously employed by, or who are currently employed by, the respondents, who allegedly contracted silicosis and/or other occupational lung diseases. Harmony has filed notices of its intention to oppose both applications and has instructed its attorneys to defend the claims. Following the receipt of this application, Harmony was advised that there was a potential overlap between the application of August 23, 2012 and the application of January 8, 2013. After deliberation between the respondents' attorneys and the applicants' attorneys, it was resolved that the applicants' attorneys will consolidate the two applications and serve an amended application which will be considered by the respondents. The respondents are awaiting a consolidated application of the two separate applications served. At this stage, and in the absence of a court decision on this matter it is uncertain as to whether the company will incur any costs related to silicosis claims in the near future. Due to the limited information available on any claims and potential claims and the uncertainty of the outcome of these claims, no estimation can be made for the possible obligation. HARMONY GOLD: Settlement of ADR Holders' Lawsuit Faces Appeal ------------------------------------------------------------- A member of a class in a suit filed on behalf of ADR and ADR Option holders of Harmony Gold Mining Company Limited is asking the United Stated Supreme Court to review the approval of the settlement of the suit, according to the company's Oct. 25, 2013, Form 20-F filing with the U.S. Securities and Exchange Commission for the year ended June 30, 2013. The Company reached a mutually acceptable settlement with the class plaintiffs during fiscal 2012 in a pending class action in the United States District Court for the Southern District of New York in which certain ADR and ADR Option holders are seeking damages against the company pertaining to the company's business practices for the period April 25, 2007 to August 7, 2007. The settlement was approved by the Court in November 2011 but a single class member filed an appeal of the Court's order approving the settlement. That appeal resulted in the United States Court of Appeals for the Second Circuit affirming the decision of the District Court. The objecting plaintiff has asked the United Stated Supreme Court to review the case and this is pending. The settlement amount has been paid into escrow by the company's insurers and will be distributed to the plaintiffs once the appeal has been finalized. HERTZ GLOBAL: Private Equity Holders Dump $7BB in Stock, Suit Says ------------------------------------------------------------------ Pedro Ramirez, Jr., Individually and on Behalf Himself and All Others Similarly Situated v. Hertz Global Holdings, Inc., Mark P. Frissora and Elyse Douglas, Case No. 2:13-cv-07050-SRC-CLW (D.N.J., November 20, 2013) is a federal securities class action on behalf of purchasers of the common stock of Hertz between February 25, 2013, and November 4, 2013, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. The Plaintiff alleges that the Defendants' fraudulent scheme and course of business that operated as a fraud or deceit on purchasers of Hertz common stock was a success, as it: (i) deceived the investing public regarding Hertz's prospects and business; (ii) artificially inflated the price of Hertz common stock; (iii) enabled Defendant Elyse Douglas to sell more than $3.6 million of her personally-held Hertz common stock, and Hertz's former private equity owners to sell another $4.44 billion of their Hertz stock -- (cashing them out completely) to the unsuspecting public; and (iv) caused the Plaintiff and other members of the Class to purchase Hertz common stock at artificially inflated prices. Hertz, through its subsidiaries, engages in the car and equipment rental businesses worldwide. Headquartered in Park Ridge, New Jersey, Hertz is one of the nation's largest automobile and equipment rental companies. Mark P. Frissora is, and was throughout the Class Period, the Chief Executive Officer, a director of Hertz and Chairman of its Board of Directors. Elyse Douglas served as Senior Executive Vice President and Chief Financial Officer of Hertz from the beginning of the Class Period through and including October 1, 2013, when she resigned. The Plaintiff is represented by: Peter S. Pearlman, Esq. COHN LIFLAND PEARLMAN HERRMANN & KNOPF LLP Park 80 West-Plaza One 250 Pehle Avenue, Suite 401 Saddle Brook, NJ 07663 Telephone: (201) 845-9600 Facsimile: (201) 845-9423 E-mail: psp@njlawfirm.com - and - Samuel H. Rudman, Esq. Mary K. Blasy, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 Facsimile: (631) 367-1173 E-mail: SRudman@rgrdlaw.com mblasy@rgrdlaw.com - and - Jeffrey Abraham, Esq. ABRAHAM FRUCHTER & TWERSKY, LLP One Penn Plaza, Suite 2805 New York, NY 10119 Telephone: (212) 279-5050 Facsimile: (212) 279-3655 E-mail: jabraham@aftlaw.com IGNITE RESTAURANT: "Moreno" Suit Removed to N.D. California ----------------------------------------------------------- Juan Carlos Arana Moreno, Julian Cassanova Poot, Liborio Chan, Luis Alberto Colli Perera, Edgar Diaz, Jose Mencia, Raul Enrique Misek, Samir Roque, and Juan Antonio Saldivar, individually and on behalf of others similarly aggrieved employees v. Ignite Restaurant Group, Inc. dba Joe's Crab Shack and Crab Addison, Inc., dba Joe's Crab Shack; and Does 1 to 20, Case No. CGC13- 533623 (Cal. Super. Ct., San Francisco Cty., August 19, 2013) alleges that the Defendants failed to, among other things, provide meal and rest periods, and compensate the Plaintiffs for all hours worked. The Defendants removed the lawsuit on October 31, 2013, from the Superior Court of the state of California, County of San Francisco, to the United States District Court for the Northern District of California. The Company argues that the removal is proper because putative class exceeds 100 members and diversity of citizenship exists. The District Court Clerk assigned Case No. 3:13-cv-05091-SI to the proceeding. The Plaintiffs are represented by: Edris Wilder Izar Rodriguez, Esq. Karen C. Carreta, Esq. VILLEGAS CARRERA LLP 170 Columbus Avenue, Suite 300 San Francisco, CA 94133 Telephone: (415) 989-8000 E-mail: edris@e-licenciados.com The Defendants are represented by: Ted Allan Gehring, Esq. Michael Stuart Kun, Esq. EPSTEIN BECKER GREEN, P.C. 1925 Century Park East, Suite 500 Los Angeles, CA 90067-2506 Telephone: (310) 556-8861 Facsimile: (310) 553-2165 E-mail: tgehring@ebglaw.com mkun@ebglaw.com KAISER PERMANENTE: Faces Class Action Over HIV Screening -------------------------------------------------------- Aimee Green, writing for The Oregonian, reports that two Portland area residents are suing Kaiser Permanente for screening them for HIV -- along with about 6,500 other Northwest members -- without seeking their permission. The plaintiffs -- identified in a federal lawsuit as Barbara Kelley of Multnomah County and William Pearse of Clackamas County -- are asking a judge to approve the suit as a class action suit that could seek $6.5 million or more from Kaiser for the apparent misstep. Oregon law requires Kaiser to inform patients that they are about to be tested for the virus that causes AIDS and give patients the option of declining the testing. But from April 11 to May 5, Kaiser tested Oregon and Washington members who were ages 50 to 65, but it "did not communicate this new protocol" to them, according to the suit. The suit was filed in U.S. District Court in Oregon on Nov. 27. It claims invasion of privacy, unlawful trade practices and fraud. The suit asks for $1,000 in damages each for Kelley and Pearse, plus millions more if others who were tested are allowed to join the litigation. Kaiser performed the tests as the first phase in a plan to test all members, ages 15 to 65, for the virus. Kaiser's chief medical officer, Dr. Tom Hickey, said in a statement emailed on Nov. 29 that his organization has taken steps to ensure that members are given the opportunity to opt out of future testing. "We deeply regret that this lack of communication may have caused unnecessary concern for our members," Dr. Hickey said in the statement. ". . . Kaiser Permanente is committed to continuing its efforts to remain a national leader in HIV/AIDS care and early detection. HIV remains an epidemic in the United States, with 56,000 people infected each year." Attorneys for Ms. Kelley and Mr. Pearse also couldn't be reached for comment or declined comment on Nov. 29. Last year, Oregon lawmakers lessened the consent requirements for HIV tests, deciding that notifying patients in writing only -- rather than verbally, too -- was sufficient. The law also requires that patients be given the option of opting out of the test. Critics say written notification and the option of declining tests can easily be buried in fine print -- leaving patients in the dark. Federal health officials recommended in April that virtually all adults be tested for HIV, as long as they're given a chance to decline the tests. The U.S. Preventive Services Task Force had previously recommended testing only for high-risk individuals, such as gay men who had unprotected sex or intravenous drug users. L&F INTERNATIONAL: Recalls 1,000 Mattresses Due to Fire Hazard -------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with L&F International Trade, of Beltsville, Md., announced a voluntary recall of about 1,000 Mattresses and mattresses with foundations. Consumers should stop using this product unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The mattresses fail to meet the mandatory federal open flame standard for mattresses, posing a fire hazard to consumers. There were no incidents that were reported. The recall involves L&F International Trade's renovated (rebuilt) twin, full, queen and king-size mattresses and mattresses with foundations. The used mattresses were stripped to the springs and rebuilt by L&F International Trade. They have an ivory knit fabric cover with a botanical pattern. The recalled mattresses have a yellow tag with "L&F International Trade Inc., 10726A Tucker St., Beltsville, MD 20705" printed on them. Pictures of the recalled products are available at: http://is.gd/mJHE7j The recalled products were manufactured in United States and sold at Best Buy Furniture, Takoma Park, Md.; Capital Discount, Washington, D.C.; Carolina Furniture, Hyattsville, Md.; Easy Buy Furniture, Washington, D.C. and Value Furniture, Bladensburg, Md. from November 2011 through July 2012 for about $100. Consumer should immediately contact L&F International Trade and arrange to have the recalled mattress sets returned and have a compliant rebuilt mattress or mattress set delivered free of charge. LAND ROVER: Recalls 322 Range Rover SUVs Over Airbag Defect ----------------------------------------------------------- Starting date: November 29, 2013 Type of communication: Recall Subcategory: SUV Notification type: Safety Mfr System: Airbag Units affected: 322 Source of recall: Transport Canada Identification number: 2013428 TC ID number: 2013428 Manufacturer recall number: P037 Affected products: 2013 Land Rover Range Rover On certain vehicles, airbag wiring connectors located in the front seats may become disconnected, illuminating the airbag warning light. If the airbag light illuminates, the seat side airbags may not deploy in the event of a crash, which could increase the risk of injury. Dealers will increase the clearance around the connectors. LION BUS: Recalls 17 Trucks Due to Defective Seat Belt ------------------------------------------------------ Starting date: December 2, 2013 Type of communication: Recall Subcategory: Truck - Med. & H.D. Notification type: Safety Mfr System: Seats and Restraints Units affected: 17 Source of recall: Transport Canada Identification number: 2013429 TC ID number: 2013429 On certain buses, the driver's seat belt may not comply with Canada Motor Vehicle Safety Standard 209 - Seat Belt Assemblies. Due to a defect in manufacturing, the seat belt buckle may not release as required by the standard. This could increase the risk of injury to the driver in a crash. Dealers will inspect and, if necessary, replace the seatbelt assemblies. Affected products: 2013 LION 360 model LITHIA MOTORS: Settlement of Consumer Claims to Cost $3.8MM ----------------------------------------------------------- Lithia Motors, Inc. expects to pay $3.8 million to settle all a suit alleging violations of the Consumer Protection Act of Alaska, according to the company's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In December 2006, a suit was filed against the company (Jackie Neese, et al vs. Lithia Chrysler Jeep of Anchorage, Inc, et al, Case No. 3AN-06-13341 CI), and in April, 2007, a second case (Jackie Neese, et al vs. Lithia Chrysler Jeep of Anchorage, Inc, et al, Case No. 3AN-06-4815 CI) was filed against the company's in the Superior Court for the State of Alaska, Third Judicial District at Anchorage. These suits were subsequently consolidated. In the suits, plaintiffs alleged that the company, through the company's Alaska dealerships, engaged in three practices that purportedly violate Alaska consumer protection laws: (i) charging customers dealer fees and costs (including document preparation fees) not disclosed in the advertised price, (ii) failing to disclose the acquisition, mechanical and accident history of used vehicles or whether the vehicles were originally manufactured for sale in a foreign country, and (iii) engaging in deception, misrepresentation and fraud by providing to customers financing from third parties without disclosing that the company receive a fee or discount for placing that loan. The suit sought statutory damages of $500 for each violation or three times plaintiff's actual damages, whichever was greater, and attorney fees and costs. In June 2013 the parties agreed to mediate the claims. The mediation resulted in a settlement agreement with the plaintiffs under which the company estimates it will pay $3.8 million to settle all claims against the company and to pay plaintiffs' legal fees. The estimated payment assumes a participation rate by eligible class members based on historically experienced claim rates. An increased claim rate would result in additional payments. The estimated settlement amount was recorded as a component of selling, general and administrative expense in the company's Consolidated Statements of Operations and, as of September 30, 2013, was included as a component of accrued liabilities in the company's Consolidated Balance Sheets. The settlement is subject to court approval and the company cannot assure that the court will approve the settlement. LUXURY LINK: Accused of Defrauding Vacation Booking Customers ------------------------------------------------------------- Jeffrey R. Krinsk initiated a class action lawsuit in the Superior Court of California for San Diego County against Luxury Link LLC. The Plaintiff alleges that the Company defrauded customers in a vacation booking scheme. The case is Jeffrey R. Krinsk v. Luxury Link LLC, Case No. 37- 2013-00076426-CU-BT-CTL, in the Superior Court of California, County of San Diego. METROCORP BANCSHARES: Being Sold for Too Little, Suit Claims ------------------------------------------------------------ Hsin-Hui Kuo, Individually and on Behalf of All Others Similarly Situated v. MetroCorp Bancshares, Inc., George M. Lee, Don J. Wang, Y. Ping Sun, Helen F. Chen, May P. Chu, Shirley Liu Clayton, John Lee, Charles L. Roff, David Tai, Joe Ting, Robert W. Hsueh, Krishnan Balasubramanian, Daniel B. Wright, And East West Bancorp, Inc., Case No. 4:13-cv-03198 (S.D. Tex., October 31, 2013) arises from an announcement that MetroCorp and East West entered into a definitive Agreement and Plan of Merger under which East West will acquire all outstanding shares of stock of MetroCorp. Both the value to MetroCorp stockholders contemplated in the Proposed Transaction and the process by which the Defendants propose to consummate the Proposed Transaction are fundamentally unfair to the Plaintiff and all other public stockholders of the Company, according to the complaint. MetroCorp is a Texas corporation headquartered in Houston. MetroCorp is a bank holding company. MetroBank, N.A. and Metro United Bank, as wholly owned subsidiaries of MetroCorp, offer personalized banking services to the communities in the Houston, Dallas, San Diego, Los Angeles, and San Francisco metropolitan areas. The Individual Defendants are directors and officers of the Company. East West is a Delaware corporation headquartered in Pasadena, California. East West is a bank holding company. East West offers a range of personal and commercial banking services to small and medium-sized businesses and individuals through its subsidiary East West Bank. The Plaintiff is represented by: Thomas E. Bilek, Esq. THE BILEK LAW FIRM, L.L.P. 700 Louisiana, Suite 3950 Houston, TX 77002 Telephone: (713) 227-7720 Facsimile: (713) 227-9404 E-mail: tbilek@bileklaw.com - and - Juan E. Monteverde, Esq. FARUQI & FARUQI, LLP 369 Lexington Avenue, 10th Floor New York, NY 10017 Telephone: (212) 983-9330 Facsimile: (212) 983-9331 E-mail: jmonteverde@faruqilaw.com MOBILE COUNTY, AL: Sued Over Killing of Pet Cat at Animal Shelter ----------------------------------------------------------------- Courthouse News Service reports that Mobile County claims it holds stray animals at the Mobile County Animal Shelter for five days before killing them, but it killed a woman's lost kitten, Pork Chop, less than an hour after arrival, she claims in a class action in Mobile County Court. NATIONAL HOCKEY: Players' Class Action Faces Uphill Battle ---------------------------------------------------------- Adrian Dater, writing for The Denver Post, reports that the class- action lawsuit against the NHL, filed in a Washington court by 10 former players (one of whom, Rick Vaive, has already dropped out), faces more of an uphill battle than the lawsuits that resulted in former NFL players getting a huge settlement. Some of the optics of the suit were just plain awkward, such as the sentence: "When coupled with the NHL's refusal to protect players by banning full-body checking or penalizing on-ice fistfights, the league has created a dangerous atmosphere for players." Wait. So, the NHL should have banned full-body checking? No hitting of anybody? Might as well just pack the equipment bags and turn out the lights, because hockey equals hitting. Plus, the league has done a lot to make fighting harder, starting with the instigator rule in 1992 and, this year, the implementation of visors for every player coming into the league. The one group of players who might have a case against the NHL are the fighters, who were often told to just go back out on the ice, no matter how beaten up they were. But the fighters of the league are the ones with the most pride, so don't expect to see many join the lawsuit. Case in point: ex-Avs enforcer Scott Parker, who refuses to join the suit, despite probable cause stemming from coaches who had little regard for his condition. The NFL got in trouble because it tried to hide the medical science, a sin akin to tobacco companies that said nicotine wasn't addictive, though they knew it was. That's why the NFL was forced to settle. The NHL is the league that first adopted a baseline concussion test, in 1997. Hence, beating the NHL in court won't be as easy. NETFLIX INC: Calif. Court Dismisses Amended Securities Complaint ---------------------------------------------------------------- The United States District Court for the Northern District of California dismissed with prejudice the first amended consolidated complaint in In re Netflix, Inc., Securities Litigation, Case No. 3:12-cv-00225-SC, according to the company's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On January 13, 2012, the first of three purported shareholder class action lawsuits was filed in the United States District Court for the Northern District of California against the Company and certain of its officers and directors. Two additional purported shareholder class action lawsuits were filed in the same court on January 27, 2012 and February 29, 2012 alleging substantially similar claims. These lawsuits were consolidated into In re Netflix, Inc., Securities Litigation, Case No. 3:12-cv- 00225-SC, and the Court selected lead plaintiffs. Lead plaintiffs filed a consolidated complaint which alleged violations of the federal securities laws on June 26, 2012. The Court dismissed the consolidated complaint with leave to amend on February 13, 2013. Lead plaintiffs filed a first amended consolidated complaint on March 22, 2013. The Court dismissed the first amended consolidated complaint with prejudice on August 20, 2013, and judgment was entered on September 27, 2013. NIPPON YUSEN: "Stasik" Antitrust Suit Transferred to New Jersey --------------------------------------------------------------- The class action lawsuit captioned Stasik v. Nippon Yusen Kabushiki Kaisha, Ltd. et al., Case No. 3:13-cv-01467, was transferred from the U.S. District Court for the Southern District of California to the U.S. District Court for the District of New Jersey. The lawsuit is now captioned Stasik v. Nippon Yusen Kabushiki Kaisha, Ltd. et al., Case No. 2:13-cv-06591-ES-JAD. Ross Stasik's and other related antitrust class actions have been filed against companies that provide Vehicle Carrier Services to original equipment manufacturers for the purpose of shipping cars, trucks, or other four-wheeled vehicles across international waterways. Vehicle Carrier Service refers to the business of providing ocean transportation of vehicles -- like cars, trucks, or other four wheeled vehicles -- by use of large Vehicle Carriers known as Roll On/Roll Off vessels, or RoRos. The Plaintiff is represented by: Betsy Carol Manifold, Esq. WOLF HALDENSTEIN ADLER FREEMAN AND HERZ 750 B Street Symphony Towers, Suite 2770 San Diego, CA 92101-5050 Telephone: (619) 239-4599 E-mail: manifold@whafh.com - and - Randall S. Newman, Esq. RANDALL S. NEWMAN PC 37 Wall Street, Penthouse D New York, NY 10005 Telephone: (212) 797-3737 Facsimile: (212) 797-3172 E-mail: rsn@randallnewman.net PACER INTERNATIONAL: Removes "Ruelas" Labor Suit to S.D. Cal. ------------------------------------------------------------- Pacer International, Inc. removed a case filed by an independent contractor driver for Pacer Cartage to the Federal District Court for the Southern District of California, according to the company's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On August 20, 2013 the company was served with a complaint styled Manuela Ruelas Mendoza v. Pacer Cartage, California Superior Court, San Diego, Case No. 37-2013-00063453CU-OE-CTL. Ruelas, an independent contractor driver for Pacer Cartage, alleges that she should be considered an employee under the California Labor Code, and seeks pay for meal breaks, rest breaks and overtime, and alleges certain violations of the California Labor Code. Ruelas seeks to maintain the action as a class action on behalf of similarly situated Pacer Cartage contractors. This lawsuit is in the preliminary stages, and no discovery has been conducted. The information available to the Company at September 30, 2013 does not indicate that it is probable that a liability had been incurred, and the Company could not reasonably estimate the amount, or range of amounts, of any liability that would be incurred if these claims were resolved against it. The company has removed the case to Federal District Court for the Southern District of California. The company believes this action is without merit, and it intends to vigorously defend certification of the class as well as the merits of the claims should the class be certified. PANERA BREAD: Pays $3.7MM Portion of Labor Lawsuit Settlement ------------------------------------------------------------- Panera Bread Company paid the labor suit settlement amount of $3.7 million during the 13 weeks ended June 25, 2013, according to the company's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 24, 2013. On December 9, 2009, a purported class action lawsuit was filed against Panera Bread Company and one of its subsidiaries by Nick Sotoudeh, a former employee of a subsidiary of the Company. The lawsuit was filed in the California Superior Court, County of Contra Costa. On April 22, 2011, the complaint was amended to add another former employee, Gabriela Brizuela, as a plaintiff. The complaint alleged, among other things, violations of the California Labor Code, failure to pay overtime, failure to provide meal and rest periods and termination compensation and violations of California's Business and Professions Code. The complaint sought, among other relief, class certification of the lawsuit, unspecified damages, costs and expenses, including attorneys' fees, and such other relief as the Court determines to be appropriate. On November 17, 2011, the parties entered into a Memorandum of Agreement regarding settlement of this purported class action lawsuit and the purported class action lawsuit filed by David Carter. Under the terms of the Memorandum of Agreement, the parties agreed to settle this matter for a maximum aggregate amount of $5.0 million for settlement payments to purported class members, plaintiff's attorneys' fees, and costs of administering the settlement. The Memorandum of Agreement contains no admission of wrongdoing. The terms and conditions of the settlement were preliminarily approved by the Court on June 8, 2012. On December 21, 2012, the Court approved the terms and conditions of the settlement and the settlement payment amounts, and on February 5, 2013, the Court approved plaintiffs' attorneys' fees and costs. The Company maintained a reserve of $3.7 million in accrued expenses in the Company's Consolidated Balance Sheet as of December 25, 2012 and paid the settlement amount of $3.7 million during the thirteen weeks ended June 25, 2013. PANERA BREAD: Settlement Reached in Suit by Unit's Ex-Employee -------------------------------------------------------------- A settlement was reached in a suit filed by a former employee of a subsidiary of Panera Bread Company, and Nikole Benavides, a purported former employee of one of the Company's franchisees, according to the company's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended September 24, 2013. On July 22, 2011, a purported class action lawsuit was filed against Panera Bread Company and one of its subsidiaries by David Carter, a former employee of a subsidiary of Panera Bread Company, and Nikole Benavides, a purported former employee of one of the Company's franchisees. The lawsuit was filed in the California Superior Court, County of San Bernardino. The complaint alleged, among other things, violations of the California Labor Code, failure to pay overtime, failure to provide meal and rest periods and termination compensation and violations of California's Business and Professions Code. The complaint sought, among other relief, collective and class certification of the lawsuit, unspecified damages, costs and expenses, including attorneys' fees, and such other relief as the Court determines to be appropriate. This matter, as it relates to the subsidiary, was consolidated with the lawsuit described in the immediately preceding paragraph and was resolved under the Memorandum of Agreement. PEOPLES TRUST: Class Suit Launched in B.C. Over Privacy Breach -------------------------------------------------------------- The law firms of Sutts, Strosberg LLP, Charney Lawyers and Branch MacMaster LLP announced on November 19, 2013, that they launched a national class action against Peoples Trust Company. The lawsuit seeks damages arising from a privacy breach in which confidential personal information stored in an online application database was compromised by cybercriminals located in the People's Republic of China. Peoples Trust is a Canadian, wholly-owned trust company regulated by the Trust and Loan Companies Act and supervised by the Office of the Superintendent of Financial Institutions (OSFI). On October 25, 2013, Peoples Trust sent about 12,000 to 13,000 letters to affected parties to notify them that a database containing their personal information had been accessed by unauthorized individuals in China. The personal information in that database included names, addresses, telephone numbers, e-mail addresses, dates of birth and social insurance numbers. Peoples Trust discovered the breach when its customers complained of "phishing" attempts -- text messages from an individual falsely claiming to represent Peoples Trust and asking the message recipient to provide their account details. "The failure of companies to protect their customers' sensitive personal information is a serious issue in the digital age. Through this class action, the plaintiff seeks to hold Peoples Trust accountable," said Harvey T. Strosberg, Q.C. of Sutts, Strosberg LLP. "We are shocked that Peoples Trust did not have sophisticated security measures in place to keep their customers' sensitive personal information safe. After all, Peoples Trust is essentially a bank," said Ted Charney. The national class action was commenced today on behalf of all people whose personal information was compromised and claims $13 million in compensation. Harvey Strosberg, Q.C., has been recognized as one of the foremost class action litigators in Canada. Ted Charney is a well-known Toronto litigation lawyer with extensive experience in litigating class action lawsuits. Ward Branch is considered one of Canada's top "Bet the Company" class action litigators. Anyone who received the October 25, 2013 notice letter from Peoples Trust or whose personal information contained in the online application database was compromised is encouraged to register at: http://www.peoplestrustprivacyclassaction.com/ For more information, please contact: David Robins, Esq. SUTTS, STROSBERG LLP 600-251 Goyeau, Windsor ON N9A 6V2, Canada Telephone: (519) 561-6211 E-mail: drobins@strosbergco.com - and - Theodore Charney, Esq. CHARNEY LAWYERS 151 Bloor Street West, Suite 890 Toronto, Ontario M5S 1P4 Telephone: (416) 964-7950 Facsimile: (416) 929-7416 E-mail: tedc@charneylawyers.com - and - Ward Branch, Esq. BRANCH MACMASTER LLP 1410 - 777 Hornby Street Vancouver, B.C. V6Z 1S4 Telephone: (604) 654-2966 E-mail: wbranch@branmac.com PHILIPS MEDICAL: U.S. FDA Issues Warning on Defibrillators ---------------------------------------------------------- Reuters reports that U.S. regulators have warned that some automated external defibrillators made by Philips Medical Systems may be unable to deliver potentially life-saving shocks to the heart in emergency situations, due to an electronic product malfunction. The U.S. Food and Drug Administration, in a safety advisory posted on the agency's website, provides recommendations on how to better inspect and monitor readiness of the previously recalled HeartStart AEDs. Many of them remain in schools, shopping malls, medical offices, sports clubs and private homes, available for use by emergency responders to jolt the heart back into normal rhythm in victims of sudden cardiac arrest. Philips, a unit of Dutch electronics company Royal Philips NV, in August 2012 voluntarily began notifying its customers that some of its more than 600,000 devices, almost half of them located in the United States, might fail to work properly due to a flawed internal electrical component. The FDA the following month declared a Class II recall on the devices, citing a "remote" chance of severe adverse consequences or death due to the product flaw. FDA spokeswoman Jennifer Rodriguez said the agency issued its safety advisory on Dec. 3 because Philips has been unable to reach a significant number of its customers, to point out the potential risk. "A lot of devices could be affected and we want to make sure people are aware of this safety issue," Ms. Rodriguez said. The FDA recommends that users, including consumers and first responders, contact Philips immediately for a replacement AED unit. "Philips has not received any reports of patient harm due to this issue," company spokesman Mario Fante said in an emailed statement on Dec. 4. "There have been 61 devices taken out of service for repair or replacement due to this issue, out of the 605,000 deployed worldwide," Mr. Fante said. Mr. Fante said the devices, through an automated periodic self- test feature, create an audible "triple-chirp alert" if the electrical problem exists. In that event, customers are advised to call company representatives immediately, Mr. Fante said. If the triple chirp is heard during emergency use, customers are advised to follow all voice instructions provided by the device. The AEDs were distributed between 2005 and 2012 and sold under the brand names HeartStartFRx, HeartStartHome and HeartStartOnsite. QUALITY SYSTEMS: Faces Securities Class Suit in California ---------------------------------------------------------- Deerfield Beach Police Pension Fund, Individually and on Behalf of All Others Similarly Situated v. Quality Systems, Inc., Steven T. Plochocki, Paul A. Holt, and Sheldon Razin, Case No. 8:13-cv- 01818-CJC-JPR (C.D. Cal., November 19, 2013) seeks to recover damages caused by the Defendants' alleged violations of the Securities Exchange Act of 1934. QSI and its senior executives made a series of materially false and misleading statements concerning the Company's purportedly strong growth prospects and favorable earnings guidance for fiscal years 2012 and 2013, the Plaintiff contends. QSI is a California corporation that develops and markets practice management software to medical and dental providers, including software related to scheduling and billing capabilities. QSI maintains offices in Irvine, California. The Individual Defendants are directors and officers of the Company. The Plaintiff is represented by: Blair A. Nicholas, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 12481 High Bluff Drive, Suite 300 San Diego, CA 92130 Telephone: (858) 793-0700 Facsimile: (858)793-0323 E-mail: Blairn@blbglaw.com - and - Gerald H. Silk, Esq. John J. Rizio-Hamilton, Esq. BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP 1285 Avenue of the Americas New York, NY 10019 Telephone: (212)554-1400 Facsimile: (212)554-1444 E-mail: Jerry@blbglaw.com Johnr@blbglaw.com - and - Robert D. Klausner, Esq. KLAUSNER, KAUFMAN, JENSEN & LEVLNSON 10059 Northwest 1st Court Plantation, FL 33324 Telephone: (954)916-1202 Facsimile: (954)916-1232 E-mail: Bob@robertdklausner.com RBS FINANCIAL: Wins Final OK of $1.75MM "Jordan" Suit Settlement ---------------------------------------------------------------- The U.S. District Court for the Northern District of California issued a final order approving RBS Financial Products Inc.'s $1.75 million settlement of a class action lawsuit captioned Jordan, et al. v. Paul Financial, LLC, et al., Case No. 3:07-cv-04496-SI (N.D. Cal., August 30, 2007). Judge Susan Illston also granted the application of the Class Counsel for reimbursement of attorneys' fees and costs of 25% of the Settlement Fund, or $437,500. The Plaintiffs are represented by: Gerson H. Smoger, Esq. Steven M. Bronson, Esq. SMOGER & ASSOCIATES 3175 Monterey Blvd Oakland, CA, 94602-3560 Telephone: (510) 531-4529 Facsimile: (510) 531-4377 E-mail: Gerson@texasinjurylaw.com steven.bronson@gmail.com - and - Jeffrey K. Berns, Esq. BERNS WEISS LLP 20700 Ventura Blvd., Suite 140 Woodland Hills, CA 91364 Telephone: (818) 961-2000 Facsimile: (818) 999-1500 E-mail: jberns@law111.com - and - Lee A. Weiss, Esq. BERNS WEISS LLP 585 Stewart Avenue, Suite L-20 Garden City, NY 11530 Telephone: (516) 222-2900 Facsimile: (818) 999-1500 E-mail: lweiss@law111.com - and - David M. Arbogast, Esq. Chumahan B. Bowen, Esq. ARBOGAST BOWEN LLP 11400 W. Olympic Blvd., 2nd Floor Los Angeles, CA 90064 Telephone: (310) 477-7200 Facsimile: (310) 943-2309 E-mail: david@arbogastbowen.com cbowen@arbogastbowen.com The Defendants are represented by: Irene C. Freidel, Esq. Brian M. Forbes, Esq. David D. Christensen, Esq. K&L GATES LLP State Street Financial Center One Lincoln Street Boston, MA 02111 Telephone: (617) 951-9154 Facsimile: (617) 261-3175 E-mail: irene.freidel@klgates.com brian.m.forbes@klgates.com david.christensen@klgates.com - and - Matthew Gordon Ball, Esq. Rachel Chatman, Esq. K&L GATES LLP Four Embarcadero Center, Suite 1200 San Francisco, CA 94111 Telephone: (415) 882-8200 Facsimile: (415) 882-8220 E-mail: matthew.ball@klgates.com rachel.chatman@klgates.com - and - Phoebe S. Winder, Esq. KIRKPATRICK & LOCKHART PRESTON GATES ELLIS LLP One Lincoln Street Boston, MA 02111 Telephone: (617) 261-3100 Facsimile: (617) 261-3175 E-mail: phoebe.winder@klgates.com - and - John Patrick Christian, Esq. Phillip R. Pollock, Esq. WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN LAW CORPORATION 475 Sansome Street, Suite 1800 San Francisco, CA 94111 Telephone: (415) 433-1400 Facsimile: (415) 433-3883 E-mail: jchristian@weintraub.com ppollock@weintraub.com - and - Paul S. Rosenlund, Esq. DUANE MORRIS LLP Spear Tower One Market Plaza, Suite 2200 San Francisco, CA 94105-1127 Telephone: (415) 957-3178 Facsimile: (415) 520-5479 E-mail: psrosenlund@duanemorris.com - and - Terrance James Evans, Esq. DUANE MORRIS LLP One Market, Spear Tower, Suite 2000 San Francisco, CA 94105-1104 Telephone: (415) 957-3000 Facsimile: (415) 957-3001 E-mail: tjevans@duanemorris.com - and - Fredrick Stuart Levin, Esq. BUCKLEYSANDLER LLP 100 Wilshire Boulevard, Suite 1000 Santa Monica, CA 90401 Telephone: (310) 424-3900 E-mail: flevin@buckleysandler.com - and - Benjamin B. Klubes, Esq. Caitlin M. Kasmar, Esq. Michelle L. Rogers, Esq. BUCKLEYSANDLER LLP 1250 24th Street, NW, Suite 700 Washington, DC 20037 Telephone: (202) 349-8000 Facsimile: (202) 349-8080 E-mail: bklubes@buckleysandler.com ckasmar@buckleysandler.com mrogers@buckleysandler.com REAL TIME: Sued Over Offers of Scratch-and-Win Settlement Cards --------------------------------------------------------------- A debt collector sent foreclosed homeowners unscrupulous offers via so-called "scratch-and-win" settlement cards, to trick them into paying on nonrecourse mortgage loans after they lost their home, reports Jack Bouboushian at Courthouse News Service, citing a class action filed in Wisconsin Federal Court. Kimberly Aker sued Real Time Resolutions, a Dallas-based company that buys and collects on debts. Aker claims that in March this year Real Time sent her a debt collection letter about an alleged second mortgage on her home that was foreclosed upon in 2010. Aker says that debt was a non-recourse loan: satisfiable only by seizure of the collateral, but not the assets of the borrower, so she is not personally liable for the loan as the property secured by the loan was sold at foreclosure. Real Time's letter "purports to offer the consumer a chance to settle her alleged debt at a discounted 'winning percentage,' the amount of which is revealed by scratching the houses on an enclosed 'scratch-and-win' card," according to the lawsuit. A second letter offered Aker up to 88 percent off the same bogus debt, via three settlement plans, she says. "These great offers expire on 10/15/13," the second letter said. Aker says: "The 'scratch-and-win' card is a sham, intended to fool class members into believing that they have won a significant discount on a large outstanding obligation. In fact, the class members have won nothing. "Upon information and belief, all of the 'scratch-and-win' cards printed and mailed to the class members purport to offer 88% off the alleged balance due. "Additionally, [the letter] identifies the alleged debt at issue in this action as a 'loan with no recourse.' Plaintiff has no obligation to pay the debts identified in [the letter] beyond foreclosure of the property. "Thus, [the letters] misrepresent to the consumer that paying 12 or 15 percent of the debt is a benefit because the consumer is not obligated to pay anything." (Bracketed words refer to exhibits.) Because plaintiffs' loans are "without recourse," plaintiffs are not liable for the debt beyond the forfeiture of the property that secured the loan. Finally: "The 'deadline' to respond to the settlement offer is a sham. There is no actual deadline. The sole purpose of the purported deadline is to impart in the consumer a false sense of urgency to pay," Akers says. She seeks actual and statutory damages for violations of the Fair Debt Collection Practices Act, and costs. The Plaintiff is represented by: John D. Blythin, Esq. Shpetim Ademi, Esq. David J. Syrios, Esq. ADEMI & O'REILLY LLP 3620 E Layton Ave. Cudahy, WI 53110 Telephone: (414) 482-8000 Facsimile: (414) 482-8001 E-mail: jblythin@ademilaw.com sademi@ademilaw.com dsyrios@ademilaw.com The case is Aker v. Real Time Resolutions Inc., Case No. 2:13-cv- 01311-CNC, in the United States District Court for the Eastern District of Wisconsin (Milwaukee). SOUTH AFRICA: FSB May Face Suit Over Funeral Assurance Policies --------------------------------------------------------------- Angelique Arde, writing for IOL Business, reports that consumers who have taken out funeral assurance policies are the victims of illegal practices, says the advocate who was part of the legal team that argued the bread price-fixing case in the Constitutional Court earlier this year. Abuses in the funeral assurance market are rife, and the Financial Services Board (FSB) knows it. It's a matter of time before a class action is brought against the regulator or a life company. This is the view of Advocate Chris Shone, who was part of the team of advocates who argued the bread distribution price-fixing case earlier this year in the Constitutional Court. This was the first class action to be fought successfully in South Africa. Small- scale bread distributors, represented by Imraahn Ismail Mukaddam, brought the case against bread producers Pioneer Foods, Tiger Brands and Premier Foods. At a recent seminar hosted by consulting firm Burns-Hoffman and Associates, Mr. Shone identified possible class actions that could be brought against the FSB or the long-term insurance industry. Mr. Shone says the bread cartel case has opened the way for class actions in South Africa, and if a "class" or group of people who meets the legal criteria to bring an action can be identified, it is likely they will obtain a settlement from a party that is found to be responsible for the damage or loss they suffered. About 95 percent of class actions in the US in which a class is certified -- in other words, meets the legal criteria of a class -- are settled, Mr. Shone says. "It's a very powerful threat," he says. Obvious abuses in the funeral industry have been allowed to continue for many years, but, until now, the victims have not been able to take legal action, because the harm they have suffered has been too small to justify individual claim. A class action is one involving an abusive practice on a large scale, and it is about "hundreds of Davids taking on Goliath, who is pulling off small rip-offs on a large scale and making massive profits", he says. The funeral assurance market is ripe for class actions, particularly in three areas where policyholders are the victims of illegal practices, Mr. Shone says. The Long Term Insurance (LTI) Act does not refer to "funeral policies" but regulates them through "assistance policies", which are life policies with a maximum benefit, Mr. Shone says. The maximum benefit was recently increased from R18 000 to R30 000, because the FSB found that, with the lower limit, consumers were being sold multiple policies. "No person may conduct the business of an insurer without being registered and authorized, meaning no person may issue an assistance (funeral) policy unless registered as an insurer," Mr. Shone says. He says the three areas where policyholders are victims of illegal practices are: 1. No cash benefit. Many funeral assistance schemes provide a funeral only, but no cash benefit, and this is a contravention of the LTI Act, Shone says. "The LTI Act requires that any policy benefit expressed otherwise than in a sum of money -- such as a funeral service -- must nevertheless be available as a sum of money equal in value to the cost the insurer would have incurred had the benefit been provided otherwise than as a sum of money. In short, a policy providing a funeral benefit only is invalid, and a cash benefit must always be available," he says. Members of a funeral scheme where the benefit is a funeral service only, without a cash alternative, would be capable of bringing a class action, Mr. Shone says. 2. No underwriting by a registered long-term insurer. The LTI Act stipulates that an entity must be registered and authorized to conduct the business of an insurer, and if someone has issued a policy that has not been underwritten, you, as the policyholder, may cancel the policy and claim your money back from the insurer. Many funeral policies are issued by entities that are not underwritten by a registered insurer, Mr. Shone says. Many schemes are re-insured, rather than underwritten, but this does not satisfy the requirements of the LTI Act, and such schemes are therefore in breach of the Act, he says. (In insurance terms, an underwriter would be the direct insurer, and a re-insurer insures the underwriter's risk, Mr. Shone says.) All members of any funeral scheme where the policy has not been underwritten by a registered insurer could lodge a class action, he says. 3. Payment of benefits to the wrong person. Insurers are required by the LTI Act to pay cash benefits to a nominated beneficiary or the deceased's estate, but many entities that offer funeral assurance pay benefits directly to other parties, such as undertakers. This contravention of the law "is a real problem and applies to illegal insurers, as well as registered insurers", Mr. Shone says. A class action could be brought by a beneficiary under a long-term policy issued by a funeral scheme or assurer that has paid the benefit to someone other than the beneficiary, such as an undertaker. It could also be brought by an executor of an estate where the deceased held a long-term policy issued by a funeral scheme or assurer where there was no beneficiary nomination and where the benefit was not paid to the deceased's estate. Other Problems with Funeral Assurance Schemes There are many problems with funeral assurance in addition to the three that could be grounds for class actions. Advocate Chris Shone says the problems are: * No contractual provision for premium increases. Mr. Shone says that life assurance companies can increase premiums with or without notifying policyholders, while the benefit is not increased. "If your premium is going up by 15 percent a year and it's R20 a month now, in five years it will be R40 a month, but you still only get a lousy R5 000 funeral benefit," he says. * Cover is from month to month. "This means the cover can be cancelled by the 'insurer' at any time, and that if the policyholder fails to make payment, cover terminates and all is lost," he says. * No paid-up values. Funeral assistance policies do not provide a surrender value, Mr. Shone says. "You stop paying, it's over. With [some] other insurance products, you get a paid-up value or surrender value when you stop paying. A formula is applied to work out the value; you don't lose everything. In this game, you lose it all." * No insurable interest. Insurance companies in the United States have been sued for not establishing whether, in fact, a person who takes out a policy had an insurable interest in someone else's life, Mr. Shone says. "Here we don't care. No one checks who has an insurable interest in whom," he says. * Double underwriting. It is common for an undertaker who has issued a funeral policy to approach two life assurers and re- insure the policy twice, Mr. Shone says. "The policyholder doesn't know this. When the policyholder dies, both insurers get a death certificate -- and you can get around the originals, because everyone certifies everything these days. The undertaker uses one payout to do the funeral and pockets the other. It happens a lot." * Actuarially unsound premiums. Mr. Shone says it is not uncommon for a funeral scheme to consist of a bakkie, a hearse and a couple of machines. Apart from that, there are no assets and no reserves. "In the event of a flood of claims, the business would go bust and there would be no means of recovering money for policyholders. Long-term insurers have to have reserves or re-insurers -- not in this business," he says. * No "pre-paid" funeral plan. Mr. Shone says an assistance policy provides cash to meet the costs of a funeral, but it is not a pre-paid funeral plan, which is the perception among many consumers in this market. * Excessive commissions. Commissions in the funeral assistance business are exorbitant -- they can exceed 30 percent of the premium, Mr. Shone says. Funeral assistance is the biggest sector of the insurance industry, but the commissions are not regulated. * Premiums are payable for life. "Generally, this is the case, which is fundamentally flawed. With an escalating premium, you're going to be paying, at age 99, probably R5 000 a month for your R5 000 funeral benefit. It makes no sense." Mr. Shone suggests that premiums be made payable for a certain term until the age of retirement, but that the benefits remain in place until death. 'FAILURE TO ACT EXPOSES FSB TO LEGAL ACTION' The failure by the Financial Services Board (FSB) to take action against unregistered funeral assurers exposes the regulator to a class action from policyholders who have suffered damages, Advocate Chris Shone says. "Does the function of the FSB extend beyond simply issuing warnings? Does the FSB not owe consumers a duty of care? By not closing down unregistered 'insurers' of which it is aware, can the FSB be held liable for any damages suffered by members of these unregistered schemes? "If the FSB is aware of an unregistered 'insurer', surely it is bound to act? Failure to do so could give rise to a claim consequent on an omission and a breach of the duty of care. Damages would include any sums lost by members of the unregistered insurer by paying premiums to the scheme," Mr. Shone says. Jonathan Dixon, deputy executive for insurance at the FSB, says that, in addition to warning the public about unregistered insurers, the regulator "carries out inspections and takes regulatory action" against illegal funeral scheme operators. The FSB has concerns about the abuse of consumers who use funeral schemes and is "looking at how to engage with insurers selling products through funeral parlors", Mr. Dixon says. National Treasury proposed a Microinsurance Act to regulate funeral assurance, but, with the introduction of the "twin peaks" model for regulating the financial services industry, a different approach will be adopted. "We're hoping to bring in provisions through rules by the middle of next year. These rules will provide for product standards to define microinsurance; simpler solvency requirements; and more proportionate fit-and-proper requirements under FAIS [the Financial Advisory and Intermediary Services Act] for people selling microinsurance products." These provisions will make it easier for illegal operators to comply with the law, Mr. Dixon says. Mr. Shone says that a recent amendment to the Financial Services Board Act is aimed at granting the FSB and its officials immunity from liability for losses or damages caused in the performance of their duties. By removing from the Act the words "grossly negligent" -- with reference to the regulator's conduct -- the FSB is essentially absolved from most liability, Mr. Shone says. But Mr. Dixon says the purpose of the amendment was to "bring the Act in line with the norm for other regulators and is in no way exceptional". Shone says the FSB is not known for being proactive, "invariably only getting involved when all has already been lost". As an organ of state, the FSB can be held to account for failing to discharge its statutory obligations adequately, he says. "What other purpose does the FSB have apart from regulating the financial services sector?" Mr. Dixon says the powers granted to the FSB are accompanied by accountability. "The FSB is subject to ongoing oversight by, and accountability to, National Treasury, the Minister of Finance and Parliament," he says. UNDERSTANDING CERTIFICATION To be able to bring a class action, "certification" is required, which means the applicants (the would-be claimants) have to apply to a court for the certification of a "class". The criteria for certification include: * Numerosity. Your class needs to be significant in size. Considering that most funeral assistance schemes have more than 1 000 premium-paying members, this would not be a problem, Advocate Chris Shone says. * Commonality. All class members must be in the same boat for the class to be certified. For example, either the entire book is underwritten, or nothing is underwritten, Shone says. "Policy wordings are generally identical, the only difference being age- related premium rates and waiting periods." * Ascertainability. Your members need to be "objectively identifiable". * Triability. Your case must have a reasonable prospect of success. * Typicality. A policyholder launching a claim must have a claim typical of all other members of the scheme. * Adequacy of representation. An individual policyholder who launches a claim should represent the interests of any class of claimants, provided the claim is not unique to that individual. STARBUCKS CORP: Shift Supervisors Allowed to Get Share of Tips -------------------------------------------------------------- If you are a Starbucks barista living in New York seeking a greater cut of your tips, it may be time to consider moving to Massachusetts, reports Adam Klasfeld at Courthouse News Service. The 2nd Circuit, whose jurisdiction extends to New York, Vermont and Connecticut, ruled against baristas in a class action claiming that their shift supervisors should not be allowed to grab a cut of their bounty under state labor law. In 2008, baristas Jeana Barenboim and Jose Ortiz sued Starbucks for more than $5 million on behalf of more than 5,000 of their comrades serving at 400 New York stores. They claimed that the chain's euphemistic corporate structure made them share their hard-earned tips with their "shift supervisors," whom they alleged to be actually their bosses. This put the company in violation of New York Labor Law, according to the lawsuit. Starbucks, on the other hand, countered that shift supervisors spend the bulk of their time performing the same duties as baristas: serving food and drinks to customers. They also assign baristas to certain positions during shifts, administer break periods, direct the flow of customers, and give feedback to baristas. In addition, shift supervisors have the authority to open and close stores, change the cash-register tills and deposit money in the bank. Even though they cannot hire or fire staff, shift supervisors can discipline baristas, report their job performances to managers, and coordinate their breaks and schedules, Barenboim noted. On November 21, 2013, the 2nd Circuit found in a 5-page, unsigned summary order that these duties were not enough to qualify shift supervisors as employers under state law. The three-judge panel's ruling upheld U.S. District Judge Laura Taylor Swain's granting of summary judgment to Starbucks. Almost exactly one year ago, the Boston-based 1st Circuit reached precisely the opposite conclusion when it upheld a $14 million judgment against Starbucks in a class action of 2,500 baristas suing under the Massachusetts Tip Act. That decision scorched Starbucks practices and praised Massachusetts for being "in the regulatory forefront on these cutting-edge issues" of gratuities law. Unlike New York Labor Law, the Massachusetts Tip Act mandates that only employees with "no managerial responsibility" can qualify as "wait staff." "'No' means 'no,' and we interpret that easily understood word in its ordinary sense: 'not any,'" Judge Bruce Selya had written for the 1st Circuit. Hammering home the point, the decision cites the entries for "no" in Merriam-Webster, the American Heritage Dictionary and Random House Dictionary. By contrast, New York State Labor Law's states in Section 196-D: "No employer or his agent or an officer or agent of any corporation, or any other person shall demand or accept, directly or indirectly, any part of the gratuities, received by an employee, or retain any part of a gratuity or of any charge purported to be a gratuity for an employee." The statute did not define the level of managerial responsibility made someone an employer. When the 2nd Circuit originally heard Barenboim's appeal, the court originally punted that question the New York Court of Appeals, which limited tip collecting to employees who are "ordinarily engaged in customer service." Daniel Kirschenbaum, who represents Barenboim for the firm Joseph, Herzfeld, Hester & Kirschenbaum, did not immediately respond to a request for comment. The lawyers typical success advocating for restaurant workers drove New York Magazine to ask, "Why Are New York's Chefs Afraid of This Man?" The Plaintiffs-Appellants are represented by: Daniel Maimon Kirschenbaum, Esq. JOSEPH, HERZFELD, HESTER & KIRSCHENBAUM LLP 233 Broadway, 5th Floor New York, NY 10279 Telephone: (212) 688-5640 Facsimile: (212) 688-2548 E-mail: maimon@jhllp.com - and - Shannon Liss-Riordan, Esq. LICHTEN & LISS-RIORDAN, P.C. 100 Cambridge Street Boston, MA 02114 Telephone: (617) 994-5800 Facsimile: (617) 994-5801 E-mail: sliss@llrlaw.com The Defendant-Appellee is represented by: Daniel L. Nash, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 1333 New Hampshire Avenue, NW Washington, DC 20036 Telephone: (202) 887-4067 Facsimile: (202) 887-4288 E-mail: dnash@akingump.com - and - Samidh Guha, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 1 Bryant Park New York, NY 10036 Telephone: (212) 812-1000 E-mail: sguha@akingump.com - and - Rex S. Heinke, Esq. AKIN GUMP STRAUSS HAUER & FELD LLP 2029 Century Park East Los Angeles, CA 90067 Telephone: (310) 229-1030 Facsimile: (310) 229-1001 E-mail: rheinke@akingump.com The appellate case is Jeana Barenboim, et al. v. Starbucks Corporation, Case No. 10-4912, in the United States Court of Appeals for the Second Circuit. The original case is Jeana Barenboim, et al. v. Starbucks Corporation, Case No. 08-cv-3318, in the U.S. District Court for the Southern District of New York. SUMMERLIN HOSPITAL: Allowed TB Mom Into Neonatal ICU, Suit Says --------------------------------------------------------------- Megan Gallegos at Courthouse News Service reports that a Las Vegas hospital allowed a tubercular mother into its neonatal intensive care unit, putting at risk more than 100 babies, visitors and hospital staff, eight people claim in a class action. Lead plaintiff Lara Snyder et al. sued Summerlin Hospital Medical Center, Valley Health System, Universal Health Services and five hospital managers and administrators, in Clark County Court. Plaintiffs include two patients, several family members who visited patients, and hospital staff members. In July, Vanessa White, "a 25-year-old postpartum woman, was transferred from Summerlin Medical Center ('Summerlin') to a Los Angeles, California hospital, where she passed away," according to the complaint. "Ms. White was subsequently diagnosed as having been infected with tuberculosis. She was never tested for the disease while she was a patient at Summerlin." The lawsuit continues: "White had been previously admitted in May 2013 to Summerlin where she delivered premature twins, Emma and Abigail. She had been ill to varying degrees prior to and after the birth of her twins, returning to Summerlin for treatment after delivering the twins. Her condition worsened, and eventually she was transferred to the Los Angeles hospital for a higher level of care. The autopsy revealed that the woman had been infected with tuberculosis. She was never tested for the disease before her death, and she was admitted to Summerlin with no precautions or quarantine measures whatsoever taken by Summerlin with regard to her tuberculosis. "The twins, Emma and Abigail, were hospitalized at Summerlin's Neonatal Intensive Care Unit ('NICU') from birth until their deaths, also with no precautions or quarantine measures whatsoever taken by Summerlin with regard to their tuberculosis. Emma died in June 2013 without being tested for tuberculosis. Abigail was diagnosed with tuberculosis after California health officials reported White's infection to Nevada health officials, who in turn informed Summerlin. Despite receiving treatment, Abigail succumbed to the disease in August 2013, her death certificate listing tuberculosis as the cause of death. "White repeatedly visited her babies in the Summerlin NICU for hours at a time during a period when she was suffering from undiagnosed active tuberculosis infection and was highly contagious, coming into direct contact with hospital employees and staff, patients, family members, vendors, contractors and visitors. Summerlin administrators and staff allowed her unfettered access to the hospital and those within it, did not require her to wear standard protective garb, such as masks, gowns or gloves, and did not screen or test her tuberculosis, despite the fact that she exhibited multiple symptoms that Summerlin administrators and staff knew or should have known called for appropriate testing and precautionary measures. "Despite White's multiple symptoms, defendants failed to screen her, diagnose her, or take appropriate precautions to isolate or quarantine her. Moreover, defendants failed to issue any warnings or take any other measures to protect the safety of hospital staff, patients, family members, visitors, contractors, vendors and/or members of the general public. The plaintiffs say Summerlin sent a letter to the parents of 140 babies who may have been affected, but only after the Southern Nevada Health District got word of the outbreak and a report was filed with the Nevada Bureau of Health Care Quality and Compliance. More than 400 people have been tested and the testing is continuing, the plaintiffs say. They seek class certification, medical monitoring, an injunction and damages and punitive damages for negligence, fraud, misrepresentation and concealment, and infliction of emotional distress. The Plaintiffs are represented by: Matthew Q. Callister, Esq. CALLISTER + ASSOCIATES 823 Las Vegas Boulevard South, 5th Floor Las Vegas, NV 89101 Telephone: (702) 333-3334 Facsimile: (702) 385-2899 E-mail: mqc@neonlawyer.com The case is Lara Snyder, et al. vs. Summerlin Hospital Medical Center LLC, Case No. A-13-691831-C, in the U.S. District Court for the District of Nevada, Clark County. TEXAS: Faces "Zahrn" Suit Over Denial of Same-Sex Marriage ---------------------------------------------------------- Shannon Zahrn, Catherine Zahrn, Alexius Augustine, and Andrew Simpson, on behalf of themselves and all others similarly situated v. Rick Perry, in his official capacity as Governor of Texas; Greg Abbott, in his official capacity as Attorney General of Texas; and Dana DeBeauvoir, in her official capacity as County Clerk of Travis County, Texas, Case No. 1:13-cv-00955-SS (W.D. Tex., October 31, 2013) alleges that the state of Texas, through Article I, Section 32 of the Texas Constitution and Sections 2.001 and 6.204 of the Texas Family Code, imposes inequality on gays and lesbians in exactly the same way that the Defense of Marriage Act (DOMA) did -- by denying the Class the basic right to marry. The Plaintiffs, hence, ask the Court to protect and enforce their rights and the rights of the Class under the United States Constitution, by declaring Article I, Section 32 and Sections 2.001 and 6.204 unconstitutional, and by enjoining permanently the enforcement of these and any other provisions of Texas law that would seek to deny same-sex couples equal access to civil marriage in Texas. The Plaintiffs are represented by: Jason P. Steed, Esq. BELL NUNNALLY & MARTIN, LLP 3232 McKinney Ave., Suite 1400 Dallas, TX 75204 Telephone: (214) 740-1411 Facsimile: (214) 740-5711 E-mail: jasons@bellnunnally.com - and - James J. Scheske, Esq. JAMES J. SCHESKE PLLC 5501-A Balcones #109 Austin, TX 78731 Telephone: (512) 371-1790 Facsimile: (512) 323-2260 E-mail: jscheske@austin.rr.com - and - S. Leigh Jorgeson, Esq. Ian Pittmanv, Esq. JORGESON PITTMAN LLP 4505 Spicewood Springs Road, Suite 335 Austin, TX 78759 Telephone: (512) 320-0999 Facsimile: (512) 320-0025 E-mail: leigh@jptexaslaw.com TREX COMPANY: Settles Product Defect Suits by Cohen & Malad ----------------------------------------------------------- Trex Company, Inc. reached a settlement for two lawsuits filed by Cohen & Malad, LLP alleging certain defects in the Company's products and alleged misrepresentations relating to mold growth, according to the company's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On December 15, 2010, a purported class action case was commenced against the Company in the United States District Court, Western District of Kentucky, by Cohen & Malad, LLP ("Cohen & Malad") on behalf of Richard Levin and similarly situated plaintiffs in Kentucky, and on June 13, 2011, a purported class action was commenced against the Company in the Marion Circuit/Superior Court of Indiana by Cohen & Malad on behalf of Ellen Kopetsky and similarly situated plaintiffs in Indiana. On June 28, 2011, the Company removed the Kopetsky case to the United States District Court, Southern District of Indiana. (On September 3, 2013, the two lawsuits commenced by Cohen & Malad were settled.) On August 11, 2011, a purported class action was commenced against the Company in the 50th Circuit Court for the County of Chippewa, Michigan on behalf of Joel and Lori Peffers and similarly situated plaintiffs in Michigan. On August 26, 2011, the Company removed the Peffers case to the United States District Court, Western District of Michigan. On April 4, 2012, a purported class action was commenced against the Company in Superior Court of New Jersey, Essex County by the lead law firm of Stull, Stull & Brody (the "Stull Group") on behalf of Caryn Borger, M.D. and similarly situated plaintiffs in New Jersey. On May 1, 2012, the Company removed the Borger case to the United States District Court, District of New Jersey. The plaintiffs in these purported class actions generally allege certain defects in the Company's products and alleged misrepresentations relating to mold growth. TREX COMPANY: Dec. 13 Final Approval Hearing -------------------------------------------- Trex Company, Inc. reveals the material terms of a nationwide settlement it entered with the law firm of Hagens Berman Sobol Shapiro LLP that would settle the case pending in the United States District Court, Northern District of California, according to the company's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. On April 5, 2013, the Company signed a settlement agreement with Hagens Berman that would settle the case pending in the United States District Court, Northern District of California on a nationwide basis, and the parties filed for preliminary approval of such settlement (the "nationwide settlement"). The material terms of the nationwide settlement, as amended by an amended settlement agreement signed on September 3, 2013, are as follows: (1) Trex will make a one-time cash payment or the opportunity to receive other relief, including a rebate certificate on its newer-generation shelled product (Trex Transcend and Trex Enhance). This relief would be available for any consumer whose first-generation composite decking product has a certain defined level of mold growth, color fading or color variation. (2) Trex agreed to discontinue the manufacture of non-shelled products (Trex Accents ) by December 31, 2013. (3) Trex agreed to provide a video demonstrating cleaning instructions for non-shelled products on its website, and to distribute warranty pads to retailers. (4) The cost to Trex will be capped at $8.25 million plus $1.45 million in attorneys' fees to be paid to the Plaintiffs' counsel upon final approval of the nationwide settlement by the Court. The settlement agreement provides that the nationwide settlement would apply to any Trex first-generation non-shelled composite decking product purchased between August 1, 2004 and the date of preliminary approval of the nationwide settlement. On August 27, 2013, the Court entered an Order granting preliminary approval of the settlement agreement, and set a hearing for final approval on December 13, 2013. The settlement is not final until the Court grants final approval of the settlement agreement. The Court may, in its sole discretion determine not to accept the settlement. If the Court does not grant final approval of the settlement, the settlement agreement will not be binding on the parties. The Company denies all liability with respect to the facts and claims alleged. However, the Company is aware of the substantial burden, expense, inconvenience and distraction of continued litigation, and agreed to settle the litigation to avoid these. As of September 30, 2013, the Company has accrued a $3.3 million liability related to this litigation. It is reasonably possible that the Company may incur costs in excess of the recorded amounts; however, the Company expects that the total net cost to resolve the lawsuit will not exceed approximately $10 million. The Company has other lawsuits, as well as other claims, pending against it which are ordinary routine litigation and claims incidental to the business. Management has evaluated the merits of these other lawsuits and claims, and believes that their ultimate resolution will not have a material effect on the Company's consolidated financial condition, results of operations, liquidity or competitive position. TREX COMPANY: Still Faces Lawsuits Alleging Product Defects ----------------------------------------------------------- In its Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013, Trex Company, Inc. provided updates on suits that allege certain defects in the Company's products. As reported in the Company's Annual Report on Form 10-K for the year ended December 31, 2012, on January 19, 2009, a purported class action case was commenced against the Company in the Superior Court of California, Santa Cruz County, by the lead law firm of Lieff, Cabraser, Heimann & Bernstein, LLP and certain other law firms (the "Lieff Cabraser Group") on behalf of Eric Ross and Bradley S. Hureth and similarly situated plaintiffs. These plaintiffs generally allege certain defects in the Company's products, and that the Company has failed to provide adequate remedies for defective products. On February 13, 2009, the Company removed this case to the United States District Court, Northern District of California. On January 21, 2009, a purported class action case was commenced against the Company in the United States District Court, Western District of Washington by the law firm of Hagens Berman Sobol Shapiro LLP ("Hagens Berman") on behalf of Mark Okano and similarly situated plaintiffs, generally alleging certain product defects in the Company's products, and that the Company has failed to provide adequate remedies for defective products. This case was transferred by the Washington Court to the California Court as a related case to the Lieff Cabraser Group's case. On July 30, 2009, the U.S. District Court for the Northern District of California preliminarily approved a settlement of the claims of the lawsuit commenced by the Lieff Cabraser Group involving surface flaking of the Company's product, and on March 15, 2010, it granted final approval of the settlement. On March 25, 2010, the Lieff Cabraser Group amended its complaint to add claims relating to alleged defects in the Company's products and alleged misrepresentations relating to mold growth. Hagens Berman has alleged similar claims in its original complaint. In its Final Order approving the surface flaking settlement, the District Court consolidated these pending actions relating to the mold claims, and appointed Hagens Berman as lead counsel in this case. On December 3, 2010, Hagens Berman filed an amended consolidated complaint in the United States District Court, Northern District of California relating to the mold growth claims (now on behalf of Dean Mahan and other named plaintiffs). UNITIL CORP: Denial of Certification in "Bellerman" Reviewed ------------------------------------------------------------ The Massachusetts Supreme Judicial Court is reviewing the denial of certification in Bellerman et al v. Fitchburg Gas and Electric Light Company, according to Unitil Corporation's Oct. 25, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2013. In early 2009, a putative class action complaint was filed against Unitil Corporation's (the "Company") Massachusetts based utility, Fitchburg Gas and Electric Light Company (Fitchburg), in Massachusetts' Worcester Superior Court (the "Court"), (captioned Bellerman et al v. Fitchburg Gas and Electric Light Company). The Complaint seeks an unspecified amount of damages, including the cost of temporary housing and alternative fuel sources, emotional and physical pain and suffering and property damages allegedly incurred by customers in connection with the loss of electric service during the ice storm in Fitchburg's service territory in December, 2008. The Complaint, as amended, includes M.G.L. ch. 93A claims for purported unfair and deceptive trade practices related to the December 2008 ice storm. On September 4, 2009, the Court issued its order on the Company's Motion to Dismiss the Complaint, granting it in part and denying it in part. Following several years of discovery, the plaintiffs in the complaint filed a motion with the Court to certify the case as a class action. On January 7, 2013, the Court issued its decision denying plaintiffs' motion to certify the case as a class action. As a result of this decision, the lawsuit would now proceed with only the twelve named plaintiffs seeking damages; however, the plaintiffs have appealed this decision to the Massachusetts Supreme Judicial Court (the "SJC"). The SJC has accepted the matter for review. The Town of Lunenburg has also filed a separate action in Massachusetts Worcester County Superior Court arising out of the December 2008 ice storm. The parties to this action have agreed to put this matter on hold pending the decision of the Supreme Judicial Court in Bellermann. The Company continues to believe these suits are without merit and will continue to defend itself vigorously. WESTLAKE SERVICES: "Duchene" Suit Removed to W.D. Pa. ----------------------------------------------------- At Westlake Services, LLC's behest, the class action lawsuit styled Pierce Duchene, on behalf of himself and all others similarly situated v. Westlake Services, LLC d/b/a Westlake Financial Services, Case No. 2:13-cv-05654-TJS (E.D. Pa., September 26, 2013) was transferred to the U.S. District Court Western District of Pennsylvania (Pittsburgh). The new case is Pierce Duchene v. Westlake Services, LLC d/b/a Westlake Financial Services, Case No. 2:13-cv-01577-MRH (W.D. Pa., October 31, 2013). The lawsuit seeks damages resulting from the alleged illegal actions of Westlake. The Plaintiff alleges that the Defendant negligently, knowingly, and willfully placed automated calls to his cellular phone in violation of the Telephone Consumer Protection Act. Westlake is a California business entity headquartered in Los Angeles, California. Westlake is a technology-based, privately held finance company that specializes in the acquisition and servicing of prime to subprime automotive retail installment contracts. The Plaintiff is represented by: Jody B. Burton, Esq. Sergei Lemberg, Esq. LEMBERG & ASSOCIATES, LLC 1100 Summer Street Stamford, CT 06905 Telephone: (203) 653-2250 Facsimile: (203) 653-3424 E-mail: jburton@lemberglaw.com slemberg@lemberglaw.com The Defendant is represented by: Seth A. Schaeffer, Esq. MCGUIREWOODS LLP One James Center 901 E. Cary Street Richmond, VA 23219 Telephone: (804) 775-1174 Facsimile: (804) 698-2167 E-mail: sschaeffer@mcguirewoods.com - and - Laura A. Lange, Esq. MCGUIREWOODS LLP 625 Liberty Avenue, 23rd Floor Pittsburgh, PA 15222 Telephone: (412) 667-7941 Facsimile: (412) 667-7961 E-mail: llange@mcguirewoods.com * Canada SC Clarifies Limitation Period for Secondary Proceedings ----------------------------------------------------------------- The Supreme Court of Canada has recently provided clarity on the limitation period applicable to "secondary proceedings" in the securities enforcement context. Subject to a few exceptions, these proceedings, brought in the public interest against persons who have agreed with another jurisdiction's securities regulator to be subject to regulatory action, must not be commenced more than six years after the date of "the events" that gave rise to the proceeding. In McLean v. British Columbia (Securities Commission) -- see http://is.gd/UDDlDf-- released earlier on Dec. 5, 2013, the Supreme Court upheld the B.C. Securities Commission's (BCSC's) reciprocal order, issued against an individual director in 2010 for conduct that occurred in Ontario in 2001 and for which the director entered into a settlement agreement with the Ontario Securities Commission in 2008. The "event," as found by the BCSC and affirmed by the Supreme Court, was the fact of having agreed with a securities regulator to be subject to regulatory action. According to Osler, Hoskin & Harcourt LLP, the decision is noteworthy because the Supreme Court has clarified the standard of review for a tribunal when interpreting its own statute and reaffirms that deference is owed to administrative decision makers on interpretative matters. At the same time, the decision leaves open the possibility that other provincial and territorial securities commissions may arrive at different interpretations of their own statutory limitation periods. The decision also leaves open the prospect, albeit remote, of provinces "piggy-backing" reciprocal orders sequentially, with the result that a person may be subject to lengthy regulatory 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. 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