/raid1/www/Hosts/bankrupt/CAR_Public/140102.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, January 2, 2014, Vol. 16, No. 1
Headlines
APPLE INC: Faces Suit Over "In App" Subscriptions and Charges
APPRISS INC: Court Denies Approval of "Burton" Suit Dismissal Bid
BANK OF AMERICA: Agreed to Settle Canadian Interchange Litigation
BANK OF AMERICA: Has Court OK of Pacts in Teamsters et al. Suits
BANK OF AMERICA: Still Faces Vermont Pension Action
BANKRATE INC: Sued Over 2011 Initial Public Offering
BAXTER INT'L: $64MM Settlement Reached in Price-Fixing Suit
BIG 5 SPORTING GOODS: Agreed With Plaintiffs to Settle Lawsuit
BROWNING INT'L: Recalls Junior Hoodie Due to Strangulation
CANADA: Prairie Farmers May Appeal CWB Class Action Ruling
CLECO CORPORATION: Review on LPSC Ruling Remains Pending
COMCAST CORP: Seeks to Dismiss Motion to Certify New Class
COMCAST CORPORATION: Submitted Settlement Agreement for 23 Cases
CON-WAY INC: "Quezada" Case Trial Scheduled for April 2014
CRACKER BARREL: Former Employee Files Wage Class Action
CYTOSPORT INC: "Delacruz" Suit Settlement Gets Initial Approval
ELI LILLY: Named as Defendant in Product Liability Claims
EXTRA SPACE: Court Denies Class Cert. Bid in "Curtis" Suit
FARMERS INSURANCE: Dist. Court Judgment in Countryman Suit Upheld
FLAGSTAR BANCORP: Court Denies Request to Dismiss RESPA Complaint
FOX FACTORY: Recalls Evolution Mountain Bike Suspension Forks
FRANKLIN, TN: Property Owners to Join Suit Over New Sewer Lines
GARMIN LTD: Dropped as Defendant in "Meyers" Complaint
GLAXOSMITHKLINE: Fraudster Recruits Class Action Plaintiffs
GOOGLE INC: Court Approved Class C Shareholder Suit Settlement
INDEPENDENCE ENERGY: Court Ruling May Spur More TCPA Class Actions
INTELIUS INC: Can't Compel Class Into Arbitration, 9th Cir. Ruled
JAMBA JUICE: Court Tosses "Lilly" Suit Dismissal Bid
KINDER MORGAN: Court Approved Copano Shareholders Suit Settlement
LANDSCAPE STRUCTURES: Recalls Oodle Swings Due to Injury Hazard
LIBBEY GLASS: Recalls Cocktail Glasses Due to Laceration Hazard
LOCKHEED MARTIN: Sup. Ct. Refuses to Review Employee Class Action
MOTOROLA: NHCA Gets Cy Pres Award Under Class Action Settlement
NEUROGESX INC: Briefing Schedule in "Maritime Asset" Suit Set
NUVASIVE INC: Named as Defendant in "Popov" Securities Class Suit
PG&E CORP: Calif. Suit Over Unfair Business Practices Dismissed
PLAYTEX PRODUCTS: Recalls Infant Carriers Due to Fall Hazard
PRINCIPAL FINANCIAL: High Court Denies Writ of Certiorari
PRINCIPAL FINANCIAL: Class Cert. Denied in "Cruise/Mullaney" Suits
PVR PARTNERS: Being Sold to Regency for Too Little, Suit Claims
RED WING: Recalls Steel Toe Work Boots Due to Impact Hazard
REXFORD INDUSTRIAL: Pre-IPO Investors File Securities Suit
SANTARUS INC: Insiders to Profit Unfairly From Sale, Suit Says
SOLIL MANAGEMENT: Hurricane Sandy Class Action "Gravely in Doubt"
STATE STREET: Disclosure Guidelines Set in ERISA Class Suit
TRW AUTOMOTIVE: Faces "Occupant Safety Systems" Price Fixing Suits
TURQUOISE HILL: Faces Securities Class Action in New York
VECTOR GROUP: Liggett Facing 4 Pending Actions as of Sept. 30
WAL-MART STORES: 9th Cir. Refused to Vacate $28MM Atty. Fee Award
WELLS FARGO: Faces Class Action Over Unlawful Evictions
YANKEE CANDLE: Recalls Candle Ring Due to Fire Hazard
* Right-Wing Media Outlets Support "Forced-Arbitration Clauses"
*********
APPLE INC: Faces Suit Over "In App" Subscriptions and Charges
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Frank Siciliano and Melissa Bleak, individually and on behalf of
all others similarly situated v. Apple, Inc., a California
Corporation, Case No. 1-13-CV-257676 (Cal. Super. Ct., Santa Clara
Cty., December 13, 2013) seeks restitution, injunctive and other
equitable relief under the California Business and Professions
Code.
The lawsuit is brought on behalf of those who purchased an "In
App" subscription in California utilizing their iPad, iPhone,
AppleTV or other similar device for digital content through the
Defendant's App Store since December 1, 2010. The Plaintiffs
allege that during the Class Period, Apple made, and continues to
make, automatic renewal or continuous service offers to consumers
and charged their credit or debit cards and other accounts without
obtaining their affirmative consent to the agreement containing
the automatic renewal offer terms.
Apple is California corporation headquartered in Cupertino,
California. The Company designs, manufactures and markets mobile
communication and media devices, personal computers and portable
digital music players, and sells a variety of related software,
services, peripherals, networking solutions and third-party
digital content and applications.
The Plaintiffs are represented by:
Julian Hammond, Esq.
HAMMONDLAW PC
1180 S. Beverly Drive, Suite 610
Los Angeles, CA 90035
Telephone: (310) 601-6766
Facsimile: (310) 295-2385
E-mail: Hammond.julian@gmail.com
- and -
Ari Cherniak, Esq.
HAMMONDLAW PC
1829 Reisterstown Road, Suite 410
Baltimore, MD 21208
Telephone: (443) 739-5758
Facsimile: (310) 295-2385
E-mail: ari.cherniak@gmail.com
APPRISS INC: Court Denies Approval of "Burton" Suit Dismissal Bid
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Senior District Judge Charles R. Simpson, III, in Kentucky denied
a request to dismiss the lawsuit captioned, ANGELA BURTON,
Plaintiff, v. APPRISS, INC., Defendant, NO. 3:13-CV-00316-CRS,
(W.D. Ky.).
Appriss, Inc., seeks dismissal of Angela Burton's complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) or,
alternatively, dismissal of Ms. Burton's state-law claim.
Ms. Burton was formerly employed as an Account Manager for
Appriss' Information Services Group in Louisville, Kentucky.
Ms. Burton purports to bring a collective action under the FLSA,
29 U.S.C. Section 201, et seq., and a Rule 23 class action under
the Kentucky Wages and Hours Act, KRS Sections 337.010, et seq.
The proposed class would include "[a]ll present and former Account
Managers of Appriss, Inc., who were not paid overtime compensation
for time worked in excess of forty (40) hours per week or were not
compensated for time worked." Ms. Burton's complaint requests
that the court certify the action as a class action pursuant to
Rule 23 and, in accordance with 29 U.S.C. Section 216(b), issue
notice to all persons who are presently, or have at any time in
the three years preceding the filing of this action, been employed
by Appriss in the position of Account Manager.
"The court must deny Appriss' motion to dismiss at this time
because formal discovery may produce evidence supporting Burton's
claims," ruled Senior District Judge Charles R. Simpson, III.
"The resolution of Burton's class action relief under KRS Section
337.285 is properly before the court."
A copy of the District Court's November 19, 2013 Memorandum
Opinion is available at http://is.gd/E71YHnfrom Leagle.com.
BANK OF AMERICA: Agreed to Settle Canadian Interchange Litigation
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In its Form 10-Q filed on October 30, 2013, with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013, Bank of America Corporation disclosed that on
August 16, 2013, it entered into an agreement to settle the
Canadian interchange class actions for an amount not material to
the Corporation's results of operations. The settlement is subject
to court approval in five provinces.
Bank of America Corporation is a Delaware corporation, a bank
holding company and a financial holding company with principal
executive offices in Charlotte, North Carolina. Through its
banking and various nonbanking subsidiaries throughout the U.S.
and in international markets, the Company provides a diversified
range of banking and nonbanking financial services and products
through five business segments: Consumer & Business Banking (CBB),
Consumer Real Estate Services (CRES), Global Banking, Global
Markets and Global Wealth & Investment Management (GWIM), with the
remaining operations recorded in All Other.
BANK OF AMERICA: Has Court OK of Pacts in Teamsters et al. Suits
----------------------------------------------------------------
Bank of America Corporation disclosed in its Form 10-Q filed on
October 30, 2013, with the U.S. Securities and Exchange Commission
for the quarterly period ended September 30, 2013, that on August
8, 2013, the Multidistrict Litigation Court preliminarily approved
the settlement of the Maine State, David H. Luther and Western
Conference of Teamsters actions.
The settlement provides, among other things, that all claims that
have been asserted in any putative class action against
Countrywide concerning Countrywide-issued MBS will be released and
discharged upon final court approval of the settlement.
Bank of America Corporation is a Delaware corporation, a bank
holding company and a financial holding company with principal
executive offices in Charlotte, North Carolina. Through its
banking and various nonbanking subsidiaries throughout the U.S.
and in international markets, the Company provides a diversified
range of banking and nonbanking financial services and products
through five business segments: Consumer & Business Banking (CBB),
Consumer Real Estate Services (CRES), Global Banking, Global
Markets and Global Wealth & Investment Management (GWIM), with the
remaining operations recorded in All Other.
BANK OF AMERICA: Still Faces Vermont Pension Action
---------------------------------------------------
Bank of America Corporation is one of two defendants in a new
putative class action based on similar factual allegations and the
same claims and legal theories as the Policemen's Annuity action,
according to the Company's Form 10-Q filed on October 30, 2013,
with the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2013.
On August 23, 2013, the Vermont Pension Investment Committee and
the Washington State Investment Board brought a new putative class
action in the U.S. District Court for the Southern District of New
York entitled Vermont Pension Investment Committee and the
Washington State Investment Board v. Bank of America, N.A. and
U.S. Bank National Association (Vermont Pension). The Vermont
Pension action is based on similar factual allegations and the
same claims and legal theories as the Policemen's Annuity action,
but concerns six different RMBS trusts collateralized by
Washington Mutual-originated mortgages for which BANA is the
former trustee and U.S. Bank is the current trustee. As in
Policemen's Annuity, plaintiffs seek unspecified compensatory
damages and/or equitable relief, and costs and expenses. The case
was marked as related to Policemen's Annuity and assigned to the
same judge, who ordered the two cases coordinated for pre-trial
purposes.
Bank of America Corporation is a Delaware corporation, a bank
holding company and a financial holding company with principal
executive offices in Charlotte, North Carolina. Through its
banking and various nonbanking subsidiaries throughout the U.S.
and in international markets, the Company provides a diversified
range of banking and nonbanking financial services and products
through five business segments: Consumer & Business Banking (CBB),
Consumer Real Estate Services (CRES), Global Banking, Global
Markets and Global Wealth & Investment Management (GWIM), with the
remaining operations recorded in All Other.
BANKRATE INC: Sued Over 2011 Initial Public Offering
----------------------------------------------------
The Arkansas Teacher Retirement System on October 10, 2013,
brought a purported class action suit against Bankrate, Inc.,
alleging that the Company's public disclosures regarding its
insurance leads business were materially misleading, according to
the Company's Form 8-K dated October 10, 2013, filed with the U.S.
Securities and Exchange Commission on October 30, 2013.
On October 10, 2013, the Arkansas Teacher Retirement System
brought a purported class action suit in federal court in the
Southern District of New York against Bankrate, certain officers
and directors of Bankrate, entities associated with Apax Partners,
and the underwriters in Bankrate's 2011 initial public offering
and December 2011 stock offering. The suit, captioned Arkansas
Teacher Retirement System v. Bankrate, Inc., 13-CV-7183, alleges,
among other things, that Bankrate's public disclosures regarding
its insurance leads business were materially misleading, and seeks
damages, rescission and/or recessionary damages under various
provisions of the federal securities laws. Bankrate believes that
the claims alleged in the suit are without merit, and intends to
vigorously defend against the litigation.
Bankrate, Inc. is a publisher, aggregator and distributor of
personal finance content on the Internet. The Company provides
consumers with personal finances editorial content across multiple
vertical categories, including mortgages, deposits, insurance,
credit cards, and other categories, such as retirement, automobile
loans, and taxes. The Company provides financial applications and
information to a network of distribution partners and through
national and state publications. The Company develops and provides
Web services to over 75 co-branded partners, including personal
finance sites on the Internet such as Yahoo!, CNN Money, CNBC and
Comcast. The Company licenses editorial content to over 100
newspapers on a daily basis, including including The Wall Street
Journal, USA Today, The New York Times, The Los Angeles Times and
The Boston Globe.
BAXTER INT'L: $64MM Settlement Reached in Price-Fixing Suit
-----------------------------------------------------------
Baxter International Inc.'s co-defendant announced in October 2013
a $64 million settlement of claims against itself and an industry
association, the other remaining defendant in a case.
According to Baxter's Form 10-Q filed on October 30, 2013, with
the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2013, the company is a defendant, along
with others, in a number of lawsuits consolidated for pretrial
proceedings in the U.S.D.C. for the Northern District of Illinois
alleging that Baxter and certain of its competitors conspired to
restrict output and artificially increase the price of plasma-
derived therapies since 2003. Some of the complaints attempt to
state a claim for class action relief and some cases demand treble
damages. In February 2011, the court denied the company's motion
to dismiss certain of the claims and the parties are proceeding
with discovery. In January 2012, the court granted the company's
motion to dismiss certain federal claims brought by indirect
purchasers and returned the remaining indirect purchaser claims to
the court of original jurisdiction (U.S.D.C. for the Northern
District of California) in August 2012. The indirect purchaser
complaint was amended to remove class action allegations in May
2013. The direct purchaser plaintiffs asked the court to certify a
class action in September 2013. In October 2013, a co-defendant
announced a $64 million dollar settlement of claims against itself
and an industry association, the other remaining defendant in the
case.
Baxter International Inc. (Baxter,) is a global, diversified
healthcare company. Baxter, through its subsidiaries, develops,
manufactures and markets products that save and sustain the lives
of people with hemophilia, immune disorders, infectious diseases,
kidney disease, trauma, and other chronic and acute medical
conditions. The Company operated in two segments: BioScience and
Medication Delivery. It is engaged in the medical devices,
pharmaceuticals and biotechnology to create products that advance
patient care worldwide. These products are used by hospitals,
kidney dialysis centers, nursing homes, rehabilitation centers,
doctors' offices, clinical and medical research laboratories, and
by patients at home under physician supervision. Baxter
manufactures products in 27 countries and sells the products in
more than 100 countries. In September 2013, Baxter International
Inc completed the acquisition of Gambro AB.
BIG 5 SPORTING GOODS: Agreed With Plaintiffs to Settle Lawsuit
--------------------------------------------------------------
Big 5 Sporting Goods Corporation has agreed with plaintiffs to
settle a lawsuit alleging violations of the California Civil Code,
negligence, invasion of privacy and unlawful intrusion, according
to the Company's Form 10-Q filed on October 30, 2013, with the
U.S. Securities and Exchange Commission for the quarterly period
ended September 29, 2013.
The Company was served on the following dates with the following
nine complaints, each of which was brought as a purported class
action on behalf of persons who made purchases at the Company's
stores in California using credit cards and were requested or
required to provide personal identification information at the
time of the transaction:
(1) on February 22, 2011, a complaint filed in the California
Superior Court in the County of Los Angeles, entitled Maria
Eugenia Saenz Valiente v. Big 5 Sporting Goods Corporation, et
al., Case No. BC455049;
(2) on February 22, 2011, a complaint filed in the California
Superior Court in the County of Los Angeles, entitled Scott
Mossler v. Big 5 Sporting Goods Corporation, et al., Case No.
BC455477;
(3) on February 28, 2011, a complaint filed in the California
Superior Court in the County of Los Angeles, entitled Yelena
Matatova v. Big 5 Sporting Goods Corporation, et al., Case No.
BC455459;
(4) on March 8, 2011, a complaint filed in the California
Superior Court in the County of Los Angeles, entitled Neal T.
Wiener v. Big 5 Sporting Goods Corporation, et al., Case No.
BC456300;
(5) on March 22, 2011, a complaint filed in the California
Superior Court in the County of San Francisco, entitled Donna
Motta v. Big 5 Sporting Goods Corporation, et al., Case No. CGC-
11-509228;
(6) on March 30, 2011, a complaint filed in the California
Superior Court in the County of Alameda, entitled Steve Holmes v.
Big 5 Sporting Goods Corporation, et al., Case No. RG11563123;
(7) on March 30, 2011, a complaint filed in the California
Superior Court in the County of San Francisco, entitled Robin
Nelson v. Big 5 Sporting Goods Corporation, et al., Case No. CGC-
11-508829;
(8) on April 8, 2011, a complaint filed in the California
Superior Court in the County of San Joaquin, entitled Pamela B.
Smith v. Big 5 Sporting Goods Corporation, et al., Case No. 39-
2011-00261014-CU-BT-STK; and
(9) on May 31, 2011, a complaint filed in the California
Superior Court in the County of Los Angeles, entitled Deena
Gabriel v. Big 5 Sporting Goods Corporation, et al., Case No.
BC462213.
On June 16, 2011, the Judicial Council of California issued an
Order Assigning Coordination Trial Judge designating the
California Superior Court in the County of Los Angeles as having
jurisdiction to coordinate and to hear all nine of the cases as
Case No. JCCP4667. On October 21, 2011, the plaintiffs
collectively filed a Consolidated Amended Complaint, alleging
violations of the California Civil Code, negligence, invasion of
privacy and unlawful intrusion. The plaintiffs allege, among other
things, that customers making purchases with credit cards at the
Company's stores in California were improperly requested to
provide their zip code at the time of such purchases.
The plaintiffs seek, on behalf of the class members, the
following: statutory penalties; attorneys' fees; expenses;
restitution of property; disgorgement of profits; and injunctive
relief. In an effort to negotiate a settlement of this litigation,
the Company and plaintiffs engaged in Mandatory Settlement
Conferences conducted by the court on February 6, 2013, February
19, 2013, April 2, 2013, September 12, 2013, and September 20,
2013, and also engaged in mediation conducted by a third party
mediator on July 15, 2013. As a result of the foregoing, the
parties agreed to settle the lawsuit. The settlement has not yet
been submitted to the court for preliminary approval or final
approval. Under the terms of the settlement, the Company agreed
that class members who submit valid and timely claim forms will
receive either a $25 gift card (with proof of purchase) or a $10
merchandise voucher (without proof of purchase). Additionally, the
Company agreed to pay plaintiff's attorneys' fees and costs
awarded by the court, enhancement payments to the class
representatives and claims administrator's fees. Under the
proposed settlement, if the total amount paid by the Company for
the class payout, class representative enhancement payments and
claims administrator's fees is less than $1.0 million, then the
Company will issue merchandise vouchers to a charity for the
balance of the deficiency in the manner provided in the settlement
agreement. The Company's estimated total cost pursuant to this
settlement is reflected in a legal settlement accrual recorded in
the third quarter of fiscal 2013. The Company admitted no
liability or wrongdoing with respect to the claims set forth in
the lawsuit. Once final approval is granted, the settlement will
constitute a full and complete settlement and release of all
claims related to the lawsuit. Based on the terms of the
settlement agreement, the Company currently believes that
settlement of this litigation will not have a material negative
impact on the Company's results of operations or financial
condition. However, if the settlement is not finally approved by
the court, the Company intends to defend this litigation
vigorously. If the settlement is not finally approved by the court
and this litigation is settled or resolved unfavorably to the
Company, this litigation and the costs of defending it could have
a material negative impact on the Company's results of operations
or financial condition.
Big 5 Sporting Goods Corporation is a sporting goods retailer in
the western United States, operating 414 stores in 12 states under
the Big 5 Sporting Goods name as of December 30, 2012. The Company
provides a product offering in a traditional sporting goods store
format that averages approximately 11,000 square feet. The
Company's product mix includes athletic shoes, apparel and
accessories, as well as a broad selection of outdoor and athletic
equipment for team sports, fitness, camping, hunting, fishing,
tennis, golf, snowboarding and roller sports. The Company's stores
carry a range of products from well brand name manufacturers,
including adidas, Coleman, Easton, New Balance, Nike, Reebok,
Spalding, Under Armour and Wilson. The Company purchases its
branded merchandise from a list of sporting goods equipment,
athletic footwear and apparel manufacturers.
BROWNING INT'L: Recalls Junior Hoodie Due to Strangulation
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The U.S. Consumer Product Safety Commission, in cooperation with
Browning, of Morgan, Utah, announced a voluntary recall of about
4,300 Browning Youth Buckmark Junior Hoodie Sweatshirts.
Consumers should stop using this product unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The hooded sweatshirts have drawstrings around the neck area that
pose a strangulation or an entanglement hazard to young children.
In February 1996, CPSC issued guidelines about drawstrings in
children's upper outerwear. In 1997, those guidelines were
incorporated into a voluntary standard. Then, in July 2011, based
on the guidelines and voluntary standard, CPSC issued a federal
regulation. CPSC's actions demonstrate a commitment to help
prevent children from strangling or getting entangled on neck and
waist drawstrings in upper outerwear, such as jackets and
sweatshirts.
There were no incidents that were reported.
The recall includes hooded Buckmark junior sweatshirts in sizes S,
M, L and XL. The sweatshirts are made of polyester fabric. The
camouflaged print pullover sweatshirt comes with black drawstrings
and has a yellow embroidered Buckmark logo located on the front of
the garment. There are pockets located near the waist. The
sweatshirt has a hood, and rib knit cuffs and waist.
The affected SKU's included in the recall are:
Size SKU
---- ---
S 3011332001
M 3011332002
L 3011332003
XL 3011332004
Pictures of the recalled products are available at:
http://is.gd/5R35I4
The recalled products were manufactured in Bangladesh and sold
exclusively at Academy Sports + Outdoors stores and online at
http://www.academy.comfrom August 2012 through October 2013 for
about $28.
Consumers should immediately remove the drawstrings from the
hooded sweatshirts to eliminate the hazard or return the garment
to Browning for a full refund.
CANADA: Prairie Farmers May Appeal CWB Class Action Ruling
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Glenda Lee Allen and Kelvin Heppner, writing for PortageOnline,
report that the federal government is welcoming the Federal Court
decision to strike down six of seven claims in a class action
lawsuit over the end of the Canadian Wheat Board's single desk.
Four prairie farmers -- Andrew Dennis of Brookdale, Manitoba, Ian
McCreary of Bladworth, Saskatchewan, Nathan Macklin of DeBolt,
Alberta. and Harold Bell of Fort St. John, B.C. -- were seeking
$17 billion in damages from the federal government for ending the
wheat board monopoly in 2012, alleging the government expropriated
farmers' assets in the process.
"We are surprised that even though the court acknowledged farmers'
money had built and operated the Wheat Board since 1935,
Madam Justice Tremblay-Lamer still ruled the federal government
has the power to expropriate $17 billion dollars of value without
compensation," said former CWB director Stewart Wells, serving as
the spokesperson for Friends of the CWB, which supported the court
challenge. "It is especially disappointing when the $17 billion
value was never disputed by the federal lawyers or the court.
Farmers know who built and paid for Canadian Wheat Board assets."
Agriculture Minister Gerry Ritz welcomed the judge's ruling,
rejecting Wells' statement.
"They talk about all these assets that have been stolen away from
farmers. Nothing could be further from the truth," said Mr. Ritz.
"If that was the case, Canadian taxpayers wouldn't have had to
come forward with $350 million to wind down the CWB. The
building, the railcars were all heavily leveraged. The ships
weren't paid for -- there was a deposit and that's it. This
argument that somehow all of these things were of such great value
is complete bunk."
The judge told the plaintiffs they can file a revised statement of
claim focusing specifically on whether restructuring costs
impacted pool payments to farmers in the 2011-12 crop year.
"She has allowed it to move forward on some of the management
things that were done, and of course, Mr. Wells himself was part
of that management, so I'm not sure how they're going to end up
suing themselves in that regard," said Mr. Ritz.
Mr. Wells added the four farmers might file an appeal.
"The plaintiffs do have the option of appealing the entire ruling
and sending it back with the hopes of having this ruling
overturned, again making the case that the government has
expropriated property from farmers without adequate compensation,"
he said.
CLECO CORPORATION: Review on LPSC Ruling Remains Pending
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In its Form 10-Q filed on October 30, 2013, with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013, Cleco Corporation reported that the review on
a so-called LPSC ruling in the Company's favor that it had
properly charged the ratepayers of Opelousas is pending before the
19th Judicial District Court for East Baton Rouge Parish, State of
Louisiana.
In May 2010, a second class action lawsuit was filed in the 27th
Judicial District Court for St. Landry Parish, State of Louisiana,
repeating the allegations of the first complaint, which was
submitted on behalf of 249 Opelousas residents.
In January 2011, the presiding judge in the state court proceeding
ruled that the jurisdiction to hear the two class actions resides
in the state court and not with the LPSC as argued by both Cleco
and the LPSC Staff. Both Cleco and the LPSC Staff appealed this
ruling to the Third Circuit Court of Appeals for the State of
Louisiana (Third Circuit). In September 2011, the Third Circuit
denied both appeals. In October 2011, both Cleco and the LPSC
appealed the Third Circuit's ruling to the Louisiana Supreme
Court.
In February 2011, the administrative law judge (ALJ) in the LPSC
proceeding ruled that the LPSC has jurisdiction to decide the
claims raised by the class action plaintiffs. At its December 2011
Business and Executive Session, the LPSC adopted the ALJ's
recommendation that Cleco be granted summary judgment in its
declaratory action finding that Cleco's ratepayers in the City of
Opelousas have been served under applicable rates and policies
approved by the LPSC and Cleco's Opelousas ratepayers have not
been overcharged in connection with LPSC rates or ratemaking.
In January 2012, the class action plaintiffs filed their appeal of
such LPSC decision to the 19th Judicial District Court. In
December 2012, the Louisiana Supreme Court issued its opinion
accepting Cleco's jurisdictional arguments and dismissed the state
court claims.
The only matter remaining is before the 19th Judicial District
Court to review the LPSC ruling in Cleco's favor that it had
properly charged the ratepayers of Opelousas.
In view of the uncertainty of the claims, management is not able
to predict or give a reasonable estimate of the possible range of
liability, if any, of these claims. However, if it is found that
Cleco Power overcharged customers resulting in a refund, any such
refund could have a material adverse effect on the Registrants'
results of operations, financial condition, and cash flows.
Cleco Corporation (Cleco) is a public utility holding company
which holds investments in several subsidiaries, including Cleco
Power LLC and its subsidiaries (Cleco Power) and Cleco Midstream
Resources LLC (Midstream), which are its operating business
segments. Cleco Power is an electric utility engaged principally
in the generation, transmission, distribution and sale of
electricity within Louisiana. Cleco Power serves approximately
281,000 customers in Louisiana through its retail business and 10
communities across Louisiana and Mississippi through wholesale
power contracts. Midstream is a merchant energy subsidiary that
owns and operates a merchant power plant (Coughlin). As of
December 31, 2011, Cleco Corporation, through two wholly owned
subsidiaries, owned one transmission substation in Louisiana and
one transmission substation in Mississippi. As of December 31,
2011, Cleco Power's aggregate net electric generating capacity was
2,488 megawatt.
COMCAST CORP: Seeks to Dismiss Motion to Certify New Class
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Comcast Corporation in September 2013 moved to strike a motion
filed by a plaintiff in the so-called Philadelphia Cluster case to
certify a new class, according to the Company's Form 10-Q filed on
October 30, 2013, with the U.S. Securities and Exchange Commission
for the quarterly period ended September 30, 2013.
The Company states: "We are defendants in two purported class
actions originally filed in December 2003 in the United States
District Courts for the District of Massachusetts and the Eastern
District of Pennsylvania. The potential class in the Massachusetts
case, which has been transferred to the Eastern District of
Pennsylvania, is our customer base in the "Boston Cluster" area,
and the potential class in the Pennsylvania case is our customer
base in the "Philadelphia and Chicago Clusters," as those terms
are defined in the complaints. In each case, the plaintiffs allege
that certain customer exchange transactions with other cable
providers resulted in unlawful horizontal market restraints in
those areas and seek damages under antitrust statutes, including
treble damages.
Classes of Chicago Cluster and Philadelphia Cluster customers were
certified in October 2007 and January 2010, respectively.
According to the Company, "We appealed the class certification in
the Philadelphia Cluster case to the Third Circuit Court of
Appeals, which affirmed the class certification in August 2011 and
denied our petition for a rehearing en banc in September 2011. In
March 2010, we moved for summary judgment dismissing all of the
plaintiffs' claims in the Philadelphia Cluster. In April 2012, the
District Court issued a decision dismissing some of the
plaintiffs' claims, but allowing two claims to proceed to trial.
The plaintiffs' claims concerning the other two clusters are
stayed pending determination of the Philadelphia Cluster claims.
In June 2012, the U.S. Supreme Court granted our petition to
review the Third Circuit Court of Appeals' ruling and in September
2012, the trial court stayed all proceedings pending resolution of
the Supreme Court appeal. In March 2013, the Supreme Court ruled
that the class had been improperly certified and reversed the
judgment of the Third Circuit. The matter has been returned to the
District Court for action consistent with the Supreme Court's
opinion. In August 2013, a plaintiff in the Philadelphia Cluster
case moved to certify a new class, and in September 2013, we moved
to strike that motion on procedural grounds."
Comcast Corporation (Comcast) is a provider of entertainment,
information and communications products and services. The Company
operates in five segments: Cable Communications provides video,
high-speed Internet and voice services (cable services) to
residential and business customers; Cable Networks consists
primarily of its national cable television networks, its regional
sports and news networks, its international cable networks, its
cable television production studio, and its related digital media
properties; Broadcast Television consists primarily of its NBC and
Telemundo broadcast networks, its NBC and Telemundo owned local
television stations, its broadcast television production
operations, and its related digital media properties; Filmed
Entertainment consists of the operations of Universal Pictures.,
and Theme Parks consists primarily of its Universal theme parks in
Orlando and Hollywood. Effective March 19, 2013, it acquired a 49%
interest in NBCUniversal Media LLC.
COMCAST CORPORATION: Submitted Settlement Agreement for 23 Cases
----------------------------------------------------------------
Comcast Corporation in June 2013 submitted to the District Court
for preliminary approval a comprehensive settlement agreement for
23 cases alleging that the Company improperly "tie" the rental of
set-top boxes to the provision of premium cable services in
violation of Section 1 of the Sherman Antitrust Act, various state
antitrust laws and unfair/deceptive trade practices acts in
California, Illinois and Alabama, according to the Company's Form
10-Q filed on October 30, 2013, with the U.S. Securities and
Exchange Commission for the quarterly period ended September 30,
2013.
The Company states: "We are the defendant in 22 purported class
actions filed in federal district courts throughout the country.
All of these actions have been consolidated by the Judicial Panel
on Multidistrict Litigation in the United States District Court
for the Eastern District of Pennsylvania for pre-trial
proceedings. In a consolidated complaint filed in November 2009 on
behalf of all plaintiffs in the multidistrict litigation, the
plaintiffs allege that we improperly "tie" the rental of set-top
boxes to the provision of premium cable services in violation of
Section 1 of the Sherman Antitrust Act, various state antitrust
laws and unfair/deceptive trade practices acts in California,
Illinois and Alabama. The plaintiffs also allege a claim for
unjust enrichment and seek relief on behalf of a nationwide class
of our premium cable customers and on behalf of subclasses
consisting of premium cable customers from California, Alabama,
Illinois, Pennsylvania and Washington. In January 2010, we moved
to compel arbitration of the plaintiffs' claims for unjust
enrichment and violations of the unfair/deceptive trade practices
acts of Illinois and Alabama. In September 2010, the plaintiffs
filed an amended complaint alleging violations of additional state
antitrust laws and unfair/deceptive trade practices acts on behalf
of new subclasses in Connecticut, Florida, Minnesota, Missouri,
New Jersey, New Mexico and West Virginia. In the amended
complaint, plaintiffs omitted their unjust enrichment claim, as
well as their state law claims on behalf of the Alabama, Illinois
and Pennsylvania subclasses. In June 2011, the plaintiffs filed
another amended complaint alleging only violations of Section 1 of
the Sherman Antitrust Act, antitrust law in Washington and
unfair/deceptive trade practices acts in California and
Washington."
"The plaintiffs seek relief on behalf of a nationwide class of our
premium cable customers and on behalf of subclasses consisting of
premium cable customers from California and Washington. In July
2011, we moved to compel arbitration of most of the plaintiffs'
claims and to stay the remaining claims pending arbitration. The
West Virginia Attorney General also filed a complaint in West
Virginia state court in July 2009 alleging that we improperly
"tie" the rental of set-top boxes to the provision of digital
cable services in violation of the West Virginia Antitrust Act and
the West Virginia Consumer Credit and Protection Act. The Attorney
General also alleges a claim for unjust enrichment/restitution. We
removed the case to the United States District Court for West
Virginia, and it was subsequently transferred to the United States
District Court for the Eastern District of Pennsylvania and
consolidated with the multidistrict litigation described above. In
June 2013, a comprehensive settlement agreement for all 23 cases
was submitted to the District Court for preliminary approval.
Regardless of whether this settlement agreement is approved, we do
not expect these cases to have a material effect on our results of
operations, cash flows or financial position.
"We believe the claims in each of the pending actions described
above in this item are without merit and intend to defend the
actions vigorously. We cannot predict the outcome of any of the
actions described above, including a range of possible loss, or
how the final resolution of any such actions would impact our
results of operations or cash flows for any one period or our
financial position. In addition, as any action nears a trial,
there is an increased possibility that the action may be settled
by the parties. Nevertheless, the final disposition of any of the
above actions is not expected to have a material adverse effect on
our consolidated financial position, but could possibly be
material to our consolidated results of operations or cash flows
for any one period."
Comcast Corporation (Comcast) is a provider of entertainment,
information and communications products and services. The Company
operates in five segments: Cable Communications provides video,
high-speed Internet and voice services (cable services) to
residential and business customers; Cable Networks consists
primarily of its national cable television networks, its regional
sports and news networks, its international cable networks, its
cable television production studio, and its related digital media
properties; Broadcast Television consists primarily of its NBC and
Telemundo broadcast networks, its NBC and Telemundo owned local
television stations, its broadcast television production
operations, and its related digital media properties; Filmed
Entertainment consists of the operations of Universal Pictures.,
and Theme Parks consists primarily of its Universal theme parks in
Orlando and Hollywood. Effective March 19, 2013, it acquired a 49%
interest in NBCUniversal Media LLC.
CON-WAY INC: "Quezada" Case Trial Scheduled for April 2014
----------------------------------------------------------
In its Form 10-Q filed on October 30, 2013, with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013, Con-way Inc., reported that the trial for the
Jorge R. Quezada v. Con-way Inc., case is currently scheduled for
April 2014.
Con-way is a defendant in several class action lawsuits alleging
violations of the state of California's wage and hour laws.
Plaintiffs allege that Con-way failed to pay certain drivers for
all compensable time and that certain other drivers were not
provided with required meal breaks and rest breaks. Plaintiffs
seek to recover unspecified monetary damages, penalties, interest
and attorneys' fees. The two primary cases are Jorge R. Quezada v.
Con-way Inc., dba Con-way Freight, (the "Quezada" case), and Jose
Alberto Fonseca Pina, et al, v. Con-way Freight Inc., et al. (the
"Pina" case). The Quezada case was initially filed in February
2009 in San Mateo County Superior Court, and was removed to the
U.S. District Court of California, Northern District. The Pina
case was initially filed in November 2009 in Monterey County
Superior Court and was removed to the U.S. District Court of
California, Northern District. By agreement of the parties, in
March 2010, the Pina case and the Quezada case were deemed related
and transferred to the same judge. On April 12, 2012, the Court
granted plaintiff's request for class certification in the Pina
case as to a limited number of issues. On October 15, 2012, the
Court granted plaintiffs' request for class certification in the
Quezada case and granted summary judgment as to certain issues.
The class certification rulings do not address whether Con-way
will ultimately be held liable. In the Quezada case, trial is
currently scheduled for April 2014. Con-way continues to challenge
the certification of the class, and further contends that
plaintiffs' claims are pre-empted by federal law. Con-way has
denied any liability with respect to these claims and intends to
vigorously defend itself in these cases. There are multiple
factors that prevent Con-way from being able to estimate the
amount of potential loss, if any, in excess of its accrued
liability that may result from this matter, including: (1) Con-way
is vigorously defending itself and believes that it has a number
of meritorious legal defenses; and (2) at this early stage in the
cases, there are unresolved questions of law and fact that could
be important to the resolution of these matters. Accordingly, Con-
way cannot estimate the amount or range of potential loss, if any,
in excess of its accrued liability.
Con-way Inc. and its subsidiaries (Con-way) provides
transportation, logistics and supply-chain management services for
a range of manufacturing, industrial and retail customers. Con-
way's business units operate in regional and transcontinental
less-than-truckload and full-truckload freight transportation,
contract logistics and supply-chain management, multimodal freight
brokerage, and trailer manufacturing. Con-way operates in four
segments: Freight, Logistics, Truckload and Other. The Freight
segment consists of the operating results of the Con-way Freight
business unit. During the year ended December 31, 2012, Con-way
Freight's average weight per shipment was 1,326 pounds. The
Logistics segment consists of the operating results of the Menlo
Worldwide Logistics business unit. The Truckload segment consists
of the operating results of the Con-way Truckload business unit.
The Other reporting segment consists of the operating results of
Road Systems, a trailer manufacturer.
CRACKER BARREL: Former Employee Files Wage Class Action
-------------------------------------------------------
John O'Brien, writing for The West Virginia Record, reports that a
former Cracker Barrel employee has filed a class action lawsuit
against the restaurant, alleging it did not pay its former
employees their final wages in a timely manner.
The lawsuit, filed by Mary F. Cyrus in Ohio County Circuit Court
on Dec. 9, says Cracker Barrel violated the West Virginia Wage
Payment and Collection Act. Cyrus was a retail manager until she
was fired on Feb. 9.
"Defendant failed to Plaintiff and other similarly-situated Class
members their employment wages in full within the time periods
mandated by the WPCA for discharged employees," the complaint
says.
"Defendant's actions violated the WPCA entitling Plaintiff and
other similarly-situated class members to treble damages and to
attorneys' fees and costs . . ."
The plaintiff is represented by Todd S. Bailess --
bailesslaw@gmail.com -- and Joy B. Mega of Bailess Law in
Charleston.
The complaint says the plaintiff reserves the right to refine the
class definition after discovery takes place. For now, it is
defined as "All persons formerly employed by the Defendant in West
Virginia who were discharged and not paid all wages timely at any
time five years prior to the filing of this Complaint through
class certification."
In addition to the complaint, the plaintiff filed a motion for
class certification on Dec. 9. It asks that Cyrus be appointed
class representative and Bailess Law and Bailey & Glasser be named
class counsel.
It also requests a briefing schedule on the motion.
CYTOSPORT INC: "Delacruz" Suit Settlement Gets Initial Approval
---------------------------------------------------------------
District Judge Claudia Wilken entered an amended order
preliminarily approving a class action settlement, and
provisionally certifying a nationwide settlement class in the
lawsuit captioned CLAIRE DELACRUZ, individually, and on behalf of
other members of the general public similarly situated, Plaintiff,
v. CYTOSPORT, INC., a California Corporation, Defendant, CASE NO.
4:11-CV-03532-CW, (N.D. Cal.).
The Court conditionally certifies, for settlement purposes only: a
class of all persons who purchased one or more Muscle Milk(R)
Ready-to-Drink beverages (the "RTD") and/or Muscle Milk(R) bars
(the "Bar," together with the RTD, the "Products") at retail in
the United States from July 18, 2007 through December 31, 2012
(the "Settlement Class"). Excluded from the Settlement Class are
all persons who are employees, directors, officers, and/or agents
of CytoSport or its subsidiaries and affiliated companies, as well
as the Court and its immediate family and staff.
The Court appoints the law firm of Baron & Budd, P.C. as counsel
for the Class.
The Court designates named Plaintiff Claire Delacruz as the
representative of the Settlement Class.
The Final Fairness Hearing will be held May 15, 2014, at 2:00 p.m.
to determine whether the First Amended Settlement Agreement and
Release is fair, reasonable, and adequate and should receive final
approval.
Settlement Class Members have until March 12, 2014, to submit
their Claim Forms.
A copy of the District Court's November 18, 2013 Amended Order is
available at http://is.gd/HE4Xojfrom Leagle.com.
BARON & BUDD, P.C. ROLAND TELLIS -- rtellis@baronbudd.com -- SBN
186269 MARK PIFKO -- mpifko@baronbudd.com -- SBN 228412 Encino,
CA, Attorneys for Plaintiff CLAIRE DELACRUZ individually, and on
behalf of other members of the public similarly situated.
GIBSON, DUNN & CRUTCHER LLP G. CHARLES NIERLICH --
nierlich@gibsondunn.com -- SBN 196611 TIMOTHY W. LOOSE --
tloose@gibsondunn.com -- SBN 241037 MATTHEW L. BERDE --
mberde@gibsondunn.com -- SBN 260615 San Francisco, CA, Attorneys
for Defendant CYTOSPORT, INC., a California Corporation.
ELI LILLY: Named as Defendant in Product Liability Claims
---------------------------------------------------------
A putative class action was filed against Eli Lilly and Company
and other manufacturers seeking to assert product liability claims
on behalf of U.S. residents who ingested propoxyphene pain
products and allegedly sustained personal injuries, according to
the Company's Form 10-Q filed on October 30, 2013, with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013.
The Company states: "We are currently a defendant in a variety of
other product liability lawsuits in the U.S. involving primarily
Darvon(R), Zyprexa, Actos(R), and Cymbalta.
"Along with several other manufacturers, we are named as a
defendant in approximately 65 active cases in the U.S. involving
approximately 1,700 active claimants related to claims that the
analgesics Darvon and related formulations of propoxyphene
contributed to various cardiac injuries. Additionally,
approximately 80 cases involving approximately 225 claimants were
recently dismissed and are on appeal to the Sixth Circuit. Almost
all of the active cases have been consolidated in a federal multi-
district litigation in the Eastern District of Kentucky or are
pending in a coordinated state court proceeding in California. A
putative class action was filed in the U.S. District Court for the
Eastern District of Louisiana (Ballard, et al. v. Eli Lilly and
Company et al.) against Lilly and other manufacturers seeking to
assert product liability claims on behalf of U.S. residents who
ingested propoxyphene pain products and allegedly sustained
personal injuries. Lilly and the remaining defendants were
dismissed with prejudice on a dispositive motion, and a final
appealable order was entered. We transferred the U.S. regulatory
approvals and all marketing rights to our propoxyphene products in
2002 to NeoSan Pharmaceuticals, Inc. (an affiliate of aaiPharma,
Inc.), which subsequently transferred all such approvals and
marketing rights to Xanodyne Pharmaceuticals, Inc. We believe
these claims are without merit and are prepared to defend against
them vigorously."
Eli Lilly and Company discovers, develops, manufactures, and sells
products, in one business segment, pharmaceutical products. The
Company also has an animal health business segment. It
manufactures and distributes its products through facilities in
the United States, Puerto Rico, and 15 other countries. Its
products are sold in approximately 130 countries. The Company's
products include neuroscience products, endocrinology products,
oncology products, cardiovascular products, animal health products
and other pharmaceuticals. The Company's new molecular entities
(NMEs), which are in Phase III clinical trial testing include
Dulaglutide, Edivoxetine, Ixekizumab, Necitumumab, New insulin
glargine product, Novel basal insulin analog, Pomaglumetad
Methionil, Ramucirumab, Solanezumab and Tabalumab. In February
2012, the Company acquired ChemGen Corp. On July 7, 2011, it
acquired the animal health business of Janssen, a Johnson &
Johnson company.
EXTRA SPACE: Court Denies Class Cert. Bid in "Curtis" Suit
----------------------------------------------------------
District Judge William Alsup denied approval of a motion for class
certification filed in the case captioned TIFFANY CURTIS, on
behalf of herself and all persons similarly situated, Plaintiff,
v. EXTRA SPACE STORAGE, INC., a Maryland corporation, EXTRA SPACE
MANAGEMENT, INC., a Utah corporation, and DOES 1 through 100,
inclusive, Defendants, NO. C 13-00319 WHA, (N.D. Cal.).
The lawsuit involves the auctioning of goods by a self-storage
facility. Ms. Curtis alleged violations of (1) Section 21700 and
17200 of the California Business and Professions Code; (2)
violations of California's Unfair Competition Law; and (3) of the
Racketeer and Corrupt Organizations Act of 1970 (RICO).
According to Judge Alsup, individual issues predominate. The
plaintiff also fails to demonstrate a reliable method to compute
damages class-wide, he added.
Although a class has not been certified, the action will proceed
as to plaintiff's individual claims in accord with the deadlines
previously set in the case management order, ruled Judge Alsup.
A copy of the District Court's November 18, 2013 Order is
available at http://is.gd/eO8736from Leagle.com.
FARMERS INSURANCE: Dist. Court Judgment in Countryman Suit Upheld
-----------------------------------------------------------------
The United States Court of Appeals for the Tenth Circuit affirmed
a district court judgment in the case captioned LAWRENCE
COUNTRYMAN, on behalf of himself and all others similarly
situated, Plaintiff-Appellant, v. FARMERS INSURANCE EXCHANGE, an
insurer, and owner of MID-CENTURY INSURANCE COMPANY, a California
corporation; MID-CENTURY INSURANCE COMPANY, a California company,
Defendants-Appellees, NO. 12-1456.
Colorado enacted a statute in 2008 that requires motor vehicle
liability insurance policies to include coverage for medical
payments. The case asks the Tenth Circuit to determine whether
this statute forbids an insurer from limiting such coverage to two
years.
"We conclude that the statutory language, though ambiguous, is
more amenable to allowing time limits than prohibiting them. The
legislative history leans in the same direction. The multiple
public policy considerations lend support to both sides but do not
determine the issue. We therefore hold that Defendants' policy
does not violate Colorado's Med-pay statute, C.R.S. [Section]
10-4-635(2)(a), ruled Circuit Judge Scott M. Matheson, Jr.
A copy of the Tenth Circuit's November 18, 2013 Order and Judgment
is available at http://is.gd/PLakglfrom Leagle.com.
FLAGSTAR BANCORP: Court Denies Request to Dismiss RESPA Complaint
-----------------------------------------------------------------
A U.S. federal court on June 27, 2013, denied Flagstar Bancorp,
Inc.'s and its subsidiary, Flagstar Reinsurance Company's motion
to dismiss an amended complaint, which alleged a violation of
Section 2607 of the Real Estate Settlement Procedures Act based
upon the statute of limitations and equitable tolling, according
to the Company's Form 10-Q filed on October 30, 2013, with the
U.S. Securities and Exchange Commission for the quarterly period
ended September 30, 2013.
In May 2012, the Bank and its subsidiary, Flagstar Reinsurance
Company, were named as defendants in a putative class action
lawsuit filed in the U.S. District Court for the Eastern District
of Pennsylvania, alleging a violation of Section 2607 of the Real
Estate Settlement Procedures Act ("RESPA"). Section 2607(a) of
RESPA generally prohibits anyone from "accept[ing] any fee,
kickback or thing of value pursuant to any agreement or
understanding, oral or otherwise, that business related incident
to or part of a real estate settlement service involving a
federally related mortgage loan shall be referred to any person."
Section 2607(b) of RESPA also prohibits anyone from "accept[ing]
any portion, split, or percentage of any charge made or received
for the rendering of a real estate settlement service in
connection with a federally related mortgage loan other than for
services actually performed." The lawsuit specifically alleges
that the Bank and Flagstar Reinsurance Company violated Section
2607 of RESPA through a captive reinsurance arrangement involving
(i) allegedly illegal payments to Flagstar Reinsurance Company for
the referral of private mortgage insurance business from the Bank
to private mortgage insurers to Flagstar Reinsurance Company and
(ii) Flagstar Reinsurance Company's purported receipt of an
unlawful split of private mortgage insurance premiums. In January
2013, the plaintiffs filed a First Amended Complaint identifying
new plaintiffs. On June 27, 2013, the court denied the Bank's and
Flagstar Reinsurance's motion to dismiss the First Amended
Complaint based upon the statute of limitations and equitable
tolling. The parties are in the process of completing limited
discovery. At the conclusion of the limited discovery, the Court
said it would entertain dispositive motions, and the Company
intends to re-file a motion to dismiss the First Amended
Complaint.
Flagstar Bancorp, Inc., the holding company for Flagstar Bank, FSB
(the "Bank") is a Michigan-based savings and loan holding company
founded in 1993. The Company's business is primarily conducted
through its principal subsidiary, the Bank, a federally chartered
stock savings bank founded in 1987. At September 30, 2013, the
Company's total assets were $11.8 billion. The Company has the
largest bank headquartered in Michigan, one of the ten largest
savings banks in the United States.
FOX FACTORY: Recalls Evolution Mountain Bike Suspension Forks
-------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Fox Factory, of Watsonville, Calif., announced a voluntary recall
of about 11,250 in the U.S. and 1,250 in Canada Evolution 2013
Mountain Bike Suspension Forks. Consumers should stop using this
product unless otherwise instructed. It is illegal to resell or
attempt to resell a recalled consumer product.
The suspension fork's damper cylinder/piston can separate and
cause the front wheel to detach, posing a fall hazard.
Fox received one report of an incident resulting in shoulder
injuries in Italy.
The recalled suspension forks are model year 2013, 32 and 34
Evolution Series with 120mm to 160mm of travel. The Evolution
name and logo are on a sticker on the front fork with the FOX
brand name logo. Recalled forks can be identified by the serial
number, which is found on the underside of the crown after
removing the front wheel. The forks were sold as original
equipment on some of the following 2013 model year mountain bikes:
BMC, Cannondale, Commencal, Diamondback, GT, Kona, Lapierre,
Norco, Orbea, Raleigh, Rocky Mountain, Santa Cruz, Scott,
Specialized and Trek. A small quantity of suspension forks were
sold to retailers or distributors as aftermarket accessories.
Pictures of the recalled products are available at:
http://is.gd/T6dWIl
The recalled products were manufactured in United States and sold
at bicycle retailers nationwide between August 2012 and October
2013 as original equipment on bicycles priced from about $2,000 to
$4,400. Products sold for aftermarket use for about $600 to $650.
Consumers should stop using the bicycles with recalled Fox Factory
suspension forks and bring them to the place of purchase for a
free repair. Consumers can check their serial number at
http://www.ridefox.com/,see the link at the lower left of the
page, or contact Fox for assistance with discerning whether their
bicycle has the recalled product and for instructions on how to
return the recalled product and receive the free repair if they
cannot bring their bicycle or fork to the place of purchase.
FRANKLIN, TN: Property Owners to Join Suit Over New Sewer Lines
---------------------------------------------------------------
Kevin Walters, writing for The Tennessean, reports that about 180
Franklin property owners were set to get notice that they're part
of a class-action lawsuit against the city centering on liens that
Franklin put on properties to pay for new sewer lines.
Since 2008, more than $1.65 million was spent installing new sewer
lines for five neighborhoods -- Highgate, Hooper Lane, Monticello,
Country Road and Boyd Mill Avenue -- that before being annexed
into the city had homes on septic tank systems that, in some
cases, had begun to fail.
To pay for adding new sanitary sewer lines, Franklin created its
first "special assessment districts" for each affected
neighborhood, charging homeowners a share of the cost of the
construction work. All five of the projects have since been
completed.
Franklin couple Samuel and Jennifer Clarke, who live on Jefferson
Drive in the Monticello subdivision, contend that Franklin
officials violated state law by filing liens for the full amount
of the assessments instead of charging a lien based on what
homeowners might owe annually for their share of the work, court
records claim.
As part of the agreement, the 108 Monticello homeowners have 20
years to pay back their shares of a $1.05 million construction
project. The Monticello subdivision was the most expensive.
Because of the city's lien for the full amount, the Clarkes claim
in their filings, they could not refinance their mortgage, a move
they say would have saved them "hundreds of dollars" in monthly
mortgage payments. The Clarkes say that they're not alone and
that other homeowners living in special assessment districts have
also been negatively affected by the structure of the city's lien
filings.
"(The Clarkes) are also aware of other similarly situated
individuals who have either been prevented from refinancing, or
actually sold their homes and as part of the transaction had to
pay off the entire amount of the special assessment in order to
pass clean title onto the new homeowners," according to the
lawsuit. "This too resulted in the loss of thousands of dollars
for those homeowners who were forced to accelerate payment of a
lien that should have been paid annually for the next 20 years."
City refutes claims
The city's attorneys want the case dismissed and refute the
Clarkes' claims. They say Franklin isn't breaking any regulations
in how the amounts of liens for the assessments are listed on
property records.
"The city did the assessment district in Monticello to the
benefit, and at the request, of the residents," City Administrator
Eric Stuckey said. "We feel that we're following the law to the
'T.' "
The city quoted state regulations that "each improvement
assessment . . . shall constitute a lien upon the lot or parcel of
benefited property against which it is assessed. The lien shall
attach to each lot or parcel at the time the annual improvement
assessment is made, and then shall take precedence over all other
liens . . . and special assessments."
As for the inability of the Clarkes to refinance their home
mortgage, Franklin officials say that's a matter left for
homeowners and their financial companies.
The lawsuit adds another wrinkle to what has become a years-long
process to establish special assessment districts.
To curb some of the public outcry, Franklin waived portions of its
costs for the homeowners, such as planning and engineering costs
in four out of the five assessment districts. However, Monticello
residents questioned whether Franklin officials did enough in 2009
to pursue American Recovery and Reinvestment Act money that could
have reduced the bills. City officials said they did everything
they could but were unable to secure the federal funds.
Franklin officials say the lawsuit is ultimately a matter of
interpretation of the regulations.
"We have the right to file notices of liens, and we have the right
to collect the full amount of liens," said Shauna Billingsley,
city attorney.
But attorney Gerard Stranch, who represents the Clarkes, said that
"thousands of dollars" are at stake when it comes to the potential
outcome of the case.
GARMIN LTD: Dropped as Defendant in "Meyers" Complaint
------------------------------------------------------
Brian Meyers on September 18, 2013, voluntarily dismissed Garmin
Ltd., as a defendant without prejudice from a putative class
action complaint alleging among other things, defective batteries,
according to the Company's Form 10-Q filed on October 30, 2013,
with the U.S. Securities and Exchange Commission for the quarterly
period ended September 28, 2013.
On August 13, 2013, Brian Meyers filed a putative class action
complaint against Garmin International, Inc., Garmin USA, Inc. and
Garmin Ltd. in the United States District Court for the District
of Kansas. Meyers alleges that lithium-ion batteries in certain
Garmin products are defective and alleges violations of the Kansas
Consumer Protection Act, breach of an implied warranty of
merchantability, breach of contract, unjust enrichment, breach of
express warranty and also requests declaratory relief that the
batteries are defective and must be covered by Garmin's
warranties. The complaint seeks an order for class certification,
a declaration that the batteries are defective, an order of
injunctive relief, payment of damages in an unspecified amount on
behalf of a putative class of all purchasers of certain Garmin
products, and an award of attorneys' fees.
On September 18, 2013 the plaintiff voluntarily dismissed Garmin
Ltd. as a defendant without prejudice. On September 30, 2013 the
remaining Garmin defendants filed a motion to dismiss all counts
of the complaint for failure to state a claim on which relief can
be granted. On October 18, 2013 the plaintiff filed an amended
complaint. Although there can be no assurance that an unfavorable
outcome of this litigation would not have a material adverse
effect on our operating results, liquidity, or financial position,
Garmin believes these claims are without merit and intends to
vigorously defend this action.
Garmin Ltd. (Garmin) is a provider of navigation, communication
and information devices and applications, which are enabled by
global positioning system (GPS) technology. Garmin designs,
develops, manufactures and markets a diverse family of hand-held,
portable and fixed-mount GPS-enabled products and other
navigation, communications and information products for the
automotive/mobile, outdoor, fitness, marine, and general aviation
markets. Garmin has four segments: Automotive/Mobile, Aviation,
Marine, Outdoor and Fitness. In September 2012, its subsidiary
acquired Nexus Marine AB, a designer and manufacturer of
instrumentation for the sailing and yachting market.
GLAXOSMITHKLINE: Fraudster Recruits Class Action Plaintiffs
-----------------------------------------------------------
Joseph N. DiStefano, writing for Philly.com, reports that when
plaintiff's lawyers ganged up on GlaxoSmithKline to sue the
company over the reported heart-attack risks of its diabetes drug
Avandia, a Norristown firm, Internet Technology Partnerships (ITP)
helped find potential clients, reports Bloomberg News.
Highlights: "ITP has ties to a network of websites including
MedRecallNews, ServicesToLawyers, and Pearl-Shucker.com, among
others. These companies do law firm marketing and identify
clients for mass-injury lawsuits against pharmaceutical
manufacturers.
"They're all operated by Jesse Levine of Norristown, Pa. Levine is
not an attorney. His line of work is known as lead generation:
Lawyers pay him for the names of alleged victims. He has rivals
with names such as All Your Leads Needs, Tort Law Group, Your Lead
Caller, Guaranteed Performance, and MassTortROI . . . The sites
are the hidden plumbers of the mass-tort industry, a web of
plaintiffs' attorneys, paid expert witnesses, and accountants who
annually pursue billions of dollars' worth of lawsuits against
companies that make drugs, chemicals, cars, and other products
. . .
"Levine employs 13 people full time in the Philadelphia suburbs
and supplements them with $4-an-hour contractors in the
Philippines. His workers sometimes gather names and personal data
that consumers provide to Levine websites. On other occasions,
the telemarketers use lists Levine purchases from consumer survey
firms that identify people who've purchased certain categories of
drugs. Levine's employees call the prospects, find out if they've
suffered side effects, and ask whether they'd like to sue . . . If
a consumer says yes and she's saved her medical paperwork, Levine
will sell her name to a plaintiffs' lawyer. Leads go for $500 to
$2,000 apiece . . .
"Levine, who advertises himself online as 'the Ambassador of
consumer advocacy,' has had a long and colorful career as a
financial consultant and marketer and comes to lead generation
with troubling baggage. He served two short stints in federal
prison on financial fraud convictions . . ."
GOOGLE INC: Court Approved Class C Shareholder Suit Settlement
--------------------------------------------------------------
The Delaware Court of Chancery on October 28, 2013, approved the
settlement entered into by Google Inc., its board of directors and
the plaintiffs in the class action captioned In Re: Google Inc.
Class C Shareholder Litigation, Civil Action No. 7469-CS,
according to the Company's Form 8-K dated October 28, 2013, filed
with with the U.S. Securities and Exchange Commission October 30,
2013.
Sections 2 and 3 of the Stipulation of Compromise and Settlement
that was previously filed with the Court of Chancery on August 2,
2013 contain the definitions and terms of the parties' proposed
settlement. The Court approved the terms as stipulated to by the
parties except that the Court (1) reduced the proposed award for
the plaintiffs' attorneys' fees and reimbursement of litigation
expenses from $25 million to $8.5 million, plus expenses; and (2)
asked the parties to clarify the language in Section 3.1(b)
regarding the legal standard to be applied to any judicial review
of any waiver, modification, amendment, or supplementation of the
Transfer Restriction Agreement. The parties plan to file a Revised
Stipulation of Compromise and Settlement with the Court shortly
and expect the Court to issue its Order and Final Judgment shortly
thereafter.
Google Inc. (Google) is a global technology company. The Company's
business is primarily focused around key areas, such as search,
advertising, operating systems and platforms, enterprise and
hardware products. The Company generates revenue primarily by
delivering online advertising. The Company provides its products
and services in more than 100 languages and in more than 50
countries, regions, and territories. The Company's Motorola
business consists of two segments: Mobile segment and Home
segment. The Mobile segment is focused on mobile wireless devices
and related products and services. The Home segment is focused on
technologies and devices that provide video entertainment services
to consumers by enabling subscribers to access a variety of
interactive digital television services. Effective September 16,
2013, Google Inc acquired Bump Technologies Inc. Effective October
22, 2013, Google Inc acquired FlexyCore, a developer of software.
INDEPENDENCE ENERGY: Court Ruling May Spur More TCPA Class Actions
------------------------------------------------------------------
Robert S. Friedman, Esq., and Shannon Z. Petersen, Esq., at
Sheppard, Mullin, Richter & Hampton LLP reports that a recent
decision by the U.S. Court of Appeals for the Second Circuit may
lead to a wave of class action litigation in New York under the
Telephone Consumer Protection Act. See Todd Bank v. Independence
Energy Grp. LLC, No. 13-1746-cv (2d Cir. Dec. 3, 2013).
The TCPA is a federal statute that imposes stiff statutory
penalties of $500 to $1,500 per violation regardless of any actual
damage. See 47 U.S.C. Sec. 227. The TCPA prohibits calls and
text messages to cell phones without prior express consent. It
also prohibits certain types of calls to residential lines and
certain types of faxes. Because of its statutory penalties, it
has become a favorite among the plaintiff's class action bar in
recent years, especially in California, Illinois, and Florida.
Its statutory penalties, on a class action basis over a four-year
period, are crushing -- at least $500,000 for 1,000 violations, $5
million for 10,000 violations, $50 million for 100,000 violations,
etc.
Until now, New York has received safe harbor from this storm under
state Civil Practice Law and Rule 901(b). That rule prohibits
class action claims for statutory damages in New York. Many
courts in New York, including the Second Circuit in 2008, applied
Rule 901(b) to bar TCPA class actions for statutory penalties in
that state. See, e.g., Bonhime v. Avaya, Inc., 547 F.3d 497, 502
(2008) ("federal courts should apply C.P.L.R. 901 (b) to putative
class actions brought for alleged TCPA violations").
In Bank, however, the Second Circuit has now reversed itself. It
did so based on the recent U.S. Supreme Court decision in Mims v.
Arrow Fin. Servs., LLC, 132 S. Ct. 140 (2012), which held that the
federal four year catch-all statute of limitations applies to TCPA
claims, and not any state law statute of limitations. The
confusion has been caused by Section 227(b)(3) of the TCPA, which
permits TCPA claims to be brought in state court "if otherwise
permitted by the laws or rules of the courts of a State." Until
Mims, many courts had interpreted this language to permit the
application of some state law to TCPA claims.
The U.S. Supreme Court has now imposed a more narrow
interpretation, which, according to the Second Circuit in Banks,
has "uprooted much of our TCPA jurisprudence." In Banks, the
Second Circuit has applied the reasoning of Mims to hold that New
York State Rule 901(b) no longer bars TCPA class actions for
statutory penalties.
As a result, defendants can expect to see many more TCPA class
actions filed in federal court in New York.
INTELIUS INC: Can't Compel Class Into Arbitration, 9th Cir. Ruled
-----------------------------------------------------------------
An online marketing company cannot compel arbitration in a class
action accusing a background-check Web site of illegally charging
users' credit cards for a "Family Safety Report," reports Tim Hull
at Courthouse News Service, citing a 9th Circuit ruling released
on December 16, 2013.
Lead plaintiff Donovan Lee filed a class action against Bellevue,
Wash.-based Intelius Inc. after discovering in 2009 that he'd been
charged $19.95 per month for a year for a "Family Safety Report"
that he'd purchased unknowingly after ordering a background check
on Itelius's Web site.
Lee and others claimed in Seattle District Court that they had not
ordered the report. They argued that, after they purchased a
background check from Intelius, they were directed to a new
webpage controlled by third-party Adaptive Marking that was,
according to the District Court, "designed to deceive."
Lee claimed that he had entered his e-mail address on the new Web
site as directed and clicked a "large orange Yes button," thinking
that this was next step in receiving the background report from
Intelius. In reality, he had by clicking the Yes button ordered a
seven-day free trial of a "Family Safety Report", and had agreed
to pay $19.95 per month until he canceled it.
Intelius sued Adaptive Marketing, which it had hired in 2007 to
drive customers to its Web site and which was, according to the
ruling, responsible for about 40 percent of Intelius's revenue.
Adaptive then moved to compel arbitration of the claims raised in
both the class action and Intelius's third-party suit.
U.S. District Judge Robert Lasnik denied the motion to compel, the
9th Circuit unanimously affirmed on December 16, 2013.
"When Lee entered his email address and clicked on the large
orange 'YES' button, he had completed his purchase of the
background check from Intelius but had not yet received a copy of
his promised report," wrote Judge William Fletcher for the three-
judge appeals panel. "He did not re-enter his credit card number
on the new webpage. The language on the 'YES' button told him
that the effect of clicking on that button would allow him to see
the report he had already purchased. The critical text on the new
webpage was written in small, light-colored print. We are
skeptical that, under such circumstances, Lee objectively
manifested assent to a contract."
The panel also concluded that "the webpage insufficiently
identified Adaptive, or an entity affiliated with Adaptive, as a
contracting party to support a conclusion that Lee entered into a
contract with Adaptive to purchase the Family Safety Report."
Judge Fletcher noted that the kind of sharing of customers' credit
card information that is the subject of this case has been illegal
since 2010 and the passage of the Restore Online Shoppers'
Confidence Act.
The Plaintiffs are represented by:
Andrew Neil Friedman, Esq.
Victoria S. Nugent, Esq.
Whitney R. Case, Esq.
COHEN MILSTEIN SELLERS & TOLL, PLLC
1100 New York Avenue, N.W.
Washington, DC 20005
Telephone: (202) 408-4600
E-mail: afriedman@cohenmilstein.com
vnugent@cohenmilstein.com
- and -
Mark Adam Griffin, Esq.
David J. Ko, Esq.
Karin B. Swope, Esq.
Harry Williams, Esq.
KELLER ROHRBACK LLP
1201 Third Avenue
Seattle, WA 98101-3029
Telephone: (206) 623-1900
E-mail: mgriffin@kellerrohrback.com
dko@kellerrohrback.com
kswope@kellerrohrback.com
hwilliams@kellerrohrback.com
- and -
F. Paul Bland, Jr., Esq.
PUBLIC JUSTICE, P.C.
1825 K Street
Washington, DC 20006
Telephone: (202) 797-8600
E-mail: pbland@publicjustice.net
The Defendants are represented by:
Tyler Lawrence Farmer, Esq.
Arthur W. Harrigan, Jr., Esq.
Christopher T. Wion, Esq.
CALFO HARRIGAN LEYH & EAKES LLP
999 Third Ave., Suite 4400
Seattle, WA 98104
Telephone: (206) 623-1700
Facsimile: (206) 623-8717
E-mail: tylerf@calfoharrigan.com
arthurh@calfoharrigan.com
- and -
Cori Gordon Moore, Esq.
Thomas L. Boeder, Esq.
PERKINS COIE LLP
1201 Third Avenue
Seattle, WA 98101-3099
Telephone: (206) 359-3849
Facsimile: (206) 359-4849
E-mail: CGMoore@perkinscoie.com
TBoeder@perkinscoie.com
- and -
Darrel J. Hieber, Esq.
Kevin James Minnick, Esq.
Jason D. Russell, Esq.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 South Grand Avenue
Los Angeles, CA 90071-3144
Telephone: (213) 687-5220
E-mail: darrel.hieber@skadden.com
kminnick@skadden.com
jason.russell@skadden.com
The appellate case is Donovan Lee, et al. v. Intelius Inc, et al.,
Case No. 11-35810, in the United States Court of Appeals for the
Ninth Circuit. The original case is Donovan Lee, et al. v.
Intelius Inc, et al., Case No. 2:09-cv-01485-RSL, in the U.S.
District Court for the Western District of Washington, Seattle.
JAMBA JUICE: Court Tosses "Lilly" Suit Dismissal Bid
----------------------------------------------------
District Judge Jon S. Tigar denied a motion to dismiss the case
captioned ALETA LILLY, et al., Plaintiffs, v. JAMBA JUICE COMPANY,
et al., Defendants, CASE NO. 13-CV-02998-JST, (N.D. Cal.).
The Court also agreed with the parties that it would be
appropriate to set deadlines in the case after the Court rules on
any motion for class certification. Accordingly, the case
management conference that was scheduled for November 21, 2013,
was vacated. The Court sets February 3, 2014, as the deadline for
Plaintiffs to file a motion for class certification.
Judge Tigar also ordered the parties to move the Court to schedule
a case management conference not more than 30 days after a class
certification order is issued.
Defendants Jamba Juice Company and Inventure Foods, Inc. moved to
dismiss the complaint on two grounds. First, the Defendants argued
that the named plaintiffs lack Article III standing to assert
claims related to the Orange Dream Machine smoothie kit because
they did not purchase it and it is not substantially similar to
the products they did purchase. Second, the Defendants argued that
the Plaintiffs lack statutory standing under the California
Consumers Legal Remedies Act to bring actions related to the
Orange Dream Machine smoothie kit, for similar reasons.
According to Judge Tigar, the Plaintiffs do not have standing to
assert claims related to products they did not buy. But they may
seek to represent a class of people who purchased those products,
as long as all plaintiffs, named and absent, have standing in
their own right, and as long as the prerequisites to class
certification are satisfied. The Defendant does not dispute that
Plaintiffs have standing to bring claims related to the products
they did purchase, he said.
"Defendants do not dispute that Plaintiffs have CLRA standing in
their own right as to the products they purchased. Defendants have
therefore failed to meet their burden of showing that the CLRA's
standing requirements compel dismissal of the CLRA claim asserted
in the complaint," Judge Tigar concluded.
A copy of the District Court's November 18, 2013 Order is
available at http://is.gd/hkC5j1from Leagle.com.
KINDER MORGAN: Court Approved Copano Shareholders Suit Settlement
-----------------------------------------------------------------
The Delaware Chancery Court on September 9, 2013, held a
settlement hearing and issued a final order approving the
settlement of the Copano Shareholders' Litigation, according to
Kinder Morgan, Inc. Form 10-Q filed on October 30, 2013, with the
U.S. Securities and Exchange Commission for the quarterly period
ended September 30, 2013.
Three putative class action lawsuits were filed in connection with
KMP's merger with Copano: (i) Schultes v. Copano Energy, L.L.C.,
et al. (Case No. 06966), in the District Court of Harris County,
Texas, which is referred to as the Texas State Action; (ii) Bruen
v. Copano Energy, L.L.C., et al. (Case No. 4:13-CV-00540) in the
United States District Court for the Southern District of Texas,
which is referred to as the Texas Federal Action; and (iii) In re
Copano Energy, L.L.C. Shareholder Litigation, Case No. 8284-VCN in
the Court of Chancery of the State of Delaware, which is referred
to as the Delaware Action, which reflects the consolidation of
three actions originally filed in the Court of Chancery. The Texas
State Action, the Texas Federal Action and the Delaware Action are
collectively referred to as the "Actions."
The Actions name Copano, R. Bruce Northcutt, William L. Thacker,
James G. Crump, Ernie L. Danner, T. William Porter, Scott A.
Griffiths, Michael L. Johnson, Michael G. MacDougall, Kinder
Morgan G.P., Inc., KMEP and Javelina Merger Sub LLC as defendants.
The Actions were purportedly brought on behalf of a putative class
seeking to enjoin the merger and allege, among other things, that
the members of Copano's board of directors breached their
fiduciary duties by agreeing to sell Copano for inadequate and
unfair consideration and pursuant to an inadequate and unfair
process, and that Copano, KMEP, Kinder Morgan G.P., Inc. and
Javelina Merger Sub LLC aided and abetted such alleged breaches.
In addition, the plaintiffs in each of the Texas State Action and
the Delaware Action alleged that the Copano directors breached
their duty of candor to unitholders by failing to provide the
unitholders with all material information regarding the merger
and/or made misstatements in the preliminary proxy statement. The
plaintiffs in the Texas Federal Action also asserted a claim under
the federal securities laws alleging that the preliminary proxy
statement omits and/or misrepresents material information in
connection with the merger.
On April 21, 2013, the parties in all the Actions executed a
Memorandum of Understanding pursuant to which Copano agreed to
make certain additional disclosures concerning the merger in a
Form 8-K, which Copano filed on April 22, 2013, and the plaintiffs
agreed to enter into a stipulation of settlement providing for
full settlement and dismissal with prejudice of each of the
Actions. The parties then prepared and filed a Stipulation of
Settlement with the Delaware Chancery Court, and on June 28, 2013,
Copano announced that it had reached an agreement with the
plaintiffs to settle all claims asserted against all defendants.
The settlement does not require the defendants to pay any monetary
consideration to the proposed settlement class. Following notice
to the putative class, the Delaware Chancery Court held a
settlement hearing and issued a final order approving the
settlement on September 9, 2013. The order, among other things,
dismissed the Delaware Action with prejudice and provided for a
release in favor of all of the defendants for any and all claims
by any of the putative class members arising out of the merger.
The order also awarded plaintiffs' counsel in the Delaware action
$450,000 for their fees and expenses, to be paid by defendants.
The plaintiff in the Texas Federal Action dismissed his case on
May 13, 2013 and intervened in the Texas State Action on August
12, 2013 for the sole purpose of advancing a joint motion and
petition for attorneys' fees and expenses. On October 11, 2013,
the court in the Texas State Action entered an order and final
judgment denying plaintiffs' joint motion for fees and expenses.
Kinder Morgan, Inc. (KMI) owns and manages a diversified portfolio
of energy transportation and storage assets. The Company operates
in five business segments: Products Pipelines-KPM, Natural Gas
Pipelines-KMP, CO2-KMP, Terminals-KMP and Kinder Morgan Canada-
KMP. The Company through Kinder Morgan Energy Partners, L.P. (KMP)
operates or owns an interest in approximately 37,000 miles of
pipelines and approximately 180 terminals. These pipelines
transport natural gas, refined petroleum products, crude oil,
carbon dioxide and other products, and its terminals store
petroleum products and chemicals, and handle such products as
ethanol, coal, petroleum coke and steel. The Company is a provider
of carbon dioxide (CO2), for enhanced oil recovery projects in
North America. On May 25, 2012, KMI acquired El Paso Corporation.
In August 2012, Kinder Morgan Energy Partners, L.P. acquired
Tennessee Gas Pipeline (TGP) and a 50% interest in El Paso Natural
Gas (EPNG) pipeline from KMI.
LANDSCAPE STRUCTURES: Recalls Oodle Swings Due to Injury Hazard
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Landscape Structures Inc., of Delano, Minn., announced a voluntary
recall of 177 Oodle Swings. Consumers should stop using this
product unless otherwise instructed. It is illegal to resell or
attempt to resell a recalled consumer product.
The swing seat is suspended too close to the ground, posing an
injury hazard to children who can get their legs caught underneath
the swing seat.
Nine children have broken their legs or suffered sprains when
their legs got caught under the swing.
The recall involves Landscape Structures' Oodle Swings. The swing
frame is a double arch, comes in a variety of colors and measures
9 1/2 ft. high by 13 1/2 ft. long by 4 1/2 ft. wide. The swing
seat is an oval-shaped ring, measures 4 ft. wide by about
3 1/2 ft. deep, comes in a variety of colors and is suspended from
the frame by four black cables or chains. The swing seat holds as
many as six children. Landscape Structures is printed on label
near ground level on the frame. The swing set's model number
173592 is printed in the swing's instruction manual. "Landscape
Structures" is molded in the black rubber bumper of the swing
seat.
Pictures of the recalled products are available at:
http://is.gd/NQOexC
The recalled products were manufactured in United States and sold
to schools and other facilities with playground equipment
nationwide from February 2011 through November 2013 for about
$4,350.
Consumers should stop using the swings immediately and measure the
distance between the bottom of the swing seat and the ground. If
the distance is less than 12 3/4 inches, contact Landscape
Structures for a free repair. Landscape Structures is contacting
its customers directly.
LIBBEY GLASS: Recalls Cocktail Glasses Due to Laceration Hazard
---------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Libbey Glass Inc., of Toledo, Ohio, announced a voluntary recall
of about 218,000 Bristol Valley Cocktail Glasses with Sheer Rim.
Consumers should stop using this product unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The glasses can break unexpectedly, posing a laceration hazard.
Libbey has received 16 reports from commercial customers of
glasses breaking, including one report of a minor laceration to a
restaurant patron when the glass broke during use.
The recall involves Bristol Valley, model 8555SR, cocktail glasses
with sheer rims. The glasses are made of clear, colorless glass
in a 7.75 ounce cocktail design with a thin rim. The glasses
measure about 61/4 inches high, 31/4 inches wide at the base, and
41/4 inches wide at the top. They were sold individually and in
24-piece cartons for commercial users.
Pictures of the recalled products are available at:
http://is.gd/VWVyZd
The recalled products were manufactured in United States and sold
through commercial customers for use in foodservice
establishments, at the Libbey Outlet Store in Shreveport,
Louisiana and at various independent liquor stores nationwide from
January 2013 through November 2013 for between $1 and $4 per
glass.
Consumers should immediately stop using the recalled glasses and
return them to the store where purchased for a refund. Commercial
customers should contact Libbey Glass Inc. to arrange for
destruction of the product and receipt of a credit, refund or
replacement.
LOCKHEED MARTIN: Sup. Ct. Refuses to Review Employee Class Action
-----------------------------------------------------------------
Lawrence Hurley, writing for Reuters, reports that the Supreme
Court on Dec. 16 opted not to hear an appeal filed by Lockheed
Martin Corp., which was contesting a class action lawsuit brought
by employees.
The company wanted the court to throw out the lawsuit filed on
behalf of potentially 56,000 employees. The lawsuit claims that
Lockheed is liable for poor management of its employee retirement
plan under the federal U.S. Employee Retirement Income Security
Act.
The case, originally filed in 2006, will now return to an Illinois
federal court for further proceedings.
Previously, a federal judge said the lawsuit did not meet the
requirements to proceed as a class action, but in an August
ruling, the 7th U.S. Circuit Court of Appeals threw out that
decision.
Lockheed then sought Supreme Court review on a threshold issue of
whether any of the named plaintiffs had shown they had been
harmed. The company said that at the time of the lawsuit, only
one of the named plaintiffs, Lloyd DeMartini, had invested in the
fund at issue and that it had been performing well during the time
he was participating.
The case is Lockheed Martin v. Anthony Abbott, U.S. Supreme Court,
13-447.
MOTOROLA: NHCA Gets Cy Pres Award Under Class Action Settlement
---------------------------------------------------------------
The National Hearing Conservation Association (NHCA) was the
recipient of a cy pres award as a part of the settlement of a
class action suit against Motorola and other Bluetooth
manufacturers. A cy pres award is a dollar amount awarded to a
non-profit organization which furthers the interests of those
damaged by the possible wrong doing. The NHCA was selected as a
recipient due to wide-spread recognition of its long-standing
mission of preventing noise-induced and other avoidable hearing
loss in all sectors of society.
Although no admissions of guilt were made or implied, these
manufacturers settled claims against them for violating rules and
regulations which were in place to protect the hearing of
consumers. Specifically, the lawsuit claimed that consistent
spikes in decibel levels, in conjunction with long term use of
Bluetooth headsets could cause temporary and permanent hearing
damage. The claims alleged further that no warnings were properly
made to alert consumers that their hearing was at risk. The
settlement requires all Bluetooth manufacturers to place visible
warnings in the proper instruction books to alert users of the
potential risks.
Evan Nass, Esq., lead plaintiff in the lawsuit, selected the NHCA
as the recipient for the cy pres award, due to the organization's
"unyielding advocacy for the prevention of hearing loss." "Our
hearing is a precious commodity. The NHCA serves as a tireless
guardian for this sense, which is too often ignored or neglected
by society."
The award will be utilized by the NHCA Scholarship Foundation to
foster research and encourage student involvement in hearing loss
prevention, and by the NHCA to further its efforts to prevent
hearing loss. These efforts include an annual conference,
publication of new research in hearing loss prevention in The
International Journal of Audiology, and outreach to both
affiliated professions and the general public.
According to NHCA President Jennifer Tufts, "NHCA is a small
organization with big ideas and a big mission. With the cy pres
award, we can put more of our ideas into action. We are very
grateful to Mr. Nass for selecting NHCA as the recipient of this
award."
About the National Hearing Conservation Association (NHCA)
The mission of the NHCA is to prevent hearing loss due to noise
and other environmental factors in all sectors of society. NHCA
provides networking, resources and professional development
opportunities to improve skills, practices, and services in
hearing loss prevention. NHCA's membership includes audiologists,
researchers, industrial hygienists, educators, professional
service organizations, safety professionals, medical
professionals, engineers, audio professionals, students, and
others who have dedicated their work to the advancement of hearing
loss prevention.
NEUROGESX INC: Briefing Schedule in "Maritime Asset" Suit Set
-------------------------------------------------------------
In the case captioned MARITIME ASSET MANAGEMENT, LLC, on Behalf of
Itself and All Others Similarly Situated, Plaintiff, v. NEUROGESX,
INC., ANTHONY A. DITONNO, STEPHEN F. GHIGLIERI, and JEFFREY K.
TOBIAS, M.D., Defendants, CASE NO. CV 12-05034-YGR, (N.D. Cal.),
District Judge Yvonne Gonzalez Rogers signed a stipulation entered
into by the Plaintiff and the Defendants, which provides that:
1. The Defendants were to file an answer, move, or otherwise
respond to the Second Amended Class Action Complaint on or
before December 13, 2013.
2. If the Defendants file motions to dismiss the Second Amended
Class Action Complaint, the Plaintiff will file an opposition
to the Defendants' motions on or before January 17, 2014.
3. If the Defendants file motions to dismiss the Second Amended
Class Action Complaint, the Defendants will file a reply on or
before February 4, 2014.
4. If the Defendants file motions to dismiss the Second Amended
Class Action Complaint, the Defendants will notice their
motions for hearing on February 25, 2014 at 2:00 p.m.
5. The January 13, 2014 Case Management Conference will be taken
off calendar;
6. Within 14 days of the Court's order ruling on the motions to
dismiss, the parties will meet and confer and propose to the
Court a date for a Case Management Conference.
A copy of the District Court's November 18, 2013 Order is
available at http://is.gd/k0YvuWfrom Leagle.com.
DARRYL P. RAINS -- DRains@mofo.com -- MORRISON & FOERSTER LLP,
Palo Alto, California. KEVIN A. CALIA -- kcalia@mofo.com --
MORRISON & FOERSTER LLP, San Francisco, California, Attorneys for
defendants NeurogesX, Inc., Anthony A. DiTonno and Stephen F.
Ghiglieri.
Nicholas I. Porritt -- nporritt@zlk.com -- LEVI & KORSINSKY LLP,
Washington, DC. Mark Punzalan -- mark@punzalanlaw.com -- PUNZALAN
LAW, P.C., Redwood City, CA, Attorneys for Plaintiff Maritime
Asset Management, LLC.
Attorneys for defendant Jeffrey K. Tobias, M.D.:
Angela L. Dunning, Esq.
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
Telephone: (650) 843-5000
Facsimile: (650) 857-0663
NUVASIVE INC: Named as Defendant in "Popov" Securities Class Suit
-----------------------------------------------------------------
NuVasive, Inc., is facing a securities class action lawsuit
alleging that the Company made false and materially misleading
statements regarding the its business and financial results,
according to the Company's Form 10-Q filed on October 30, 2013,
with the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2013.
On August 28, 2013, a purported securities class action lawsuit
was filed by Danny Popov in the United States District Court for
the Southern District of California naming NuVasive and certain of
its current and former executive officers for allegedly making
false and materially misleading statements regarding the Company's
business and financial results, specifically relating to the
purported improper submission of false claims to Medicare and
Medicaid. The complaint asserts a putative class period stemming
from October 22, 2008 to July 30, 2013. The complaint alleges
violations of Sections 10(b) and 20(a) of the Securities Exchange
Act of 1934, as amended, and Rule 10b-5 promulgated thereunder and
seeks unspecified monetary relief, interest, and attorneys' fees.
The Company intends to vigorously defend against this action. At
September 30, 2013, the probable outcome of this litigation cannot
be determined, nor can the Company estimate a range of potential
loss.
NuVasive, Inc. (NuVasive) is a medical device company. NuVasive
focuses on developing minimally disruptive surgical products and
procedures for the spine. During the year ended December 31, 2011,
its marketed product portfolio focused on applications for spine
fusion surgery, including biologics. Its principal product
offering includes a minimally disruptive surgical platform called
Maximum Access Surgery (MAS), as well as offering of biologics,
cervical and motion preservation products. NuVasive's spine
surgery product line offerings, which include products for the
thoracolumbar spine, the cervical spine, and a set of motion
preservation product offerings under development, are primarily
used to enable access to the spine and to perform restorative and
fusion procedures in a minimally disruptive fashion. Its biologic
product line offerings include allograft (donated human tissue),
FormaGraft and Osteocel Plus. In May 2013, the Company acquired
ANC, LLC.
PG&E CORP: Calif. Suit Over Unfair Business Practices Dismissed
---------------------------------------------------------------
A California state court on May 23, 2013, granted the request of
PG&E Corporation and its co-defendants to dismiss a complaint
against them, alleging unfair business practices in violation of
California state law, according to the Company's Form 10-Q filed
on October 30, 2013, with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2013.
On August 23, 2012, a complaint was filed in the San Francisco
Superior Court against PG&E Corporation, its utility unit and
other unnamed defendants by individuals who seek certification of
a class consisting of all California residents who were customers
of the Utility between 1997 and 2010, with certain exceptions. The
plaintiffs allege that the Utility collected more than $100
million in customer rates from 1997 through 2010 for the purpose
of various safety measures and operations projects but instead
used the funds for general corporate purposes such as executive
compensation and bonuses. The plaintiffs allege that PG&E
Corporation and the Utility engaged in unfair business practices
in violation of California state law. The plaintiffs seek
restitution and disgorgement, as well as compensatory and punitive
damages.
PG&E Corporation and the Utility contest the plaintiffs'
allegations. On May 23, 2013, the court granted PG&E Corporation's
and the Utility's request to dismiss the complaint on the grounds
that the CPUC has exclusive jurisdiction to adjudicate the issues
raised by the plaintiffs' allegations. The plaintiffs have
appealed the court's ruling to the California Court of Appeal.
PG&E Corporation and the Utility are unable to estimate the amount
or range of reasonably possible losses, if any, that may be
incurred in connection with this matter.
PG&E Corporation is a holding company that conducts its business
through Pacific Gas and Electric Company (Utility). The Utility's
revenues are generated mainly through the sale and delivery of
electricity and natural gas to customers. The Utility served
approximately 5.2 million electricity distribution customers and
approximately 4.4 million natural gas distribution customers at
December 31, 2012. The Utility's rates for electricity and natural
gas utility services are based on its costs of providing service
(cost-of-service ratemaking). The Utility is regulated primarily
by the California Public Utilities Commission (CPUC) and the
Federal Energy Regulatory Commission (FERC). In addition, the
Nuclear Regulatory Commission (NRC) oversees the licensing,
construction, operation, and decommissioning of the Utility's
nuclear generation facilities. During the year ended December 31,
2012, the Company delivered 76,205 gigawatts per hour of Actual
Electricity.
PLAYTEX PRODUCTS: Recalls Infant Carriers Due to Fall Hazard
------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Playtex Products Inc., of Dover, Del., announced a voluntary
recall of about 305,000 and 36,000 in Canada Playtex Hip Hammock
infant carriers. Consumers should stop using this product unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The buckles on the waist and shoulder straps can crack or break,
posing a fall hazard to the child.
Playtex has received 87 reports of the buckles cracking or
breaking, including two reports of injuries, where one infant
required emergency room treatment.
The Playtex Hip Hammock is an infant carrier designed to strap the
baby against the caregiver's body at the hip. It is made of a
soft, quilted fabric and intended for babies that are from 15 to
35 pounds. The child seat is attached with straps that wrap
around the carrier's hips and shoulder. "Playtex Hip Hammock" is
printed on a label sewn into the front of the carrier. All model
numbers are being recalled. Model numbers 05300, 05301, 05302,
05306, 05307 and 05308 are sewn into the inside panel below the
instructions for use. They come in basic and deluxe styles. The
hip hammock's fabric is suede or ultra-suede in black or navy
colors on the outside, and the inside lining is black, black and
white check or burgundy.
Pictures of the recalled products are available at:
http://is.gd/WytIYt
The recalled products were manufactured in China and sold at
Burlington Coat Factory, Target, Walmart, juvenile product, baby
and discount stores nationwide and online at Amazon.com from June
2004 through December 2008 and January 2010 in Canada for about
$40 for the basic model and $60 for the deluxe model.
Consumers should stop using the carrier and contact Playtex for
instructions on how to return the product for a full refund.
PRINCIPAL FINANCIAL: High Court Denies Writ of Certiorari
---------------------------------------------------------
The U.S. Supreme Court on October 7, 2013, denied a Plaintiff's
petition for a writ of certiorari on the issue of the denial of
class certification, according to Principal Financial Group,
Inc.'s Form 10-Q filed on October 30, 2013, with the U.S.
Securities and Exchange Commission for the quarterly period ended
September 30, 2013.
On November 8, 2006, a trustee of Fairmount Park Inc. Retirement
Savings Plan filed a putative class action lawsuit in the United
States District Court for the Southern District of Illinois
against Principal Life. The complaint alleged, among other things,
that Principal Life breached its alleged fiduciary duties while
performing services to 401(k) plans by failing to disclose, or
adequately disclose, to employers or plan participants the fact
that Principal Life receives "revenue sharing fees from mutual
funds that are included in its pre-packaged 401(k) plans" and
allegedly failed to use the revenue to defray the expenses of the
services provided to the plans. Plaintiff further alleged that
these acts constitute prohibited transactions under ERISA.
Plaintiff sought to certify a class of all retirement plans to
which Principal Life was a service provider and for which
Principal Life received and retained "revenue sharing" fees from
mutual funds. On August 27, 2008, the plaintiff's motion for class
certification was denied. On June 13, 2011, the court entered a
consent judgment resolving the claims of the plaintiff. On July
12, 2011, plaintiff filed a notice of appeal related to the issue
of the denial of class certification. On February 13, 2013, the
Eighth Circuit Court of Appeals dismissed the appeal. Plaintiff
filed a petition for a writ of certiorari with the U.S. Supreme
Court, which was denied on October 7, 2013.
Principal Financial Group, Inc. (PFG) is a provider of retirement
savings, investment and insurance products and services. As of
December 31, 2011, the Company had approximately 18 million
customers. PFG's United States and international operations
concentrate primarily on asset accumulation and asset management.
PFG offers a range of individual and group life insurance,
individual and group disability insurance, and group dental and
vision insurance. It focuses on small and medium-sized businesses
providing an array of retirement and employee benefit solutions.
The Company operates in four segments: retirement and investor
services, principal global investors, principal international, and
United States insurance solutions. PFG's corporate segment
consists of the assets and activities that have not been allocated
to any other segment. As of December 31, 2011, it owned 26
properties in Des Moines, Iowa, and in various other locations. In
February 2013, it acquired AFP Cuprum S.A.
PRINCIPAL FINANCIAL: Class Cert. Denied in "Cruise/Mullaney" Suits
------------------------------------------------------------------
A U.S. federal court on September 30, 2013, denied Cruise and
Mullaney's motion for class certification, according to Principal
Financial Group, Inc.'s Form 10-Q filed on October 30, 2013, with
the U.S. Securities and Exchange Commission for the quarterly
period ended September 30, 2013.
On December 2, 2009 and December 4, 2009, two plaintiffs, Cruise
and Mullaney, each filed putative class action lawsuits in the
United States District Court for the Southern District of New York
against us; Principal Life; Principal Global Investors, LLC;
Principal Management Corporation; and Principal Real Estate
Investors, LLC (the "Cruise/Mullaney Defendants"). The lawsuits
alleged the Cruise/Mullaney Defendants failed to manage the
Principal U.S. Property Separate Account ("PUSPSA") in the best
interests of investors, improperly imposed a "withdrawal freeze"
on September 26, 2008, and instituted a "withdrawal queue" to
honor withdrawal requests as sufficient liquidity became
available. Plaintiffs allege these actions constitute a breach of
fiduciary duties under ERISA. Plaintiffs seek to certify a class
including all qualified ERISA plans and the participants of those
plans that invested in PUSPSA between September 26, 2008, and the
present that have suffered losses caused by the queue. The two
lawsuits, as well as two subsequently filed complaints asserting
similar claims, have been consolidated and are now known as In re
Principal U.S. Property Account Litigation.
On September 30, 2013, the plaintiffs' motion for class
certification was denied. The Cruise/Mullaney Defendants are
aggressively defending the lawsuit.
Principal Financial Group, Inc. (PFG) is a provider of retirement
savings, investment and insurance products and services. As of
December 31, 2011, the Company had approximately 18 million
customers. PFG's United States and international operations
concentrate primarily on asset accumulation and asset management.
PFG offers a range of individual and group life insurance,
individual and group disability insurance, and group dental and
vision insurance. It focuses on small and medium-sized businesses
providing an array of retirement and employee benefit solutions.
The Company operates in four segments: retirement and investor
services, principal global investors, principal international, and
United States insurance solutions. PFG's corporate segment
consists of the assets and activities that have not been allocated
to any other segment. As of December 31, 2011, it owned 26
properties in Des Moines, Iowa, and in various other locations. In
February 2013, it acquired AFP Cuprum S.A.
PVR PARTNERS: Being Sold to Regency for Too Little, Suit Claims
---------------------------------------------------------------
William Engel, Individually and on Behalf of All Others Similarly
Situated v. Edward B. Cloues, II, James L. Gardner, Robert J.
Hall, Thomas W. Hofmann, E. Bartow Jones, Marsha R. Perelman,
William H. Shea, Jr., John C. Van Roden, Jr., Andrew W. Ward,
Jonathan B. Weller, PVR Partners, L.P., PVR GP, LLC, Regency
Energy Partners LP, Regency GP LP and RVP LLC, Case No. 2:13-cv-
07288-HB (E.D. Pa., December 12, 2013) alleges violations of
securities law and breaches of fiduciary duty arising out of the
Defendants' attempt to consummate the proposed acquisition of PVR
Partners by Regency pursuant to an alleged unfair process and for
an unfair price.
PVR Partners is a publicly traded master limited partnership
focused on owning and operating a network of natural gas midstream
pipelines and processing plants assets, and owning and managing
coal and natural resource properties.
Regency is also a publicly traded MLP engaged in the gathering and
processing, contract compression, treating and transportation of
natural gas, and the transportation, fractionation and storage of
natural gas liquids.
The Plaintiff is represented by:
Deborah R. Gross, Esq.
LAW OFFICES BERNARD M. GROSS, P.C.
John Wanamaker Building, Suite 450
100 Penn Square East
Philadelphia, PA 19107
Telephone: (215) 561-3600
Facsimile: (215) 561-3000
E-mail: debbie@bernardmgross.com
- and -
Samuel H. Rudman, Esq.
Mark S. Reich, Esq.
Michael G. Capeci, 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
mreich@rgrdlaw.com
mcapeci@rgrdlaw.com
- and -
David T. Wissbroecker, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101-8498
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: DWissbroecker@rgrdlaw.com
RED WING: Recalls Steel Toe Work Boots Due to Impact Hazard
-----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Red Wing Shoe Company Inc., of Red Wing, Minn., announced a
voluntary recall of about 105,000 pairs in the United States and
9,000 in Canada. Consumers should stop using this product unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The steel toe cap in the boots could fail to protect the wearer's
feet in an impact.
There were no incidents that were reported.
The recall involves 45 styles of Red Wing men's steel toe work
boots in sizes 11 to 18 and widths ranging from B to H depending
on the size and style. The boots have 6, 8, 10 or 11 inch ankle
height and were sold in brown, black and maroon-colored leather.
The following style numbers are included in the recall: 2206,
2211, 2223, 2226, 2230, 2238, 2249, 2254, 2270, 2404, 2405, 2406,
2408, 2412, 2414, 2426, 2491, 3505, 3507, 3508, 3526, 3528, 3568,
4208, 4210, 4273, 4406, 4414, 4425, 4433, 4435, 4436, 4437, 4438,
4445, 4481, 4483, 4484, 4494, 22406, 22408, 52406, 52408, 82406
and 82408. Date codes between 10/12 and 11/13 are included in the
recall. The style number, date code and Red Wing Shoes are
printed on a label inside the boot's tongue. For the complete
list, see the firm's website.
Pictures of the recalled products are available at:
http://is.gd/JF8pXT
The recalled products were manufactured in United States and sold
at Red Wing stores and other shoe stores from October 2012 through
November 2013 for between $185 and $340.
Consumers should stop wearing the recalled boots immediately and
return them to a Red Wing store/dealer or contact Red Wing Shoes
for a free replacement pair of boots.
REXFORD INDUSTRIAL: Pre-IPO Investors File Securities Suit
----------------------------------------------------------
Rexford Industrial Realty, Inc., is one of the defendants in a
putative class action filed on October 3, 2013, by pre-IPO
investors purportedly brought on behalf of the investors in RIF
III in the Los Angeles County Superior Court asserting claims for
breach of fiduciary duty, according to the Company's Form 8-K
dated October 28, 2013, filed with the U.S. Securities and
Exchange Commission on October 30, 2013.
Separately and subsequent to the efforts and initial discussions
that gave rise to the Accommodation, on October 3, 2013, one
husband and wife couple who were pre-IPO investors filed a
putative class action purportedly brought on behalf of the
investors in RIF III in the Los Angeles County Superior Court (the
"RIF III Action"). Plaintiffs assert claims against the Company,
RIF III, RILLC and Messrs. Schwimmer, Frankel and Ziman
("Defendants") for breach of fiduciary duty, violation of certain
California securities laws, negligent misrepresentation, and
fraud. Plaintiffs allege, among other things, that the terms of
the formation transactions were unfair to investors in RIF III,
that the consideration received by investors in RIF III in the
formation transactions was inadequate, that the Management
Companies were allocated unfair value in the formation
transactions and that the disclosure documents related to the
formation transactions were materially misleading. The complaint
seeks class certification, requests to inspect the books and
records of currently non-existent RIF III, and further seeks
declaratory relief, unspecified recessionary damages,
disgorgement, compensatory, punitive and exemplary damages, an
accounting for unjust enrichment, and an award of costs including
pre-judgment interest, attorneys' and experts' fees, and other
unspecified relief. Plaintiffs also asserted in court filings that
the formal communication of the proposed Accommodation was
materially misleading by not including disclosures regarding the
lawsuit and claims asserted by plaintiffs. While the Company
believes that the RIF III Action is without merit and intends to
defend the litigation vigorously, it expects to incur costs
associated with defending the RIF III Action. At this early stage
of the litigation, the ultimate outcome of the RIF III action is
uncertain and the Company cannot reasonably assess the timing or
outcome, or estimate the amount of loss, if any, or its effect, if
any, on its financial statements. The Accommodation was not made
in response to the RIF III Action, as the discussions leading to
the Accommodation predate the RIF III Action.
As of October 29, 2013, pre-IPO investors representing 14.0% of
the aggregated capital commitments in the Predecessor Funds had
not yet elected to participate in the Accommodation. The pre-IPO
investors had until November 30, 2013 to elect whether to
participate in the Accommodation.
According to Rexford Industrial Realty, there can be no assurance
that these pre-IPO investors will elect to do so, and there is a
risk that pre-IPO investors who do not elect to participate in the
Accommodation may assert claims against Defendants relating to the
formation transactions and/or the pre-IPO business of the
Predecessor Funds.
Rexford Industrial Realty is a real estate investment trust that
specializes in acquiring, owning and operating industrial
properties in Southern California infill markets. The Company owns
interests in over 60 properties approaching 7 million rentable
square feet and manages an additional 20 properties with
approximately 1.2 million rentable square feet. In November 2013,
the Company acquired an industrial property located at 22343-22349
La Palma Avenue in Yorba Linda, California. Effective November 11,
2013, Rexford Industrial Realty Inc acquired the Park.
SANTARUS INC: Insiders to Profit Unfairly From Sale, Suit Says
--------------------------------------------------------------
Harold Clemons, Individually and on Behalf of All Others Similarly
Situated v. Santarus, Inc., Salix Pharmaceuticals, Ltd., Salix
Pharmaceuticals Inc., Willow Acquisition Sub, Corporation, David
F. Hale, Gerald T. Proehl, Daniel D. Burgess, Michael G. Carter,
Alessandro E. Della Cha, Michael E. Herman, Ted W. Love and Kent
Snyder, Case No. 3:13-cv-02995-BTM-BGS (S.D. Cal., December 13,
2013) is an individual stockholder action and a stockholder class
action brought on behalf of the holders of Santarus, Inc. common
stock against Santarus, the members of Santarus's Board of
Directors, Salix Pharmaceuticals, Ltd. ("Parent"), Willow
Acquisition Sub Corporation, a Delaware corporation and an
indirect wholly owned subsidiary of Parent ("Purchaser"), and
Salix Pharmaceuticals, Inc., a wholly owned subsidiary of Parent,
in connection with an Agreement and Plan of Merger dated
November 7, 2013, entered into by Santarus, Parent, Purchaser and
Intermediary.
Santarus is a Delaware corporation headquartered in San Diego,
California. Santarus is a specialty biopharmaceutical company
focused on acquiring, developing and commercializing proprietary
products that address the needs of patients treated by physician
specialists.
Salix Pharmaceuticals, Ltd. is a Delaware corporation
headquartered Raleigh, North Carolina. Willow Acquisition Sub
Corporation is a Delaware corporation and an indirect wholly owned
subsidiary of Parent. Intermediary is a wholly owned subsidiary
of Parent. The Individual Defendants are directors and officers
of Santarus.
The Plaintiff is represented by:
Randall J. Baron, Esq.
A. Rick Atwood, Jr., Esq.
David T. Wissbroecker, Esq.
Edward M. Gergosian, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (619) 231-1058
Facsimile: (619) 231-7423
E-mail: randyb@rgrdlaw.com
ricka@rgrdlaw.com
dwissbroecker@rgrdlaw.com
egergosian@rgrdlaw.com
- and -
Alfred G. Yates, Jr., Esq.
LAW OFFICE OF ALFRED G. YATES, JR., P.C.
519 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
Telephone: (412) 391-5164
Facsimile: (412) 471-1033
E-mail: yateslaw@aol.com
SOLIL MANAGEMENT: Hurricane Sandy Class Action "Gravely in Doubt"
-----------------------------------------------------------------
Zachary Kussin, writing for The Real Deal, reports that the
prospects for a Hurricane Sandy-related class action seeking rent
refunds from landlords across the state are "gravely in doubt," a
state judge ruled.
In a decision on Dec. 13, New York State Supreme Court Judge
Shirley Werner Kornreich not only dismissed the claims of two out
of the three plaintiffs, but also tossed three out of the five
defendants from the case, strongly undercutting its viability.
Briana Adler, the last remaining plaintiff, now has 20 days to
file a new class action -- but she will be limited to representing
tenants at her Murray Hill building, rather than those across the
state.
Ms. Adler, along with two other tenants, Lauren Shoenfeld and
Perri Steiner, filed the suit in January, seeking rent
reimbursements for time spent without electricity, hot water,
functional elevators or heat, as The Real Deal first reported.
They argued that under New York Real Property Law, landlords and
management companies had an obligation to keep their buildings
habitable. The initial defendants -- including Solil Management
and Sol Goldman Investments, both affiliated with the estate of
Sol Goldman, and Ogden Cap Properties -- moved to dismiss the
class action, claiming the proposed plaintiff and defendant
classes were improper.
"We believe that the decision sends a clear message that a class
action in the context of a [Real Property Law] claim with respect
to Hurricane Sandy is not the proper mechanism to address those
claims," Mara Levin, an attorney with Herrick, Feinstein who
represents the defendants, said in a statement to The Real Deal.
Attorneys for the plaintiffs did not respond to a message seeking
comment.
Judge Kornreich dismissed the claims against Ogden Cap and the two
Goldman entities because they are the managing agents, rather than
the landlords, of the buildings, and therefore are not parties to
any leases. Representatives for Ogden Cap and the estate of Sol
Goldman did not respond to messages seeking comment.
She dismissed Ms. Shoenfeld and Ms. Steiner's claims because they
were not present in their apartments during Sandy, which hit the
city on Oct. 29, 2012.
Ms. Shoenfeld, who lives at the Goldman-managed 145 East 16th
Street, left before Sandy hit the city, then returned "when
conditions were back to normal," the judge noted. Owner 145 East
16th Street LLC did not return a message seeking comment.
Ms. Steiner, who lived at the Tres Realty-owned 17 Stuyvesant
Street in the East Village, stayed away until early November.
Moreover, following Sandy, her fellow tenants still had working
stoves and hot water, and temperatures outside were in the 40s and
50s, the judge noted. Tres did not respond to a message seeking
comment.
"They did not suffer any loss by residing in an apartment lacking
essential services," Judge Kornreich ruled, referring to
Ms. Shoenfeld and Steiner.
Adler lives at Windsor Court, located at 155 East 31st Street, and
it's not yet clear whether she was home during the storm, which
would allow her claims to live on. Still, Judge Kornreich noted
that she might fare better in housing court.
Though the building lacked electricity, the complex had an
emergency generator that powered elevators, lighting in common
areas and water pumps. Tenants received meals, water, glow sticks
and stations to charge electronic devices. Owner Mastic
Associates of New York did not respond to a request for comment.
Real estate attorney Adam Leitman Bailey, who was not involved in
this case, told TRD that Judge Kornreich's decision demonstrates
how bringing a Sandy-related class action would be difficult
because each affected building had its own issues.
"I just don't see that happening," he said.
STATE STREET: Disclosure Guidelines Set in ERISA Class Suit
-----------------------------------------------------------
GLASS DIMENSIONS, INC. on behalf of the Glass Dimensions, Inc.
Profit Sharing Plan and Trust, and all others similarly situated,
Plaintiffs, v. STATE STREET CORPORATION, STATE STREET BANK & TRUST
COMPANY, and STATE STREET GLOBAL ADVISORS, Defendants, CIVIL NO.
10-10588-FDS, (D. Mass.) is an action concerning alleged
violations of the Employee Retirement Income Security Act of 1974.
The Plaintiffs allege that defendant State Street violated ERISA
because it selected an affiliate to provide securities lending
services to its collective trust funds and charged plans a fee
equal to 50% of all net income earned from securities lending,
which plaintiffs contend is excessive. A plaintiff class was
certified by the District Court on August 22, 2012. On October 3,
2013, the matter was transferred to District Judge F. Dennis
Saylor, IV.
Judge Saylor entered an order on the discovery of class members
which provides that:
1. Counsel for defendants may seek to meet with or interview, and
may meet with or interview, members of the class concerning the
subject matter of the litigation outside the presence of
counsel for the plaintiffs, subject to the requirements of the
order.
2. Any such meeting or interview must be entirely voluntary.
Counsel will not pressure or coerce class members into
submitting to a meeting or interview.
3. Any such meeting or interview must be preceded by the delivery
of (a) a letter to the class member, and (b) a copy of the
order. Copies of both items will be provided to in-house
counsel for the class member, if known.
4. Any such meeting or interview will be conducted only in the
presence of counsel for the class member. Such counsel need not
be counsel for plaintiffs in the proceeding.
5. The substance of any such meeting or interview will be limited
to a discussion of factual matters and the possibility of
service of a subpoena or possible testimony at a deposition or
at trial.
6. Counsel for defendants will not attempt to persuade class
members to opt out of the class, or otherwise say anything that
is intended or likely to persuade members to do so.
7. Counsel for defendants will not disparage counsel for
plaintiffs or discourage class members from meeting with or
communicating with counsel for plaintiffs.
8. Counsel for defendants will be permitted to take up to five
depositions of class members without further order of the
Court.
A copy of the District Court's November 18, 2013 Order is
available at http://is.gd/uReDGtfrom Leagle.com.
TRW AUTOMOTIVE: Faces "Occupant Safety Systems" Price Fixing Suits
------------------------------------------------------------------
TRW Automotive Holdings Corp., is a defendant in purported class
action lawsuits filed on various dates from June 2012 through July
2013, alleging that the Company and certain of its competitors
conspired to fix and raise prices for Occupant Safety Systems
products, according to the Company's Form 10-Q filed on October
30, 2013, with the U.S. Securities and Exchange Commission for the
quarterly period ended September 27, 2013.
The Company has been named as a defendant in purported class
action lawsuits filed on various dates from June 2012 through July
2013, which are now pending in the United States District Court
for the Eastern District of Michigan and in various courts in
Canada on behalf of vehicle purchasers, lessors and dealers,
alleging that the Company and certain of its competitors conspired
to fix and raise prices for Occupant Safety Systems products. The
Company intends to defend these cases vigorously. Management
believes that the ultimate resolution of these cases will not have
a material adverse effect on the Company's consolidated financial
statements as a whole.
TRW Automotive Holdings Corp. (TRW Automotive) is a supplier of
automotive systems, modules and components to global automotive
original equipment manufacturers (OEMs) and related aftermarkets.
The Company's operations encompass the design, manufacture and
sale of active and passive safety related products. Active safety
related products principally refer to vehicle dynamic controls
(braking and steering), and passive safety related products refer
to occupant restraints (airbags and seat belts) and safety
electronics (electronic control units and crash and occupant
weight sensors). It operates its business along four segments:
Chassis Systems, Occupant Safety Systems, Electronics and
Automotive Components.
TURQUOISE HILL: Faces Securities Class Action in New York
---------------------------------------------------------
Henry Lazenby, writing for Mining Weekly, reports that Vancouver-
based miner Turquoise Hill Resources on Dec. 16 said its owner Rio
Tinto had secured extensions to the financing commitment letters
from 15 commercial banks that would now expire on March 31, 2014.
On April 17, Rio Tinto signed commitment letters that locked in
pricing and terms for the Oyu Tolgoi copper/gold project's
underground expansion financing.
Turquoise Hill said that Rio Tinto, which owns 50.8% of the
significant Mongolian mine, remained focused on securing project
finance to fund the Oyu Tolgoi project with the full support of
the Mongolian government.
"All parties are committed to resolving the shareholder issues and
advancing the necessary steps to restart the underground mine,"
Turquoise Hill said in a statement.
This included resolving shareholder issues, completion of the
feasibility study, project financing, permitting and approvals.
The feasibility study was expected to be complete during the first
half of 2014.
Rio Tinto was trying to resolve disputes with the Mongolian
government over terms for C$4.2-billion in project financing to
fund an expansion at Oyu Tolgoi, which would be critical to Rio's
and Mongolia's growth.
Rio put the C$5-billion expansion project on hold in August and
said it would have to cut up to 1 700 jobs owing to the project
financing dispute.
Turquoise Hill said it expected Oyu Tolgoi to produce between 150
000 t and 175 000 t of copper in concentrates and 700 000 oz to
750 000 z of gold in concentrates. Operating cash costs were
expected to be about C$1-billion and capital expenditure was
expected to be C$160-million, of which about C$80-million related
to sustaining capital.
Legal Challenge
Turquoise Hill also announced that on Dec. 13, a purported class
action complaint was filed in the United States District Court for
the Southern District of New York alleging violations of the
federal securities laws by Turquoise Hill and certain of its
officers and/or directors arising out of the company's restatement
resulting from the revisions to the revenue recognition protocol
by coal-mining subsidiary SouthGobi Resources.
The company believed the complaint was without merit and vowed to
vigorously defend against it.
Meanwhile, at the end of November, Turquoise Hill closed the
divestment of its 50% stake in Altynalmas Gold to Sumeru Gold for
C$235-million.
VECTOR GROUP: Liggett Facing 4 Pending Actions as of Sept. 30
-------------------------------------------------------------
According to Vector Group Ltd.'s Form 10-Q filed on October 30,
2013, with the U.S. Securities and Exchange Commission for the
quarterly period ended September 30, 2013, Liggett Group LLC, a
Company subsidiary, has four pending actions as of September 30,
2013.
As of September 30, 2013, there were four actions pending for
which either a class had been certified or plaintiffs were seeking
class certification, where Liggett is a named defendant, including
one alleged price fixing case. Other cigarette manufacturers are
also named in these actions.
Plaintiffs' allegations of liability in class action cases are
based on various theories of recovery, including negligence, gross
negligence, strict liability, fraud, misrepresentation, design
defect, failure to warn, nuisance, breach of express and implied
warranties, breach of special duty, conspiracy, concert of action,
violation of deceptive trade practice laws and consumer protection
statutes and claims under the federal and state anti-racketeering
statutes. Plaintiffs in the class actions seek various forms of
relief, including compensatory and punitive damages,
treble/multiple damages and other statutory damages and penalties,
creation of medical monitoring and smoking cessation funds,
disgorgement of profits, and injunctive and equitable relief.
Defenses raised in these cases include, among others, lack of
proximate cause, individual issues predominate, assumption of the
risk, comparative fault and/or contributory negligence, statute of
limitations and federal preemption.
In Smith v. Philip Morris, a Kansas state court case filed in
February 2000, plaintiffs allege that cigarette manufacturers
conspired to fix cigarette prices in violation of antitrust laws.
Plaintiffs seek to recover an unspecified amount in actual and
punitive damages. Class certification was granted in November
2001. In January 2012, the trial court heard oral argument on
defendants' motions for summary judgment and in March 2012, the
court granted the motions and dismissed plaintiffs' claims with
prejudice. In July 2012, plaintiffs noticed an appeal. The appeal
is pending.
In November 1997, in Young v. American Tobacco Co., a purported
personal injury class action was commenced on behalf of plaintiff
and all similarly situated residents in Louisiana who, though not
themselves cigarette smokers, are alleged to have been exposed to
secondhand smoke from cigarettes which were manufactured by the
defendants, and who suffered injury as a result of that exposure.
The plaintiffs seek to recover an unspecified amount of
compensatory and punitive damages. In October 2004, the trial
court stayed this case pending the outcome of an appeal in another
matter, which has been concluded. There has been no further
activity in this case.
In February 1998, in Parsons v. AC & S Inc., a case pending in
West Virginia, a class was commenced on behalf of all West
Virginia residents who allegedly have personal injury claims
arising from exposure to cigarette smoke and asbestos fibers. The
complaint seeks to recover $1,000 in compensatory and punitive
damages individually and unspecified compensatory and punitive
damages for the class. The case is stayed as a result of the
December 2000 bankruptcy of three of the defendants.
Although not technically a class action, in In Re: Tobacco
Litigation (Personal Injury Cases), a West Virginia state court
consolidated approximately 750 individual smoker actions that were
pending prior to 2001 for trial of certain common issues. In
January 2002, the court severed Liggett from the trial of the
consolidated action. After several mistrials, on May 15, 2013, the
jury rejected all but one of the plaintiffs' claims, finding for
the plaintiffs on the claim that ventilated filter cigarettes,
sold between 1964 and July 1, 1969, should have included
instructions on how to use them. On July 15, 2013, plaintiffs
filed a renewed motion for judgment as a matter of law and a
motion for a new trial. Defendants filed a motion for judgment
notwithstanding the verdict. All post-trial motions were denied
and the issue of damages was reserved for further proceedings that
have not yet been scheduled. Final judgment as to liability was to
be issued on October 28, 2013. If the case were to proceed against
Liggett, it is estimated that Liggett could be a defendant in
approximately 100 of the individual cases.
Class action suits have been filed in a number of states against
cigarette manufacturers, alleging, among other things, that use of
the terms "lights" and "ultra lights" constitutes unfair and
deceptive trade practices. In December 2008, the United States
Supreme Court, in Altria Group v. Good, ruled that the Federal
Cigarette Labeling and Advertising Act did not preempt the state
law claims asserted by the plaintiffs and that they could proceed
with their claims under the Maine Unfair Trade Practices Act. The
Good decision has resulted in the filing of additional "lights"
class action cases in other states against other cigarette
manufacturers. Although Liggett was not a defendant in the Good
case, and is not currently a defendant in any other "lights" class
actions, an adverse ruling or commencement of additional "lights"
related class actions could have a material adverse effect on the
Company.
In addition to the cases described, numerous class actions remain
certified against other cigarette manufacturers. Adverse decisions
in these cases could have a material adverse effect on Liggett's
sales volume, operating income and cash flows.
Vector Group Ltd is a holding company. The Company operates in
tobacco and real estate. The Tobacco segment consists of the
manufacture and sale of cigarettes. The Real Estate segment
includes the Company's investments in consolidated and non-
consolidated real estate businesses. It is engaged in the
manufacture and sale of cigarettes in the United States through
its Liggett Group LLC (Liggett) and Vector Tobacco Inc. (Vector
Tobacco) subsidiaries, and the real estate business through its
New Valley LLC (New Valley) subsidiary, which is seeking to
acquire additional operating companies and real estate properties.
New Valley has real estate-related investments, including Douglas
Elliman Realty (50% interest), New Valley Oaktree Chelsea Eleven
LLC (40% interest) and Fifty Third-Five Building LLC (50%
interest), Sesto Holdings S.r.L (7.2% interest), 1107 Broadway (5%
interest), NV SOCAL LLC (26% interest) and HFZ East 68th Street
(18% interest), where other partners hold interests.
WAL-MART STORES: 9th Cir. Refused to Vacate $28MM Atty. Fee Award
-----------------------------------------------------------------
Tim Hull at Courthouse News Service reports that the 9th Circuit
denied a move by some of the attorneys who negotiated a settlement
in a multidistrict labor action against Wal-Mart to vacate a $28
million arbitration award for attorneys' fees.
In doing so the federal appeals court in San Francisco found that
a non-appealability clause in an arbitration agreement cannot bar
all federal court review.
Attorneys Carolyn Burton and Robert Bonsignore, among others,
represented the plaintiffs in a wage-and-hour class action against
the retailer that was settled for some $85 million in 2008.
Later, the Las Vegas District Court awarded $28 million in
attorneys fees, but Burton and Bonsignore disagreed as to how the
money should be allocated. They eventually agreed to submit to
"binding, non-appealable arbitration", and in 2011 the arbitrator
gave about $6 million to Burton and more than $11 million to
Bonsignore, according to the ruling.
Burton moved to vacate the award, but U.S. District Judge Phillip
Pro declined. The 9th Circuit affirmed on December 17, 2013,
while also addressing a question of first impression in
Bonsignore's argument that the award was not appealable.
Bonsignore had challenged the appellate court's jurisdiction to
even consider the request for vacatur, citing the non-
appealability clause in the parties' arbitration agreement.
A three-judge panel disagreed, finding that allowing parties to
"contractually eliminate all judicial review of arbitration
awards" would go against the Federal Arbitration Act (FAA) and
congressional intent.
"Congress impressed limited, but critical, safeguards onto this
process, ones that respected the importance and flexibility of
private dispute resolution mechanisms, but at the same time barred
federal courts from confirming awards tainted by partiality, a
lack of elementary procedural fairness, corruption, or similar
misconduct," wrote Judge Milan Smith for the unanimous panel. "If
parties could contract around this section of the FAA, the balance
Congress intended would be disrupted, and parties would be left
without any safeguards against arbitral abuse."
The Appellants are represented by:
Robert W. Mills, Esq.
Joshua D. Boxer, Esq.
THE MILLS LAW FIRM
880 Las Gallinas Avenue, Suite Two
San Rafael, CA 94903
Telephone: (415) 455-1326
E-mail: rwm@millslawfirm.com
josh@millslawfirm.com
- and -
Carolyn Beasley Burton, Esq.
LAW OFFICES OF CAROLYN BEASLEY BURTON
2010 Crow Canyon Place
San Ramon, CA 94583
Telephone: (510) 691-2422
The Appellees are represented by:
Frankin D. Azar, Esq.
FRANKLIN D. AZAR & ASSOCIATES, P.C.
14426 East Evans Avenue
Aurora, CO 80014
Telephone: (303) 757-3300
- and -
Robert J. Bonsignore, Esq.
BONSIGNORE & BREWER
23 Forest Street
Medford, MA 02155
Telephone: (781) 391-9400
- and -
Mark Clayton Choate, Esq.
CHOATE LAW FIRM
424 North Franklin
Juneau, AK 99801
Telephone: (907) 586-4490
- and -
Michael Christian, Esq.
ZELLE HOFMANN VOELBEL & MASON LLP
44 Montgomery Street
San Francisco, CA 94104
Telephone: (415) 633-1933
E-mail: mchristian@zelle.com
- and -
Adriana Contartese, Esq.
LAW OFFICE OF ADRIANA CONTARTESE
242 W. Broadway
Boston, MA 02127-1913
Telephone: (617) 268-3557
- and -
Lanny Darr, Esq.
SCHREMPF, KELLY NAPP & DARR, LTD.
307 Henry Street
PO Box 725
Alton, IL 62002
Telephone: (618) 465-2311
E-mail: ldarr@skndlaw.com
- and -
Royce Deryl Edwards, Esq.
R. Deryl Edwards, Jr., Esq.
606 S. Pearl Ave.
Joplin, MO 64801
Telephone: (417) 624-8099
- and -
George Courtney French, Esq.
FUSTON PETWAY & FRENCH
600 Luckie Dr.
Birmingham, AL 35223-2449
Telephone: (205) 977-9798
E-mail: cfrench@fpflaw.com
- and -
Frederick Paul Furth, Esq.
THE FURTH FIRM LLP
10300 Chalk Hill Road
Healdsburg, CA 95448
Telephone: (707) 657-4900
E-mail: fpfurth@aol.com
- and -
Troy Nino Giatras, Esq.
THE GIATRAS LAW FIRM, PLLC
118 Capitol Street
Charleston, WV 25301
Telephone: (304) 343-2900
- and -
Robert Christopher Gilreath, Esq.
GILREATH & ASSOCIATES
200 Jefferson Ave., Suite 711
Memphis, TN 38103
Telephone: (901) 527-0511
Facsimile: (901) 527-0514
E-mail: chrisgil@sidgilreath.com
- and -
Vincent Glorioso, III, Esq.
THE GLORIOSO LAW FIRM
815 Baronne Street
New Orleans, LA 70113
Telephone: (504) 569-9999
E-mail: trey@gtorts.com
- and -
Donald Goldbloom, Esq.
DONALD S. GOLDBLOOM, ATTORNEY AT LAW
12590 National Pike
Grantsville, MD 21536
Telephone: (301) 895-5240
Facsimile: (301) 895-5272
E-mail: goldbloomlaw@verizon.net
- and -
Gregory Francis Greiner, Esq.
GREINER LAW OFFICE, P.C.
P.O. Box 13347
Des Moines, IA 50310
Telephone: (515) 313-7779
- and -
J. Thomas Henretta, Esq.
HENRETTA LAW OFFICES
159 S. Main Street
Akron, OH 44308
Telephone: (330) 376-7800
E-mail: jth@henrettalaw.com
- and -
Thomas H. Johnson, Esq.
LAW FIRM OF THOMAS H. JOHNSON
410 Hickory St.
Texarkana, AR 71854
Telephone: (870) 773-6359
- and -
Pamela R. Mullis, Esq.
MULLIS LAW FIRM
1229 Elmwood Avenue
Columbia, SC 29201
Telephone: (803) 799-9577
- and -
Glen Neeley, Esq.
BURDETT NEELEY & DAVIS
863 E. 25th St.
Ogden, UT 84401
Telephone: (801) 612-1511
- and -
Gary Sean Nitsche, Esq.
WEIK, NITSCHE & DOUGHERTY
305 N. Union Street
P.O. Box 2324
Wilmington, DE 19899
Telephone: (302) 655-4040
- and -
David Michael Noonan, Esq.
SHAHEEN & GORDON, P.A.
140 Washington Street
P.O. Box 977
Dover, NH 03821-0977
Telephone: (603) 749-5000
E-mail: mnoonan@shaheengordon.com
- and -
Jeffrey Padwa, Esq.
PADWA LAW
25 Margrave Ave.
Providence, RI 02906
Telephone: (401) 935-8571
- and -
Wayne D. Parsons, Esq.
WAYNE PARSONS LAW OFFICES
1406 Colburn Street
Honolulu, HI 96817
Telephone: (808) 845-2211
- and -
John Jay Rausch, Esq.
RAUSCH LAW FIRM, PLLC
3909 University Avenue
P.O. Box 905
Waterloo, IA 50704-0905
Telephone: (319) 233-3557
- and -
Daniel E. Rausher, Esq.
189 Montague Street
Brooklyn, NY 11201
Telephone: (718) 596-7333
- and -
Dirk A. Ravenholt, Esq.
RAVENHOLT & ASSOCIATES
2013 Alta Drive
Las Vegas, NV 89106
Telephone: (702) 647-0110
- and -
Laurent Remillard, Jr., Esq.
REMILLARD & HUYNH
707 Richards Street
Honolulu, HI 96813
Telephone: (808) 536-5737
Facsimile: (808) 536-5838
- and -
Samuel Rudman, Esq.
LAMBERT COFFIN
P.O. Box 15215
477 Congress St., 14th Floor
Portland, ME 04112-5215
Telephone: (207) 874-4000
- and -
Fred Schultz, Esq.
GREENE & SCHULTZ
320 W 8th Street, Suite 100
Bloomington, IN 47404
Telephone: (812) 336-4357
Facsimile: (812) 336-5615
E-mail: fred@greeneschultz.com
- and -
Cynthia Kegley Smith, Esq.
JASPER MORIN SMITH OLSON
P.O. Box 7785
Missoula, MT 59807-7785
Telephone: (406) 541-7177
E-mail: cks@montanalaw.com
- and -
Stephen Mark Smith, Esq.
BRAIN INJURY LAW CENTER
2100 Kecoughtan Rd.
Hampton, VA 23666
Telephone: (757) 244-7000
E-mail: ssmith@braininjurylawcenter.com
- and -
Mark A. Tate, Esq.
TATE LAW GROUP, LLC
2 East Bryan Street
Savannah, GA 31401
Telephone: (912) 234-3030
E-mail: marktate@tatelawgroup.com
- and -
Jill Telfer, Esq.
LAW OFFICES OF JILL P. TELFER
331 J Street
Sacramento, CA 95814
Telephone: (916) 446-1916
E-mail: jtelfer@telferlaw.com
- and -
Matthew T. Tobin, Esq.
SD TRUST COMPANY
201 S. Phillips Avenue
Sioux Falls, SD 57104
Telephone: (605) 338-9170
- and -
Jay A. Urban, Esq.
URBAN & TAYLOR SC
4701 N. Port Washington Rd.
Milwaukee, WI 53212
Telephone: (414) 906-1700
E-mail: jurban@wisconsininjury.com
- and -
Christopher Paul Welsh, Esq.
WELSH & WELSH, PC, LLO
9290 West Dodge Road, #100
Omaha, NE 68114
Telephone: (402) 384-8160
- and -
Layn Raymond Phillips, Esq.
IRELL & MANELLA, LLP
840 Newport Center Drive
Newport Beach, CA 92660-6324
Telephone: (949) 760-0991
E-mail: lphillips@irell.com
The appellate case is Carolyn Burton, et al. v. Class Counsel and
Party to Arb, et al., Case No. 11-17718, in the United States
Court of Appeals for the Ninth Circuit. The original case is
Carolyn Burton, et al. v. Class Counsel and Party to Arb, et al.,
Case No. 2:06-cv-00225-PMP-PAL, in the U.S. District Court for the
District of Nevada, Las Vegas.
WELLS FARGO: Faces Class Action Over Unlawful Evictions
-------------------------------------------------------
Scott Lauck, writing for Missouri Lawyers, reports that a
potential class action lawsuit alleges that Wells Fargo bank and
St. Louis-based law firm Kozeny & McCubbin are routinely filing
eviction suits against foreclosed homeowners without strictly
following state law.
YANKEE CANDLE: Recalls Candle Ring Due to Fire Hazard
-----------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
The Yankee Candle Company, Inc., of South Deerfield, Mass,
announced a voluntary recall of about 15,000 in U.S. and 2,000 in
Canada Candle Ring - Pine Berry. Consumers should stop using this
product unless otherwise instructed. It is illegal to resell or
attempt to resell a recalled consumer product.
The candle rings' synthetic foliage and berries are flammable,
posing a fire hazard.
There were no incidents that were reported.
The recalled decorative pine berry candle ring goes around the
base of a candle and is made of synthetic green foliage with
synthetic red berries and pinecones. The ring measures about 9 to
10 inches in diameter and has an opening of about 4 to 4 1/2
inches. Candle rings with UPC number 8 86860 02558 8 or 8 86860
06357 3 on a tag attached to the underside of the ring are
included in the recall.
Pictures of the recalled products are available at:
http://is.gd/978ZWV
The recalled products were manufactured in China and sold at
Hallmark and Yankee Candle retail stores nationwide, Yankee Candle
catalogs and online at Yankeecandle.com from September 2013
through October 2013 for between $8 and $10.
Consumers should immediately stop using the candle rings and
return them to the nearest Yankee Candle store for a refund or
call The Yankee Candle Company for instructions on obtaining a
full refund.
* Right-Wing Media Outlets Support "Forced-Arbitration Clauses"
---------------------------------------------------------------
Meagan Hatcher-Mays, writing for Media Matters for America,
reports that a federal agency's new preliminary report debunks the
popular right-wing myth that private contracts that require people
to take their complaints to an arbitrator are an effective
alternative to class-action lawsuits.
Right-wing media outlets have consistently supported what are
known as "forced-arbitration clauses" -- contractual provisions
that often force consumers to give up their right to join a class
action lawsuit and instead require them to go before an arbitrator
individually, even if the amount in dispute is so small that it
wouldn't make sense to pursue outside of a collective, mass
action. Support on the right has grown since 2011, when the
conservative majority of the Supreme Court held that such forced
arbitration clauses trump consumer protection laws.
The right-wing media has relied in part on that Supreme Court
ruling to dismiss criticism of forced arbitration as "unfair."
For example, Ammon Simon at National Review Online has called
forced arbitration clauses "especially generous towards
consumers," and called class-action lawsuits "a cash cow for trial
lawyers . . . [that] don't usually help consumers, who are
systemically under-compensated in such cases." Mr. Simon
continued:
"While trial lawyers would benefit from strictly limiting
arbitration, consumers would suffer. . . . [C]lass action lawsuits
last an average of 3 years from start to completion, while
arbitrations last slightly under 7 months. What's more, while
consumer claims go on the backburner to trial attorney fees in
class action litigation, consumers can actually be successful in
arbitration, and prefer arbitration to the alternatives."
Hans von Spakovsy, also an NRO contributor and a legal fellow at
the ultra-conservative Heritage Foundation, argued that forced
arbitration clauses are "an efficient and fair alternative to our
costly and burdensome litigation system":
"Given the arbitration process's many benefits over the only real
alternative -- expensive and time-consuming litigation that in
many cases does more to line trial lawyers' pockets than redress
consumers' injuries -- any action to curtail arbitration would
only injure consumers and workers."
Messrs. Simon and von Spakovsky agree that arbitration clauses
provide consumers with a better chance of fair compensation than
do class-action lawsuits.
But according to preliminary findings from a year-long study
conducted by the Consumer Financial Protection Bureau (CFPB),
forced arbitration clauses actually have the effect of denying
consumers of financial products an important avenue for redress in
contractual disputes. According to Alison Frankel at Reuters,
"the evidence shows arbitration doesn't provide any recovery to
the overwhelming majority of consumers of financial products"
(emphasis added):
"According to CFPB, exceedingly few consumers actually bring
arbitration claims when they have a dispute with their credit card
company, bank or payday lender. Tens of millions of consumers are
subject to mandatory arbitration for disputes involving financial
products and services, CFPB estimated, yet only 1,241 cases
involving these products were filed with the American Arbitration
Association between 2010 and 2012. Of those, according to CFPB
chairman Richard Cordray, about 900 were filed by consumers. (The
rest were initiated by banks and lenders.) CFPB offered some
caveats, including the lack of data from JAMS Inc, which also
hears consumer arbitrations, albeit far fewer than AAA. But the
bureau isn't exactly going out on a limb when it concludes that
the evidence shows arbitration doesn't provide any recovery to the
overwhelming majority of consumers of financial products,
especially those with small dollar claims. "Plainly, the number
of arbitrations was low relative to the total populations using
these products," the report said, in a notable understatement."
[. . .]
"The bureau set out specifically to compare consumer recoveries in
arbitration to those in class actions. Using case databases and
other anecdotal reports, CFPB identified eight class action
settlements to serve as a basis of comparison. (The criteria:
Settlements had to have been approved in the second half of 2009
or later; the contract at issue in the class action must have
contained an arbitration clause; and the case must have involved
credit cards, checking accounts or payday loans.) CFPB found that
more than 13 million class members made claims or received
payments through these eight settlements -- which delivered more
than $350 million in payments and debt relief to consumers."
"Those aren't results to scoff at, especially considering that
only 900 consumers attempted to arbitrate similar claims.
Thirteen million people received payments through class actions,
which is an awful lot more than the 900 who filed for arbitration
with AAA, suggesting that consumers are vastly more likely to
recover for their grievances through a class action than through
litigation. And no matter what you think of class action lawyers,
$350 million in payouts is real money."
It's not surprising that the U.S. Chamber of Commerce would
support forced arbitration. The pro-business Chamber expends
millions of dollars a year in an effort to curb "frivolous"
lawsuits, making it more and more difficult for injured plaintiffs
to seek relief in the civil court system. As Ms. Frankel points
out, the report punctures the preferred Chamber narrative that
forced arbitration clauses are a worthy alternative to class-
action lawsuits.
Not only does arbitration fail to provide meaningful relief for
wronged consumers, it also heavily favors the corporations who
require it. According to consumer advocacy group Public Citizen,
"[f]orced arbitration creates a systemic bias in favor of
businesses while offering few, if any, meaningful deterrents
against negligence or even foul play."
Now that it's become clear that forced arbitration clauses may
severely limit consumers' ability to recover from corporate
wrongdoers, it will be interesting to see if right-wing media will
change their talking points.
*********
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 G. Patalinghug, and Peter A. Chapman, Editors.
Copyright 2014. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
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Information contained herein is obtained from sources believed to
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