/raid1/www/Hosts/bankrupt/CAR_Public/140211.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, February 11, 2014, Vol. 16, No. 29
Headlines
ALPHA NATURAL: $265MM Accord Reached in Massey Shareholder Suit
ASTON MARTIN: Recalls 17,590 Sports Cars Over Pedal Molding Issues
BANK OF AMERICA: Faces Suit Over Residential "Short Sale" Program
BEST BUY: Filed Motion to Reconsider Order in Securities Suit
BOOKLET BINDING: Class Suit Alleges Violations of WARN Act
BRITAX: Recalls 216,000 Strollers Due to Injury Risk
BROADWAY RESTAURANT: Suit Seeks to Recover Minimum and OT Wages
CELLCOM ISRAEL: Supreme Court Approves Settlement Agreement
CHAVIN GROUP: Class Seeks to Recover Minimum and Overtime Wages
DEL MONTE: Mediation in Calif. Wage Suit Set for March 20
DEL MONTE: Discovery Commenced in Chicken Jerky Treats Suit
DEL MONTE: Four Chicken Jerky Complaints Consolidated
DR HORTON: NLRB Invalidates Arbitration Agreement Without Waiver
EASTMAN CHEMICAL: Faces "Vantap" Suit Over January 2014 Spill
ELBIT IMAGING: Noteholders Appeal Plan of Arrangement Approval
ELECTRONIC ARTS: Faces "Mastro" Securities Suit in California
EMCORE CORPORATION: Stipulation Ended GGE-Related Litigation
EMPLOYMENT NETWORK: FindTheRightJob Sued Over TCPA Violations
FRANCESCA'S HOLDINGS: Faces "Ortuzar" & Pension Fund Suits in SDNY
GLG LIFE: Court Grants Motion to Dismiss Securities Class Action
HI-GENE'S JANITORIAL: Fails to Pay Overtime Wages, Suit Claims
INTL FCSTONE: Faces "Woebel" Securities Class Suit in New York
KB KOOKMIN: May Need to Pay KRW86 Bil. to Settle Class Action
LINN ENERGY: Agreed to Settle Berry Stockholder Class Action
MEDICENTRES CANADA: Hundreds of Albertans Sign Up for Class Action
MIDLAND CREDIT: Accused of Violating Fair Debt Collection Act
MIDLAND FUNDING: Has No Right to Charge 5% Interest, Suit Says
MORGAN STANLEY: Agrees to Pay $1.25BB to Resolve Securities Claims
NEIMAN MARCUS: Faces "Frank" Suit in New York Over Data Breach
NTS REALTY: Class Action Settlement Gets Preliminary Approval
SELMAN ASSOCIATES: Sued by Mud Loggers Over Unpaid Overtime
SINGLE TOUCH: Seeks Dismissal of "Ibey" Class Action
SOUTHWEST CREDIT: Fails to Pay All Hours Worked, Collector Claims
SPOKEO INC: Appeals Court Allows Consumer's FCRA Suit to Proceed
STERLING BANCORP: Inked Memorandum of Understanding in Class Suit
TARGET CORP: Faces "Putnam" Suit Over Data Security Breach
TARGET CORP: Provost Umphrey Law Firm Files Class Action
TOG HOTELS: Class Seeks to Recover Unpaid Minimum and OT Wages
UBS AG: Faces Class Actions Over Forex Manipulation
VIOLIN MEMORY: Facing Lawsuits in ND Calif. Over IPO
WAWA INC: Fails to Design Fully Accessible POS Devices, Suit Says
WESTERN EXPRESS: Class Seeks to Redress FLSA Violations
WHJ ENTERPRISE: Fails to Pay Wages Under FLSA, Fla. Suit Says
WRIGHT SCAPES: Fails to Pay Overtime Wages, Florida Suit Claims
* Assured Research Expects "Third Wave" of Asbestos Litigation
* U.S. Vehicle Recalls in 2013 Reach Nine-Year High
*********
ALPHA NATURAL: $265MM Accord Reached in Massey Shareholder Suit
---------------------------------------------------------------
In early December, Alpha Natural Resources, Inc., reached a
proposed agreement with the plaintiffs in the securities class
action brought by Massey stockholders on all remaining material
terms of the $265 million settlement, including that the
settlement payment will be made in cash, according to the
Company's Form 8-K dated December 9, 2013, filed with the U.S.
Securities and Exchange Commission on December 9, 2013.
The Company had participated in mediation with the plaintiffs in
the securities class action brought by Massey stockholders in the
wake of the explosion at Massey's Upper Big Branch mine. In
October 2013, these discussions resulted in a tentative
understanding between the parties to settle the case for $265
million, with other material terms, including the form of
consideration, to be determined.
In early December, in continued mediation discussions, the parties
reached agreement on all remaining material terms of settlement,
including that the settlement payment will be made in cash. The
settlement remains subject to definitive documentation, and will
require the approval of the United States District Court for the
Southern District of West Virginia (the "Court"). If approved by
the Court, the settlement will result in the dismissal of the
action. The Company expects insurance recoveries of approximately
$70 million to help cover the cost of the settlement. Whether the
Court will approve the settlement, and the timing of any such
approval, remains uncertain.
Alpha Natural Resources, Inc. (Alpha) is a supplier and exporter
of metallurgical coals for use in the steel-making process and a
supplier of thermal coal to electric utilities and manufacturing
industries, as well as a exporter of thermal coal. As of December
31, 2012, the Company operated 107 mines and 26 coal preparation
plants in Northern and Central Appalachia and the Powder River
Basin. The Company operates in two segments: Eastern Coal
Operations and Western coals Operations. Eastern Coal Operations
consists of the mines in Northern and Central Appalachia, the
Company's coal brokerage activities and its road construction
business. Western Coal Operations consists of two Powder River
Basin mines in Wyoming. The Company uses five different mining
techniques to extract coal from the ground, which include longwall
mining, room-and-pillar mining, truck-and-shovel mining, truck and
front-end loader mining and highwall mining.
ASTON MARTIN: Recalls 17,590 Sports Cars Over Pedal Molding Issues
------------------------------------------------------------------
The Associated Press reports that British luxury carmaker
Aston Martin says it is recalling 17,590 sports cars because of a
problem with the accelerator pedal molding.
The company said on Feb. 5 there had not been any accidents or
injuries stemming from the fault, which can cause the engine to
idle unexpectedly.
The global recall will affect all of the company's left-hand drive
cars made between late 2007 and the end of 2013. Right -hand
drive cars made between May 2012 and December 2013 also will be
recalled.
The new Vanquish model is not affected.
The company says molding from a Chinese supplier was found to be
defective.
The Aston Martin is regarded as one of the world's finest sports
car and has long benefited from its association with the James
Bond films.
BANK OF AMERICA: Faces Suit Over Residential "Short Sale" Program
-----------------------------------------------------------------
Joseph and Gina Haber, on behalf of themselves and all others
similarly situated v. Bank of America, N.A. and REDC Default
Solutions, Case No. 2:14-cv-00169-GP (E.D. Pa., January 13, 2014)
arises from a residential "short sale" program operated by the
Defendants, pursuant to which they (a) improperly obtained
consumer reports and other information concerning the Plaintiffs
and Class members; and (b) misled and deceived the Plaintiffs and
Class members about debts they allegedly owed, the nature of the
short sale program, and the ability of the short sale program to
resolve the alleged debts.
Headquartered in Charlotte, North Carolina, Bank of America is one
of the nation's largest servicers of residential mortgages and,
during the period relevant to this case, was the servicer of the
Habers' mortgage.
REDC Default Solutions is a privately held entity headquartered in
Irvine, California. REDC's business is to work directly with
homeowners, Realtors and lenders to list and close Short Sales
efficiently.
The Plaintiffs are represented by:
Noah I. Axler
Michael D. Donovan
DONAVAN AXLER, LLC
1845 Walnut Street, Suite 1100
Philadelphia, PA 19103
Telephone: (215) 732-6067
Facsimile: (215) 732-8060
E-mail: naxler@donovanaxler.com
mdonovan@donovanaxler.com
BEST BUY: Filed Motion to Reconsider Order in Securities Suit
-------------------------------------------------------------
Best Buy Co., Inc., has filed a Motion to Reconsider the Court's
August 5 Order and also a Motion to Certify that Order for
Interlocutory Review by the Eighth Circuit Court of Appeals
regarding the Company's motion to dismiss a complaint alleging
that the Company and other defendants have violated the Securities
Exchange Act in connection with press releases and other
statements relating to the Company's fiscal 2011 earnings guidance
that had been made available to the public, according to the
Company's Form 10-Q filed on December 9, 2013, with the U.S.
Securities and Exchange Commission for the quarterly period ended
November 2, 2013.
The Company states: "In February 2011, a purported class action
lawsuit captioned, IBEW Local 98 Pension Fund, individually and on
behalf of all others similarly situated v. Best Buy Co., Inc., et
al., was filed against us and certain of our executive officers in
the U.S. District Court for the District of Minnesota. This
federal court action alleges, among other things, that we and the
officers named in the complaint violated Sections 10(b) and 20A of
the Exchange Act and Rule 10b-5 under the Exchange Act in
connection with press releases and other statements relating to
our fiscal 2011 earnings guidance that had been made available to
the public. Additionally, in March 2011, a similar purported class
action was filed by a single shareholder, Rene LeBlanc, against us
and certain of our executive officers in the same court. In July
2011, after consolidation of the IBEW Local 98 Pension Fund and
Rene LeBlanc actions, a consolidated complaint captioned, IBEW
Local 98 Pension Fund v. Best Buy Co., Inc., et al., was filed and
served.
"We filed a motion to dismiss the consolidated complaint in
September 2011, and in March 2012, subsequent to the end of fiscal
2012, the court issued a decision dismissing the action with
prejudice. In April 2012, the plaintiffs filed a motion to alter
or amend the court's decision on our motion to dismiss. In October
2012, the court granted plaintiff's motion to alter or amend the
court's decision on our motion to dismiss in part by vacating such
decision and giving plaintiff leave to file an amended complaint,
which plaintiff did in October 2012. We filed a motion to dismiss
the amended complaint in November 2012 and all responsive
pleadings were filed in December 2012.
"A hearing was held on April 26, 2013. On August 5, 2013, the
court issued an order granting our motion to dismiss in part and,
contrary to its March 2012 order, denying the motion to dismiss in
part, holding that certain of the statements alleged to have been
made were not forward looking statements and therefore were not
subject to the "safe-harbor" provisions of the Private Securities
Litigation Reform Act (PSLRA).
"We filed a Motion to Reconsider the August 5 Order and also a
Motion to Certify that Order for Interlocutory Review by the
Eighth Circuit Court of Appeals. Decisions on those motions are
pending. We continue to believe that these allegations are without
merit and intend to vigorously defend our company in this matter."
The Company also disclosed that, "In June 2011, a purported
shareholder derivative action captioned, Salvatore M. Talluto,
Derivatively and on Behalf of Best Buy Co., Inc. v. Richard M.
Schulze, et al., as Defendants and Best Buy Co., Inc. as Nominal
Defendant, was filed against both present and former members of
our Board of Directors serving during the relevant periods in
fiscal 2011 and us as a nominal defendant in the U.S. District
Court for the State of Minnesota. The lawsuit alleges that the
director defendants breached their fiduciary duty, among other
claims, including violation of Section 10(b) of the Exchange Act
and Rule 10b-5 thereunder, in failing to correct public
misrepresentations and material misstatements and/or omissions
regarding our fiscal 2011 earnings projections and, for certain
directors, selling stock while in possession of material adverse
non-public information.
"Additionally, in July 2011, a similar purported class action was
filed by a single shareholder, Daniel Himmel, against us and
certain of our executive officers in the same court. In November
2011, the respective lawsuits of Salvatore M. Talluto and Daniel
Himmel were consolidated into a new action captioned, In Re: Best
Buy Co., Inc. Shareholder Derivative Litigation, and a stay
ordered until after a final resolution of the motion to dismiss in
the consolidated IBEW Local 98 Pension Fund v. Best Buy Co., Inc.,
et al. case.
"The plaintiffs in the securities actions seek damages, including
interest, equitable relief and reimbursement of the costs and
expenses they incurred in the lawsuits. We believe the
allegations in the above securities actions are without merit, and
we intend to defend these actions vigorously. Based on our
assessment of the facts underlying the claims in the above
securities actions, their respective procedural litigation
history, and the degree to which we intend to defend our company
in these matters, the amount or range of reasonably possible
losses, if any, cannot be estimated."
Best Buy Co., Inc. is a multinational retailer of consumer
electronics, computing and mobile phone products, entertainment
products, appliances and related services. The Company operates
retail stores and call centers, and conducts online retail
operations under a range of brand names, such as Best Buy
(BestBuy.com, BestBuy.ca), Best Buy Mobile (BestBuyMobile.com),
The Carphone Warehouse (CarphoneWarehouse.com), Five Star, Future
Shop (FutureShop.ca), Geek Squad, Magnolia Audio Video, Pacific
Sales and The Phone House (PhoneHouse.com). During the fiscal year
ended March 3, 2012 (fiscal 2012), it operated in two segments:
Domestic and International. During fiscal 2012, it opened 135 new
stores and closed five stores in its Domestic segment. During
fiscal 2012, it opened 219 new stores, within its Best Buy Europe
and Five Star operations, and closed 114 stores in its
International segment, within its Best Buy Europe business.
BOOKLET BINDING: Class Suit Alleges Violations of WARN Act
----------------------------------------------------------
Maria Sanchez, on behalf of herself and all others similarly
situated, Benito J. Cortes and Carlos Camacho v. Booklet Binding,
Inc., d/b/a Team Services, Case No. 1:14-cv-00215 (N.D. Ill.,
January 13, 2014) alleges violations of the Worker Adjustment and
Restraining Notification Act.
The Plaintiffs are represented by:
Carol Tran Nguyen, Esq.
Michael Paul Persoon, Esq.
Thomas Howard Geoghegan, Esq.
Sean Morales Doyle, Esq.
DESPRES SCHWARTZ & GEOGHEGAN
77 West Washington Street, Suite 711
Chicago, IL 60602
Telephone: (312) 372-2511
E-mail: caroltran_2000@yahoo.com
mike.persoon@gmail.com
admin@dsgchicago.com
smoralesdoyle@dsgchicago.com
- and -
Paul Luka, Esq.
AMATORE & ASSOCIATES, PC
120 S. State Street, Suite 400
Chicago, IL 60603
Telephone: (312) 236-9825
E-mail: pluka@amatorelaw.com
BRITAX: Recalls 216,000 Strollers Due to Injury Risk
----------------------------------------------------
KVUE.com reports that about 216,000 Britax strollers have been
recalled in the United States and 8,800 in Canada, due to injuries
and a partial fingertip amputation.
This recall involves Britax B-Agile, B-Agile Double and BOB Motion
strollers. The single and double strollers were sold in various
color schemes, including black, red, kiwi, sandstone, navy and
orange.
They were manufactured between March 2011 and June 2013 and have
the following model numbers:
- U341763
- U341764
- U341782
- U341783 for the B-Agile strollers;
- U361818 or U361819 for the B-Agile Double strollers
- U391820, U391821 and U391822 for the BOB Motion strollers.
The model number and the manufacture date in YYYY/MM/DD format can
be found on label located on the inside of the stroller's metal
frame near the right rear wheel.
Britax has received eight incident reports. Incidents include one
partial fingertip amputation, one broken finger and severe finger
lacerations.
The hinge on the stroller's folding mechanism can partially
amputate consumers' fingertips, break their fingers or cause
severe lacerations, among other injuries, when they press the
release button while pulling on the release strap.
Consumers should stop using the recalled strollers immediately and
contact Britax to receive a free repair kit. Consumers can
contact Britax: Toll-free at (866) 204-1665 from 8:30 a.m. to 6:00
p.m. ET Monday through Thursday and 8:30 a.m. to 5:00 p.m.
Friday, visit the company's websites at www.britaxusa.com or
www.bobgear.com and click on "Safety Notice" at the top right
corner or on "Learn More" at the bottom center of the page, or
e-mail strollerrecall@britax.com for more information.
The strollers were sold at major retailers and juvenile products
stores nationwide, and online at Amazon.com, albeebaby.com,
buybuybaby.com, diapers.com, ToysRUs.com and other online
retailers from May 2011 through June 2013 for between $250 and
$450.
BROADWAY RESTAURANT: Suit Seeks to Recover Minimum and OT Wages
---------------------------------------------------------------
Mayra Piedrahita and Isabel Alvarez, on behalf of themselves and
all others similarly situated v. 3801 Broadway Restaurant Corp.
d/b/a Las Margaritas, Ruth Jara, and Milton Jara, Case No. 1:14-
cv-00226-FB-CLP (E.D.N.Y., January 13, 2014) is brought to recover
unpaid minimum wage, overtime and spread of hours pay, and other
relief pursuant to the Fair Labor Standards Act and the New York
Labor Law.
3801 Broadway Restaurant Corp. is a New York corporation that owns
and operates Las Margaritas, a restaurant located in Astoria
New York. Las Margaritas prepares and serves Mexican cuisine for
customers on its premises. The Individual Defendants are owners
of Las Margaritas.
The Plaintiffs are represented by:
Louis Pechman, Esq.
Jessica N. Tischler, Esq.
BERKE-WEISS & PECHMAN LLP
488 Madison Avenue, 11th Floor
New York, NY 10022
Telephone: (212) 583-9500
Facsimile: (212) 308-8582
E-mail: pechman@bwp-law.com
tischler@bwp-law.com
CELLCOM ISRAEL: Supreme Court Approves Settlement Agreement
-----------------------------------------------------------
Cellcom Israel Ltd. on Feb. 3 disclosed that the Supreme Court
annulled the previously reported District Court judgment from
December 2011 against the Company in a class action, and approved
a settlement agreement according to which the Company shall repay
the sum of approximately NIS11 million plus CPI linkage
differences. An additional 12.5% of the sum will be paid to the
plaintiffs and their attorneys.
The class action was filed against the Company in March 2008, for
an estimated sum of NIS440 million and alleged that the Company
breached the agreements with its subscribers by charging them for
a call detail service that was previously provided free of charge,
without obtaining their consent.
The Company has recorded a provision in its financial statements
for the entire sum set in the annulled District Court judgment
(approximately NIS22 million plus CPI linkage differences and an
additional approximately 11% of the sum as the plaintiff and their
attorneys fees).
About Cellcom Israel Ltd.
Cellcom Israel Ltd., established in 1994, is the leading Israeli
cellular provider; Cellcom Israel provides its approximately 3.156
million subscribers (as at September 30, 2013) with a broad range
of value added services including cellular and landline telephony,
roaming services for tourists in Israel and for its subscribers
abroad and additional services in the areas of music, video,
mobile office etc., based on Cellcom Israel's technologically
advanced infrastructure.
CHAVIN GROUP: Class Seeks to Recover Minimum and Overtime Wages
---------------------------------------------------------------
Dominika Jakubiak, Janeth Balabarca, Esther Jimenez, and Macario
Mendez-Santiago on behalf of themselves and all others similarly
situated v. Chavin Group Inc. d/b/a Chimu Bistro, Frily
Iparraguirre a/k/a Freddy Iparraguirre, and Mario Santillan, Case
No. 1:14-cv-00251-MKB-CLP (E.D.N.Y., January 13, 2014) seeks to
recover minimum wages, overtime compensation, spread-of-hours pay
and other wages for the Plaintiffs and their similarly situated
co-workers -- servers bartenders, runners, bussers, and all other
"tipped workers" -- who work or have worked for the Defendants.
Chimu Bistro is a Peruvian restaurant located in the heart of
Williamsburg in Brooklyn, New York. Chimu Bistro is owned,
operated, and controlled by Chavin Group Inc., Freddy
Iparraguirre, and Mario Santillan.
The Plaintiffs are represented by:
Joseph A. Fitapelli, Esq.
Brian S. Schaffer, Esq.
Frank J. Mazzaferro, Esq.
FITAPELLI & SCHAFFER, LLP
475 Park Avenue South, 12th Floor
New York, NY 10016
Telephone: (212) 300-0375
Facsimile: (212) 564-5468
E-mail: jfitapelli@fslawfirm.com
bschaffer@fslawfirm.com
fmazzaferro@fslawfirm.com
DEL MONTE: Mediation in Calif. Wage Suit Set for March 20
---------------------------------------------------------
According to Del Monte Corporation's Form 10-Q report filed on
December 9, 2013, with the U.S. Securities and Exchange Commission
for the quarterly period ended October 27, 2013, mediation in a
complaint against the Company alleging, inter alia, failure to
provide meal and rest periods and pay wages properly in violation
of various California wage and hour statutes has been scheduled
for March 20, 2014.
On April 19, 2013, Plaintiff filed a complaint on behalf of
himself and all other similarly situated employees in Superior
Court of California, Alameda County (Montgomery v. Del Monte)
alleging, inter alia, failure to provide meal and rest periods and
pay wages properly in violation of various California wage and
hour statutes. On May 24, 2013, Plaintiff filed its First Amended
Complaint. The Court granted the parties' Application to Transfer
to Kings County on June 14, 2013. Mediation has been scheduled for
March 20, 2014. The Company denies these allegations and intends
to vigorously defend itself. The Company cannot at this time
reasonably estimate a range of exposure, if any, of the potential
liability.
Del Monte Corporation is one of the largest makers of branded
canned fruit, vegetables, and broths in the US. Del Monte Foods
manufactures tomato-based items, such as ketchup and tomato sauce,
under brands College Inn, Del Monte, and Contadina. It owns no
farms, but instead purchases fruits and vegetables from growers.
The company helps pets grow, too, with a stable of popular brands:
9Lives, Gravy Train, Milk-Bone, and Meow Mix. Subsidiary Del Monte
Foods makes private-label products as well as ingredients for
other food makers, and supplies products to food service
operators. The company is owned by a trio of private equity firms
led by Kohlberg Kravis Roberts (KKR).
DEL MONTE: Discovery Commenced in Chicken Jerky Treats Suit
-----------------------------------------------------------
According to Del Monte Corporation's Form 10-Q report filed on
December 9, 2013, with the U.S. Securities and Exchange Commission
for the quarterly period ended October 27, 2013, discovery has
commenced on a putative class action complaint against the Company
alleging that its Chicken Jerky Treats contain "poisonous
antibiotics and other potentially lethal substances."
On January 31, 2013, a putative class action complaint was filed
against the Company in the Circuit Court of Jackson County,
Missouri (Harmon v. Del Monte) alleging that Milo's Kitchen
chicken jerky treats ("Chicken Jerky Treats") and Milo's Kitchen
Chicken Grillers Recipe home-style dog treats contain "poisonous
antibiotics and other potentially lethal substances." Plaintiff
seeks restitution and damages not to exceed $75,000 per class
member and the aggregated claim for damages of the class not to
exceed $5.0 million under the Missouri Merchandising Practices
Act. The complaint also alleges the Company continued to sell its
Chicken Jerky Treats in Jackson County, Missouri after it
announced its recall of the product on January 9, 2013. The
complaint seeks certification as a class action. The Company
successfully removed this case to federal court on March 12, 2013.
On April 9, 2013, Plaintiff filed its Second Amended Class Action
Petition against the Company. The Company filed its Motion to
Transfer to the Western District of Pennsylvania on April 19, 2013
and its Motion to Stay Pending the Motion to Transfer on April 25,
2013. The Motion to Stay was granted the same day it was filed. On
May 6, 2013, Plaintiffs filed their Opposition to Defendant's
Motion to Transfer. The Company filed its Reply in Support of its
Motion to Transfer on May 23, 2013. The Court denied the Company's
Motion to Transfer on July 22, 2013. The Company filed its Answer
on August 13, 2013 and discovery has commenced. The Company denies
these allegations and intends to vigorously defend itself. The
Company cannot at this time reasonably estimate a range of
exposure, if any, of the potential liability.
Del Monte Corporation is one of the largest makers of branded
canned fruit, vegetables, and broths in the US. Del Monte Foods
manufactures tomato-based items, such as ketchup and tomato sauce,
under brands College Inn, Del Monte, and Contadina. It owns no
farms, but instead purchases fruits and vegetables from growers.
The company helps pets grow, too, with a stable of popular brands:
9Lives, Gravy Train, Milk-Bone, and Meow Mix. Subsidiary Del Monte
Foods makes private-label products as well as ingredients for
other food makers, and supplies products to food service
operators. The company is owned by a trio of private equity firms
led by Kohlberg Kravis Roberts (KKR).
DEL MONTE: Four Chicken Jerky Complaints Consolidated
-----------------------------------------------------
Aeparate putative class action complaints filed against Del Monte
Corporation in U.S. District Court for the Northern District of
California alleging product liability claims relating to Chicken
Jerky Treats were consolidated on August 16, 2013, according to
the Company's Del Monte Corporation's Form 10-Q report filed on
December 9, 2013, with the U.S. Securities and Exchange Commission
for the quarterly period ended October 27, 2013.
On September 6, 2012, October 12, 2012 and October 16, 2012, three
separate putative class action complaints were filed against the
Company in U.S. District Court for the Northern District of
California (Langone v. Del Monte, Ruff v. Del Monte, and Funke v.
Del Monte, respectively) alleging product liability claims
relating to Chicken Jerky Treats. Specifically, the complaints
allege that Plaintiffs' dogs became ill as a result of consumption
of Chicken Jerky Treats. The complaints also allege that the
Company breached its warranties and California's consumer
protection laws. Each of the complaints seeks certification as a
class action and damages in excess of $5.0 million. The Company
denies these allegations and intends to vigorously defend itself.
On December 18, 2012, Plaintiffs filed a motion to relate and
consolidate the Langone, Ruff and Funke matters. The Company
agreed that the cases are related but argued in its response that
they should not be consolidated. The Court ordered the cases are
related in an Order on January 24, 2013. In the Langone case, the
Company filed a Motion to Transfer/Dismiss on February 1, 2013.
Plaintiff in the Langone matter voluntarily dismissed his
Complaint without prejudice on February 21, 2013 and re-filed in
the U.S. District Court for the Western District of Pennsylvania
on May 21, 2013. The Company filed its Motion to Dismiss in the
Langone case with the U.S. District Court for the Western District
of Pennsylvania on August 2, 2013. The individual claims in the
Langone case were settled for a de minimus amount, and a
stipulation to dismiss with prejudice was filed on November 25,
2013. On April 9, 2013, the Court transferred Ruff and Funke to
the U.S. District Court for the Western District of Pennsylvania
but denied without prejudice Defendant's motions to consolidate
and dismiss. On April 23, 2013, the Company filed its Motion to
Dismiss in Ruff and Funke with the U.S. District Court for the
Western District of Pennsylvania and its Reply in Support of its
Motion to Dismiss in both cases on June 3, 2013. The Company
cannot at this time reasonably estimate a range of exposure, if
any, of the potential liability.
On July 19, 2012, a putative class action complaint was filed
against the Company in U.S. District Court for the Western
District of Pennsylvania (Mazur v. Del Monte) alleging product
liability claims relating to Chicken Jerky Treats. Specifically,
the complaint alleges that Plaintiff's dog became ill and had to
be euthanized as a result of consumption of Chicken Jerky Treats.
The complaint also alleges that the Company breached its
warranties and Pennsylvania's consumer protection laws. The
complaint seeks certification as a class action and damages in
excess of $5.0 million. The Company denies these allegations and
intends to vigorously defend itself.
On August 3, 2012, Plaintiff's counsel filed a Motion to
Consolidate the previously filed two similar class actions against
Nestle Purina Petcare Company, owner of the Waggin' Train brand of
chicken jerky treats, in U.S. District Court for the Northern
District of Illinois under the federal rules for multi-district
litigation ("MDL"). Plaintiff's Motion also sought to include the
case against the Company in the proposed MDL consolidation as a
"related case." On September 28, 2012, the Court denied the MDL
Motion. The case will now proceed in the jurisdiction in which it
was originally filed. Plaintiff filed a Motion for Leave to
Commence Limited Discovery on the subject of the voluntary recall
of Chicken Jerky Treats on January 25, 2013. The Company filed its
response opposing the Motion on February 8, 2013. The Court denied
Plaintiff's Motion on March 12, 2013; thus, discovery is stayed
until the Court rules on the Company's Motion to Dismiss, which
was filed on September 24, 2012.
On May 24, 2013, the Judge in the matter issued a Report and
Recommendation stating that the Motion to Dismiss be granted as to
Plaintiff's claim for unjust enrichment and denied in all other
respects. The Company filed its Objections to the Report and
Recommendation on June 7, 2013. The Court issued an Order adopting
the Magistrate Judge's Report and Recommendation on June 25, 2013.
The Court denied the Company's Motion for Reconsideration on July
8, 2013. The Company filed its answer on August 2, 2013. The
Company cannot at this time reasonably estimate a range of
exposure, if any, of the potential liability.
On August 16, 2013, the Langone, Ruff, Funke and Mazur cases were
consolidated.
Del Monte Corporation is one of the largest makers of branded
canned fruit, vegetables, and broths in the US. Del Monte Foods
manufactures tomato-based items, such as ketchup and tomato sauce,
under brands College Inn, Del Monte, and Contadina. It owns no
farms, but instead purchases fruits and vegetables from growers.
The company helps pets grow, too, with a stable of popular brands:
9Lives, Gravy Train, Milk-Bone, and Meow Mix. Subsidiary Del Monte
Foods makes private-label products as well as ingredients for
other food makers, and supplies products to food service
operators. The company is owned by a trio of private equity firms
led by Kohlberg Kravis Roberts (KKR).
DR HORTON: NLRB Invalidates Arbitration Agreement Without Waiver
----------------------------------------------------------------
Patrick M. Muldowney, Esq. -- pmuldowney@bakerlaw.com -- at
BakerHostetler reports that the National Labor Relations Board in
D.R. Horton, Inc., 357 NLRB No. 184 (2012), held that requiring
employees to enter into an arbitration agreement containing a
class/collective action waiver violated the National Labor
Relations Act because the class action waiver inhibited employees
from engaging in protected concerted activity. Now, an NLRB
administrative law judge has found -- relying upon D.R. Horton --
that an employer's arbitration agreement that did not contain an
express prohibition on class or collective claims still ran afoul
of the Act since the employer intended to prohibit such claims.
Leslie's Poolmart, Inc., Case 21-CA-102332 (Jan. 17, 2014).
The Charging Party, Keith Cunningham, was employed by Leslie's
Poolmart in California as a retail assistant store manager from
September 2011 through September 2012. In connection with his
employment, Cunningham had entered into a Mutual Agreement to
Arbitrate, which required him to submit all claims arising from
his employment to arbitration, including claims alleging unpaid
wages. As stated above, the Arbitration Agreement did not limit
employees to pursuing individual claims, and it was silent as to
whether it barred employees from pursuing class or collective
claims.
After the termination of his employment, Mr. Cunningham filed an
action in state court alleging that Leslie's Poolmart failed to
properly pay him and similarly situated employees overtime
compensation. Leslie's Poolmart removed the case to federal court
and filed a motion to compel arbitration of Cunningham's
individual claims and to dismiss his class/collective action
claims based upon the terms of the Arbitration Agreement. The
court eventually granted the motion but allowed Mr. Cunningham to
proceed in arbitration on a representative claim based upon
California's Private Attorney General Act of 2004. Mr. Cunningham
also filed with the Board an unfair labor practice complaint
alleging that the Arbitration Agreement prohibited employees from
filing class or collective actions. The NLRB's General Counsel
issued a complaint against Leslie's Poolmart based upon
Cunningham's charge, which complaint was considered by
Administrative Law Judge Lisa D. Thompson on a stipulated record.
Judge Thompson agreed with the General Counsel in finding that
even though the Arbitration Agreement did not address class or
collective claims, Leslie's Poolmart committed an unfair labor
practice by seeking to utilize the Arbitration Agreement to bar
Cunningham's class and collective action claims (including by
filing in federal court a motion to dismiss the class/collective
claims). In so finding, Judge Thompson stated that she was bound
by the Board's decision in D.R. Horton to find that the
arbitration agreement violated the law. The Judge rejected
Leslie's Poolmart's argument that the Board's decision in D.R.
Horton was void because it was issued without the requisite quorum
for the Board -- the issue currently before the U.S. Supreme Court
in Noel Canning v. NLRB -- and she declined to stay consideration
of the issue pending the Supreme Court's ruling in Noel Canning.
She also declined to follow the Fifth Circuit Court of Appeals,
which had overturned the Board's decision in D.R. Horton, or to
find that Supreme Court precedent on the enforceability of
arbitration agreements under the Federal Arbitration Act
effectively preempted the Act. Judge Thompson stated that the
Supreme Court has not expressly overruled D.R. Horton and, thus,
the Board's decision controlled consideration of this case.
Finally, Judge Thompson found that Cunningham had filed his charge
with the Board in a timely fashion because Leslie's Poolmart had
engaged in a continuing violation with respect to enforcement of
its Arbitration Agreement, and that Cunningham had engaged in
protected concerted activity even though there was no evidence
that any other employee was involved in the initiation or
prosecution of the claim.
The ALJ's decision in Leslie's Poolmart creates yet another
potential landmine for employers wishing to utilize arbitration
agreements. While D.R. Horton invalidated class/collective action
waivers under the Act, Leslie's Poolmart suggests that arbitration
agreements must expressly permit an employee to bring a class or
collective action claims in arbitration. Since there are numerous
issues regarding the efficacy of handling class claims in an
arbitration context, employers may no longer want to implement
these agreements should these Board decisions stand. Of course,
all bets may be off if the Supreme Court invalidates the Board's
quorum in Noel Canning. Watch for the Court's decision this
spring.
EASTMAN CHEMICAL: Faces "Vantap" Suit Over January 2014 Spill
-------------------------------------------------------------
Vantap, LLC, d/b/a Vandalia Grill, a West Virginia Limited
Liability Company; Georgia Hamra, a West Virginia Resident; John
Sarver, d/b/a Mousie's Car Wash, a West Virginia Resident; Nitro
Car Care Center, LLC., a West Virginia Limited Liability Company;
Carolyn Burdette, a West Virginia Resident; Colors Salon and
Boutique, LLC, a West Virginia Limited Liability Company; Crystal
Goode, a West Virginia Resident; Michael Manypenny, a West
Virginia Resident, on behalf of themselves and all others
similarly situated v. Eastman Chemical Company, a Delaware
corporation; Freedom Industries, LLC, a West Virginia corporation;
West Virginia American Water Corporation, a West Virginia
corporation; and, Gary Southern, a West Virginia resident, Case
No. 2:14-cv-01374 (S.D. W. Va., January 13, 2014) arises from a
spill.
On January 9, 2014, about 300,000 West Virginians lost their water
supply after the discovery of a spill of a coal processing
chemical from a facility owned and operated by Freedom Industries,
LLC upstream from the West Virginia-American Water Corp. water
treatment plant. Had Freedom Industries LLC not breached its
duties under statutory and common law, the leak would have never
occurred, the Plaintiffs allege. They add that West Virginia
American Water Corp. should have recognized the risk presented by
this facility's presence just upstream from their intake, and
should have determined what chemicals were being used and assessed
the risk they presented to the water supply.
Eastman Chemical Company is a Delaware Corporation with its
principal place of business in Kingsport, Tennessee. Eastman as
the manufacturer and producer of the product bears legal
responsibility for damages stemming from the leak of 4-MCHM on
January 9, 2014, the Plaintiffs contend.
Freedom Industries, LLC, is a West Virginia company with its
principal place of business in Kanawha County, West Virginia.
Freedom Industries as the operator of the site bears legal
responsibility for the leak of 4-MCHM on January 9. West
Virginia-American Water Company is a West Virginia Corporation
headquartered in Charleston, West Virginia. Gary Southern is a
resident of Charleston, West Virginia. He allegedly bears
responsibility because of his personal role in directing
operations at the facility of Freedom Industries and his ownership
interest in the facility, which he sold to Freedom Industries.
The Plaintiffs are represented by:
Kevin W. Thompson, Esq.
David R. Barney, Jr., Esq.
THOMPSON BARNEY
2030 Kanawha Boulevard, East
Charleston, WV 25661
Telephone: (304) 235-4006
Facsimile: (304) 235-4009
E-mail: kwthompsonwv@gmail.com
drbarneywv@gmail.com
- and -
Van Bunch, Esq.
BONNETT FAIRBOURN FRIEDMAN & BALINT PC
2325 E. Camelback Road, Suite 300
Phoenix, AZ 85016
Telephone: (602) 274-1100
Facsimile: (602) 274-1199
E-mail: vbunch@bffb.com
- and -
P. Rodney Jackson, Esq.
LAW OFFICES OF ROD JACKSON
401 5th/3rd Center
700 Virginia Street East
Charleston, WV 25301
Telephone: (843) 780-6879
E-mail: prodjackson27@yahoo.com
- and -
Michael G. Stag, Esq.
Sean Cassidy, Esq.
Stephen H. Wussow, Esq.
Stuart H. Smith, Esq.
SMITH STAG
365 Canal Street, Suite 2850
New Orleans, LA 70130
Telephone: (504) 593-9600
Facsimile: (504) 593-9601
E-mail: mstag@smithstag.com
scassidy@smithstag.com
ssmith@smithstag.com
Freedom Industries, LLC is represented by:
Stephen L. Thompson, Esq.
BARTH & THOMPSON
P. O. Box 129
Charleston, WV 25321-0129
Telephone: (304) 342-7111
Facsimile: (304) 342-6215
E-mail: sthompson@barth-thompson.com
ELBIT IMAGING: Noteholders Appeal Plan of Arrangement Approval
--------------------------------------------------------------
Elbit Imaging Ltd. on Feb. 2 disclosed that, further to the
Company's announcement dated January 2, 2014 with respect to the
approval of the adjusted plan of arrangement submitted to the
Tel-Aviv Jaffa District Court in file No. 42576-02-13 by the
Court, that a holder of Series B Notes, which filed a purported
class action lawsuit against the Company with the Court on
April 11, 2013 as announced by the Company on April 15, 2013,
filed with the Israel Supreme Court an appeal arguing that the
Court erred in approving the Arrangement. It is noted that such
appellant holds approximately 0.1% of the total unsecured debt of
the Company. The Company rejects such argument and intends to
defend the case vigorously and is continuing with pursuing the
consummation of the Arrangement and the completion thereof.
About Elbit Imaging Ltd.
Elbit Imaging Ltd. operates in the following principal fields of
business: (i) Commercial and Entertainment Centers -- Initiation,
construction and sale of shopping and entertainment centers and
other mixed-use real property projects, predominantly in the
retail sector, located in Central and Eastern Europe and in India,
primarily through its subsidiary Plaza Centers N.V.
ELECTRONIC ARTS: Faces "Mastro" Securities Suit in California
-------------------------------------------------------------
Louis Mastro, Individually and on Behalf of All Others Similarly
Situated v. Electronic Arts, Inc., Andrew Wilson, Blake Jorgensen,
Patrick Soderlund, Frank D. Gibeau and Peter Robert Moore, Case
No. 3:14-cv-00188-SI (N.D. Cal., January 13, 2014) is a securities
class action brought on behalf of all purchasers of the common
stock of Electronic Arts between July 24, 2013, and December 4,
2013, seeking to pursue remedies pursuant to the Securities
Exchange Act of 1934.
During the Class Period, the Defendants issued materially false
and misleading statements highlighting the purported strength of
the Company's rollout of version 4 of Electronic Arts' all-
important Battlefield video game series that had provided
approximately 11% of its revenues in fiscal 2012, the Plaintiff
alleges.
Redwood City, California-based Electronic Arts develops, markets,
publishes, and distributes video game software content and
services that can be played by consumers on a variety of Internet
based electronic devices for video game consoles, personal
computers, mobile phones, tablets and electronic readers. The
Individual Defendants are directors and officers of the Company.
The Plaintiff is represented by:
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
Robert V. Prongay, Esq.
GLANCY BINKOW & GOLDBERG LLP
1925 Century Park East, Suite 2100
Los Angeles, CA 90067
Telephone: (310) 201-9150
Facsimile: (310) 201-9160
E-mail: lglancy@glancylaw.com
mmgoldberg@glancylaw.com
rprongay@glancylaw.com
- and -
Jeremy A. Lieberman, Esq.
Lesley F. Portnoy, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
lfportnoy@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
Ten South La Salle Street, Suite 3505
Chicago, IL 60603
Telephone: (312) 377-1181
Facsimile: (312) 377-1184
E-mail: pdahlstrom@pomlaw.com
The Defendants are represented by:
Alexander K. Talarides, Esq.
James Neil Kramer, Esq.
Robert P. Varian, Esq.
ORRICK HERRINGTON AND SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105
Telephone: (415) 773-5700
Facsimile: (415) 773-5759
E-mail: atalarides@orrick.com
jkramer@orrick.com
rvarian@orrick.com
EMCORE CORPORATION: Stipulation Ended GGE-Related Litigation
------------------------------------------------------------
EMCORE Corporation on December 5, 2012, entered into a stipulation
and agreement whereby the plaintiffs in the Derivative Actions
agreed to dismiss their claims with prejudice, effectively ending
the Derivative Actions and the last remaining Green and Gold
Energy-related litigation, according to the Company's Form 10-K
filed on December 9, 2013, with the U.S. Securities and Exchange
Commission for the quarterly period ended September 30, 2013.
On December 23, 2008, Plaintiffs Maurice Prissert and Claude
Prissert filed a purported stockholder class action (the "Prissert
Class Action") pursuant to Federal Rule of Civil Procedure 23
allegedly on behalf of a class of Company shareholders against the
Company and certain of its present and former directors and
officers (the "Individual Defendants") in the United States
District Court for the District of New Mexico captioned, Maurice
Prissert and Claude Prissert v. EMCORE Corporation, Adam Gushard,
Hong Q. Hou, Reuben F. Richards, Jr., David Danzilio and Thomas
Werthan, Case No. 1:08cv1190 (D.N.M.). The Complaint alleges that
the Company and the Individual Defendants violated certain
provisions of the federal securities laws, including Section 10(b)
of the Exchange Act, arising out of the Company's disclosure
regarding its customer Green and Gold Energy ("GGE") and the
associated backlog of GGE orders with the Company's Photovoltaics
business segment.
The Complaint in the Prissert Class Action seeks, among other
things, an unspecified amount of compensatory damages and other
costs and expenses associated with the maintenance of the action.
On or about February 12, 2009, a second purported stockholder
class action (Mueller v. EMCORE Corporation et al., Case No.
1:09cv 133 (D.N.M.)) (the "Mueller Class Action"), together with
the Prissert Class Action, the "Class Actions") was filed in the
United States District Court for the District of New Mexico
against the same defendants named in the Prissert Class Action,
based on substantially the same facts and circumstances,
containing substantially the same allegations and seeking
substantially the same relief.
On September 25, 2009, the court issued an order consolidating
both the Prissert and Mueller class actions into one consolidated
proceeding, but denied plaintiffs motions for appointment of a
lead plaintiff or lead plaintiff's counsel. On July 15, 2010, the
court appointed IBEW Local Union No. 58 Annuity Fund to serve as
lead plaintiff ("IBEW"), but denied, without prejudice, IBEW's
motion to appoint lead counsel.
On August 24, 2010, IBEW filed a renewed motion for appointment as
lead plaintiff and for approval of its selection of counsel. IBEW
filed a renewed motion for appointment of counsel on May 13, 2011
which the Company did not oppose. By Order dated September 30,
2011, the court appointed counsel to act on behalf of the
purported class.
On November 14, 2011, the plaintiffs filed a Consolidated Amended
Complaint, again alleging violations of the federal securities
laws arising out of the Company's disclosure regarding its
customer GGE and the associated backlog of GGE orders with the
Company's Photovoltaics business segment (the "Amended
Complaint").
The Company filed a motion to dismiss the Amended Complaint on
January 9, 2012, and on September 28, 2012, the court ruled in its
favor.
On November 9, 2012, the Company entered into a stipulation and
agreement with the lead class representative, pursuant to which
the parties agreed to release each other from all claims related
to the matter and not to appeal the dismissal of the Amended
Complaint, effectively ending this litigation.
On January 23, 2009, Plaintiff James E. Stearns filed a purported
stockholder derivative action (the "Stearns Derivative Action") on
behalf of the Company against the Individual Defendants, as well
as the Company as nominal defendant in the Superior Court of New
Jersey, Atlantic County, Chancery Division (James E. Stearns,
derivatively on behalf of EMCORE Corporation v. Thomas J. Russell,
Robert Bogomolny, Charles Scott, John Gillen, Reuben F. Richards,
Jr., Hong Q. Hou, Adam Gushard, David Danzilio and Thomas Werthan,
Case No. Atl-C-10-09). This action is based on essentially the
same factual contentions as the Prissert Class Action, and alleges
that the Individual Defendants engaged in improprieties and
violations of law in connection with the reporting of the GGE
backlog. The Stearns Derivative Action seeks several forms of
relief, allegedly on behalf of the Company, including, among other
things, damages, equitable relief, corporate governance reforms,
an accounting of, rescission of, restitution of, and costs and
disbursements of the lawsuit.
On March 11, 2009, Plaintiff Gary Thomas filed a second purported
shareholder derivative action (the "Thomas Derivative Action";
together with the Stearns Derivative Action, the "Derivative
Actions") in the U.S. District Court for the District of New
Mexico against the Company and certain of the Individual
Defendants (Gary Thomas, derivatively on behalf of EMCORE
Corporation v. Thomas J. Russell, Robert Bogomolny, Charles Scott,
John Gillen, Reuben F. Richards, Jr., Hong Q. Hou, and EMCORE
Corporation, Case No. 1.09-cv-00236, (D.N.M.)). The Thomas
Derivative Action makes substantially the same allegations as the
Stearns Derivative Action and seeks essentially the same relief.
The Stearns Derivative Action and the Thomas Derivative action
were consolidated before a single judge in Somerset County, New
Jersey.
Based on the dismissal of the Class Actions, on December 5, 2012,
the Company entered into a stipulation and agreement whereby the
plaintiffs in the Derivative Actions agreed to dismiss their
claims with prejudice, effectively ending the Derivative Actions
and the last remaining Green and Gold-related litigation. No
payment was made in connection with the dismissal of the Class
Actions or the Derivative Actions.
EMCORE Corporation (EMCORE) offers a portfolio of compound
semiconductor-based products for the broadband, fiber optics,
space and solar power markets. The Company operates in two
segments: Fiber Optics and Photovoltaics. EMCORE's Fiber Optics
segment offers optical components, subsystems and systems for
high-speed data and telecommunications, cable television (CATV)
and fiber-to-the-premises (FTTP) networks. The Company's
Photovoltaics segment provides products for both space and
terrestrial applications. Its products serve the
telecommunications, datacom, CATV, FTTP, high-performance
computing, defense and homeland security, space and terrestrial
solar power markets. In May 2012, the Company completed the sale
of its Vertical Cavity Surface Emitting Lasers (VCSEL)-based
product lines to Sumitomo Electric Device Innovations U.S.A., Inc.
(SEDU), a subsidiary of Sumitomo Electric Industries, LTD (SEI).
EMPLOYMENT NETWORK: FindTheRightJob Sued Over TCPA Violations
-------------------------------------------------------------
Jacqueline Rice, Individually and On Behalf of All Others
Similarly Situated v. The Employment Network, LLC d/b/a
FindTheRightJob.com, Case No. 1:14-cv-00245-WFK-CLP (E.D.N.Y.,
January 13, 2014) alleges that the Company negligently, knowingly,
and willfully contacting the Plaintiff on her cellular telephone,
in violation of the Telephone Consumer Protection Act.
The Employment Network, LLC, doing business as
FindTheRightJob.com, is a New York business entity headquartered
in Staten Island, New York.
The Plaintiff is represented by:
Ross H. Schmierer, Esq.
PARIS ACKERMAN & SCHMIERER LLP
1200 Avenue of the Americas, 3rd Floor
New York, NY 10036
Telephone: (212) 354-0030
Facsimile: (973) 629-1246
E-mail: ross@paslawfirm.com
- and -
Todd M. Friedman, Esq.
LAW OFFICES OF TODD M. FRIEDMAN
369 S. Doheny Dr., #415
Beverly Hills, CA 90211
Telephone: (877) 206-4741
Facsimile: (866) 633-0228
E-mail: tfriedman@attorneysforconsumers.com
- and -
Joshua B. Swigart, Esq.
HYDE & SWIGART
2221 Camino Del Rio South, Suite 101
San Diego, CA 92108-3551
Telephone: (619) 233-7770
Facsimile: (619) 297-1022
E-mail: josh@westcoastlitigation.com
- and -
Abbas Kazerounian, Esq.
KAZEROUNILAW GROUP, APC
245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
Telephone: (800) 400-6808
Facsimile: (800) 520-5523
E-mail: ak@kazlg.com
FRANCESCA'S HOLDINGS: Faces "Ortuzar" & Pension Fund Suits in SDNY
------------------------------------------------------------------
Francesca's Holdings Corporation disclosed in its Form 10-Q filed
on December 9, 2013, with the U.S. Securities and Exchange
Commission for the quarterly period ended November 2, 2013, that
on September 27, 2013, the Company and certain of its current
directors and officers were named as defendants in an action
entitled Ortuzar v. Francesca's Holdings Corp., et al., which was
filed in the United States District Court for the Southern
District of New York.
The action purports to have been brought on behalf of purchasers
of the Company's publicly traded securities between March 20, 2013
and September 3, 2013 and alleges that the defendants made false
and misleading statements in certain public disclosures regarding
the Company's current and future business and financial condition
in violation of Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934.
A substantially related class action lawsuit, entitled West Palm
Beach Police Pension Fund v. Francesca's Holdings Corp., et al.,
was filed on November 4, 2013 in the United States District Court
for the Southern District of New York, on behalf of purchasers of
the Company's publicly traded securities between January 10, 2012
and September 3, 2013 alleging violations of Sections 10(b) and
20(a) of the Securities Exchange Act of 1934 and Sections 11,
12(a) and 15 of the Securities Act of 1933. This action added
additional defendants, including certain of the Company's current
and former directors and officers.
Both of the purported class action lawsuits seek damages in an
unspecified amount. The Company believes that the allegations
contained in these complaints are without merit and intends to
vigorously defend itself against all claims. A reasonable estimate
of the amount of any possible loss or range of loss cannot be made
at this time.
Francesca's Holdings Corporation (Holdings) is a holding company.
The Company's business operations are conducted through its wholly
owned indirect subsidiary, Francesca's Collections, Inc.
(Francesca's Collections). Holdings operates under its trademark,
francesca's collections. The Company operates a national chain of
retail boutiques designed and merchandised. Its francesca's
collections is a specialty retailer in the United States.
Holdings's retail locations are designed and merchandised as
owned, upscale boutiques. Holdings offer a range of fashion
apparel, jewelry, accessories and gifts. The Company's merchandise
is also available through its e-commerce Website,
www.francescascollections.com. As of April 2, 2011, Holdings had a
boutique base in 236 locations in 38 states. In February 2010,
CCMP Capital Advisors, LLC (CCMP) acquired an 84% interest in the
Company from the Founders and Bear Growth Capital Partners, LP
(BGCP).
GLG LIFE: Court Grants Motion to Dismiss Securities Class Action
----------------------------------------------------------------
GLG Life Tech Corporation on Feb. 3 disclosed that the class
action lawsuit filed against GLG for alleged failures to disclose
certain information has been dismissed.
Earlier on Feb. 4, the Company secured a dismissal with prejudice
of a securities class action filed against it and two of its
officers (CEO Dr. Luke Zhang and President and CFO Brian Meadows)
in the United States District Court for the Southern District of
New York. In granting the Company's motion to dismiss the class
action, the Court held that the Company had previously disclosed
"substantial information [to] the market that suggested precisely
that which plaintiffs alleged defendants failed to disclose" under
the United States securities laws. The Court further found that
"plaintiffs have failed to allege that defendants had a plausible
motive to defraud investors," and noted the fact that Dr. Zhang
"purchased a significant number of shares during the putative
class period." Significantly, the Court also ruled that the
Company "persuasively argue[d]" that it had also "disclosed all
that was required" under Canadian regulations.
About GLG Life Tech Corporation
GLG Life Tech Corporation -- http://www.glglifetech.com-- is a
global leader in the supply of high purity stevia extracts, an
all-natural zero-calorie sweetener used in food and beverages.
The Company's vertically integrated operations cover each step in
the stevia supply chain including non-GMO stevia seed breeding,
natural propagation, stevia leaf growth and harvest, proprietary
extraction and refining, marketing and distribution of finished
product.
HI-GENE'S JANITORIAL: Fails to Pay Overtime Wages, Suit Claims
--------------------------------------------------------------
Rene Monroy, On Behalf of Himself and All Others Similarly
Situated v. Hi-Gene's Janitorial Services, Inc. [Registered Agent:
Sharon Gallamore, 1836 Linn, North Kansas City, MO 64116, Case No.
4:14-cv-00036-ODS (W.D. Mo., January 13, 2014) is brought for
unpaid overtime wages, and related penalties and damages.
Mr. Monroy asserts that the Defendant's practices and policies
have resulted in its willfully failing to pay overtime wages due
and owing to the Plaintiff and all other similarly situated
employees in violation of the Fair Labor Standards Act.
Hi-Gene's is a Missouri corporation with its principle place of
business in North Kansas City, Missouri. The Company provides
janitorial services at commercial, medical, industrial and
institutional facilities in the Kansas City and St. Joseph areas.
The Plaintiff is represented by:
Michael F. Brady, Esq.
Mark A. Kistler, Esq.
BRADY & ASSOCIATES
10901 Lowell Ave., Suite 280
Overland Park, KS 66210
Telephone: (913) 696-0925
Facsimile: (913) 696-0468
E-mail: brady@mbradylaw.com
mkistler@mbradylaw.com
INTL FCSTONE: Faces "Woebel" Securities Class Suit in New York
--------------------------------------------------------------
Paul Woebel, Individually and on Behalf of All Other Persons
Similarly Situated v. INTL FCStone Inc., f/k/a International
Assets Holding Corporation, Sean M. O'connor, and William J.
Dunaway, Case No. 1:14-cv-00232-AKH (S.D.N.Y., January 13, 2014)
is a federal securities class action brought on behalf of a class
consisting of all persons, other than the Defendants, who
purchased INTL FCStone securities between February 17, 2010, and
December 16, 2013, inclusive.
The lawsuit seeks to recover damages caused by Defendants' alleged
violations of the federal securities laws and to pursue remedies
under the Securities Exchange Act of 1934 against the Company and
certain of its top officials.
New York-based INTL FCStone is a financial services holding
company. The Company and its subsidiaries offer a broad spectrum
of financial services to its customers throughout the world,
including execution and advisory services in commodities,
currencies, and international securities. Sean M. O'Connor has
served as the Company's Chief Executive Officer. William J.
Dunaway has served as the Company's Chief Financial Officer.
The Plaintiff is represented by:
Jeremy Alan Lieberman, Esq.
Lesley F. Portnoy, Esq.
POMERANTZ LLP
600 Third Avenue, 20th Floor
New York, NY 10016
Telephone: (212) 661-1100
Facsimile: (212) 661-8665
E-mail: jalieberman@pomlaw.com
lfportnoy@pomlaw.com
- and -
Patrick V. Dahlstrom, Esq.
POMERANTZ LLP
Ten South LaSalle Street, Suite 3505
Chicago, IL 60603
Telephone: (312)377-1181
Facsimile: (312)377-1184
E-mail: pdahlstrom@pomlaw.com
The Defendants are represented by:
Daniel Dov Edelman, Esq.
Edwin Mark Baum, Esq.
CROWELL & MORING LLP (NYC)
590 Madison Avenue
New York, NY 10022
Telephone: (212) 223-4000
Facsimile: (212) 895-4201
E-mail: dedelman@crowell.com
ebaum@crowell.com
- and -
Mark Andrew Klapow, Esq.
CROWELL & MORING, LLP
1001 Pennsylvania Avenue, NW
Washington, DC 20004
Telephone: (202) 624-2975
Facsimile: (202) 628-5116
E-mail: mklapow@crowell.com
KB KOOKMIN: May Need to Pay KRW86 Bil. to Settle Class Action
-------------------------------------------------------------
Yonhap reports that the three credit card firms hit by recent
massive data leaks may have to pay up to 170 billion won (US$158
million) in compensation to their clients to settle class action
lawsuits, data showed on Feb. 3.
Last month, the Financial Supervisory Service (FSS), Korea's
financial watchdog, revealed that some 20 million clients'
personal data, including bank account numbers, addresses and
credit ratings, have been leaked from the three card issuers -- KB
Kookmin Card Co., NH Nonghyup Card Co. and Lotte Card Co.
The largest-ever data breach has already prodded angry clients to
sign up to file a class action lawsuit against the card firms for
the data theft.
In a regulatory filing, KB Kookmin Card said that it may fork over
up to 86 billion won in compensation to its clients, citing a
similar court case.
In February last year, SK Communications Co., the operator of
local search engine Nate, was ordered by a court to pay 200,000
won each in compensation to 2,882 users for failing to protect
customer data.
KB Kookmin Card estimated that about 1 percent of its clients
whose data were stolen may participate in the class action suit
and that it would pay the same amount of compensation as SK
Communications.
Based on KB Kookmin Card's calculation, Lotte and Nonghyup may
each pay 35 billion won and 50 billion won to their clients who
join the suit.
The credit card firms are already suffering losses as millions of
their clients have canceled their plastic cards or asked for new
ones, which will cost them up to 40 billion won.
The country's financial regulator is also set to impose a three-
month suspension on them as punishment for the data theft, banning
them from signing on new customers.
Industry sources said some insurers such as Prudential Life
Insurance Co. were also found to have been lax in data security.
The insurer allegedly allowed external auditors access to their
clients' information without their consent in January 2012. Three
senior officials were reprimanded and the firm was fined 6 million
won, the sources said.
LINN ENERGY: Agreed to Settle Berry Stockholder Class Action
------------------------------------------------------------
Linn Energy, LLC ("LINN"), LinnCo, LLC ("LinnCo") and Berry
Petroleum Company on December 6, 2013, reached an agreement in
principle to settle a purported stockholder class action on behalf
of Berry stockholders filed in the Court of Chancery of the State
of Delaware on April 12, 2013 (the "Action") on the terms and
conditions set forth in a memorandum of understanding, according
to Linn Energy, LLC's Form 8-K dated December 6, 2013, filed with
the U.S. Securities and Exchange Commission on December 9, 2013.
The Action, captioned David Hall v. Berry Petroleum Company, et
al., C.A. No. 8476-VCG, names as defendants Berry, the members of
its board of directors, Bacchus HoldCo, Inc., a direct wholly
owned subsidiary of the Company ("HoldCo"), Bacchus Merger Sub,
Inc., a direct wholly owned subsidiary of HoldCo ("Bacchus Merger
Sub"), LinnCo, LINN and Linn Acquisition Company, LLC, a direct
wholly owned subsidiary of LinnCo ("LinnCo Merger Sub"). The
Action alleges that the individual defendants breached their
fiduciary duties in connection with the transactions contemplated
by the Agreement and Plan of Merger, dated as of February 20, 2013
and amended as of November 3, 2013 and November 13, 2013 (as
amended, the "Merger Agreement"), by and among Berry, HoldCo,
Bacchus Merger Sub, LinnCo, LinnCo Merger Sub and LINN, by
engaging in an inadequate sales process that resulted in an unfair
price for Berry and by failing to disclose all material
information regarding the transactions, and that the entity
defendants aided and abetted those alleged breaches of fiduciary
duty.
The memorandum of understanding contemplates that the parties will
enter into a stipulation of settlement (the "Stipulation"). The
memorandum of understanding further provides that, among other
things, (1) the parties will submit the Stipulation to the
Delaware court for review and approval; (2) the Stipulation will
provide for dismissal with prejudice of the Action; (3) all
proceedings in the Action, except for those related to the
settlement, shall be stayed and the plaintiff agrees to stay and
not to initiate any other proceedings other than those incident to
the settlement itself; (4) the Stipulation will include a general
release of defendants of all claims relating to the merger and
related transactions and (5) the proposed settlement is
conditioned on, among other things, class certification and final
approval by the Delaware court after notice to the Company's
stockholders.
In connection with the settlement of the Action, Berry, LINN and
LinnCo have agreed to make the following amended and supplemental
disclosures (the "Amended and Supplemental Disclosures") to the
joint proxy statement/prospectus filed with the Securities and
Exchange Commission on November 14, 2013 (the "Joint Proxy
Statement/Prospectus"). The Amended and Supplemental Disclosures
should be read in conjunction with the Joint Proxy
Statement/Prospectus, which should be read in its entirety.
Defined terms used but not defined herein have the meanings set
forth in the Joint Proxy Statement/Prospectus.
The settlement will not affect the timing of the special meeting
of the Berry stockholders, the annual meeting of LINN unitholders
or the annual meeting of LinnCo shareholders, which were each
scheduled to be held December 16, 2013, or the amount of the
consideration to be paid to Berry stockholders in connection with
the proposed transaction. The settlement is not, and should not be
construed as, an admission of wrongdoing or liability by any
defendant. The defendants continue to believe that the Action is
without merit and vigorously deny the allegations that Berry's
directors breached their fiduciary duties. Likewise, defendants do
not believe that any disclosures regarding the Mergers are
required under applicable laws other than that which has already
been provided in the Joint Proxy Statement/Prospectus.
Furthermore, nothing in this Current Report on Form 8-K (this
"Report") or any settlement shall be deemed an admission of the
legal necessity or materiality of any of the disclosures set forth
in this Report. However, to avoid the risk of the putative
stockholder class action delaying or adversely affecting the
Mergers, to minimize the substantial expense, burden, distraction
and inconvenience of continued litigation and to fully and finally
resolve the claims, Berry, LINN and LinnCo have agreed to make
these amended and supplemental disclosures to the Joint Proxy
Statement/Prospectus.
Linn Energy, LLC (LINN Energy) is an independent oil and natural
gas company. The Company is engaged in acquiring, developing and
maximizing cash flow from a growing portfolio of long-life oil and
natural gas assets. The Company's properties are located in the
United States , in the Mid-Continent, the Hugoton Basin, the Green
River Basin, the Permian Basin, Michigan, Illinois, the
Williston/Powder River Basin, California and east Texas. Proved
reserves at December 31, 2012, were 4,796 billions of cubic feet
equivalent, of which approximately 24% were oil, 54% were natural
gas and 22% were natural gas liquids (NGL). In December 2013, Linn
Energy LLC and Linn Co, LLC (Linn Co) announced the completion of
the merger between LinnCo and Berry Petroleum Company (Berry),
where LinnCo had acquired all of Berry's interest.
MEDICENTRES CANADA: Hundreds of Albertans Sign Up for Class Action
------------------------------------------------------------------
Amanda Stephenson, writing for Calgary Herald, reports that
hundreds of Albertans have already registered for a class-action
lawsuit filed over a missing laptop containing personal and health
information, says the Calgary lawyer involved in the case.
Well-known class-action lawyer Clint Docken of Docken & Co. said
he expects those numbers to rise in the days ahead. A statement
of claim was filed against Medicentres Canada in an Edmonton
courtroom.
In late September, an unencrypted laptop of an IT consultant for
Medicentres Canada went missing. The laptop held a database of
personal information for 620,000 patients who visited Medicentre
clinics in Edmonton and Calgary between May 2011 and Sept. 2013.
Edmonton resident Charmaine L'Hirondelle is the representative
plaintiff of the statement of claim, filed on Jan. 28, which
alleges a breach of information could result in identity theft,
land titles and mortgage fraud, and break and entry.
Docken & Co is working together with Edmonton law firm James H.
Brown & Associates on the lawsuit. The statement of claim says
the plaintiff and other class members are seeking $11 million for
credit damage, mental distress, increased risk of future identity
theft, and time and costs associated with preventing identity
theft.
Docken said paying for future credit monitoring alone could cost
affected individuals $300 per year.
None of the allegations in the statement of claim have been proved
in court, and the claim has yet to be certified.
Medicentres has not filed a statement of defense.
MIDLAND CREDIT: Accused of Violating Fair Debt Collection Act
-------------------------------------------------------------
Brent Baltzer, on behalf of himself and all others similarly
situated v. Midland Credit Management, Inc., d/b/a MCM, a foreign
corporation; Midland Funding, LLC, a foreign limited liability
company; Encore Capital Group, Inc., a foreign profit corporation,
Case No. 1:14-cv-20140-JAL (S.D. Fla., January 13, 2014) alleges
that the Defendants violate the Fair Debt Collection Practices
Act.
The Plaintiff is represented by:
Aaron M. Swift, Esq.
Ian Richard Leavengood, Esq.
LEAVENGOOD, NASH, DAUVAL & BOYLE, PA
3900 First Street North, Suite 100
St. Petersburg, FL 33703
Telephone: (727) 327-3328
Facsimile: (727) 327-3305
E-mail: aswift@leavenlaw.com
ileavengood@leavenlaw.com
MIDLAND FUNDING: Has No Right to Charge 5% Interest, Suit Says
--------------------------------------------------------------
Toni Burch, individually and on behalf of all others similarly
situated v. Midland Funding, LLC, a Delaware limited liability
company, and Midland Credit Management, Inc., a Kansas
corporation, Case No. (N.D. Ill., January 13, 2014) is brought on
behalf of all persons similarly situated in the state of Illinois
from whom the Defendants attempted to collect a delinquent
consumer debt, via a collection letter similar to the letter sent
to the Plaintiffs.
The Defendants claimed to be entitled to charge 5% interest rate
on the debt at issue, when they had neither a contractual, nor a
statutory, right to do so, Ms. Burch contends.
Midland Funding, LLC is a Delaware limited liability company.
Midland Credit Management, Inc. is a Kansas corporation. The
Defendants operate nationwide debt collection businesses. They
are each licensed as debt collection agencies in the state of
Illinois, and they attempt to collect debts from consumers in
Illinois.
The Plaintiff is represented by:
David J. Philipps, Esq.
Mary E. Philipps, Esq.
Angie K. Robertson, Esq.
PHILIPPS & PHILIPPS, LTD.
9760 S. Roberts Road, Suite One
Palos Hills, IL 60465
Telephone: (708) 974-2900
Facsimile: (708) 974-2907
E-mail: davephilipps@aol.com
mephilipps@aol.com
angiekrobertson@aol.com
The Defendants are represented by:
David M. Schultz, Esq.
Jennifer W. Weller, Esq.
HINSHAW & CULBERTSON
222 North LaSalle Street, Suite 300
Chicago, IL 60601-1081
Telephone: (312) 704-3527
Facsimile: (312) 704-3001
E-mail: dschultz@hinshawlaw.com
jweller@hinshawlaw.com
MORGAN STANLEY: Agrees to Pay $1.25BB to Resolve Securities Claims
------------------------------------------------------------------
Michael Corkery, Jessica Silver-Greenberg and Peter Eavis at The
New York Times report that Morgan Stanley has agreed to pay $1.25
billion to the Federal Housing Finance Agency to resolve claims
that it sold shoddy mortgage securities to Fannie Mae and Freddie
Mac.
In a securities filing late on Feb. 4, Morgan Stanley said that it
had reached an agreement "in principle" with the agency, which is
the federal conservator for the mortgage finance giants Fannie and
Freddie.
The settlement is the latest agreement between a Wall Street firm
and the F.H.F.A., which in 2011 sued 18 financial institutions
seeking relief for some of the big losses suffered by the
taxpayer-supported entities.
According to the agency's lawsuit, Morgan Stanley sold $10.58
billion in mortgage-backed securities to Fannie and Freddie during
the credit boom, while presenting "a false picture" of the
riskiness of the loans.
The housing finance agency said the underwriting of the mortgage
loans did not meet the standards detailed to Fannie and Freddie.
The lawsuit involved mortgage-backed securities issued from Sept.
12, 2005, to Sept. 27, 2007.
Many of the loans involved were originated by subprime lenders,
like New Century and IndyMac, bundled into bonds and sold to
Fannie and Freddie. One group of loans had default and
delinquency rates as high as 70 percent, according to the lawsuit.
The Morgan Stanley settlement, if it becomes final, would be the
third-largest monetary payment by a Wall Street firm to settle an
F.H.F.A. lawsuit.
The largest settlement thus far -- for $4 billion -- was paid by
JPMorgan Chase. Deutsche Bank agreed to pay $1.92 billion in the
second-largest settlement.
The F.H.F.A. still has pending mortgage securities cases against
approximately a dozen other financial institutions.
The payouts won by the housing finance agency are proportionately
larger than the penalties that other entities have obtained after
suing the banks over soured mortgages. Morgan Stanley's $1.25
billion payment is equivalent to more than 10 percent of the
original value of the bonds that the Wall Street firm sold to
Fannie Mae and Freddie Mac. The housing finance agency has
collected a similar payout rate on its other settlements.
NEIMAN MARCUS: Faces "Frank" Suit in New York Over Data Breach
--------------------------------------------------------------
Melissa Frank, individually and on behalf of all others similarly
situated v. The Neiman Marcus Group, LLC, a Delaware limited
liability company; and Does 1-50, Case No. 1:14-cv-00233
(E.D.N.Y., January 13, 2014) alleges that the Defendants failed to
implement and maintain reasonable security procedures and
practices appropriate to the nature and scope of the information
compromised in the Company's recent data breach.
The Neiman Marcus Group, LLC is a Delaware limited liability
company headquartered in Dallas, Texas. Neiman Marcus is an
American luxury specialty department store.
The Plaintiff is represented by:
Wendy R. Stein, Esq.
LAW OFFICE OF WENDY R. STEIN
5 Penn Plaza, 23rd Floor
New York, NY 10001
Telephone: (212) 244-4404
Facsimile: (212) 849-6901
E-mail: wendy@wsteiniplaw.com
- and -
Tina Wolfson, Esq.
Robert Ahdoot, Esq.
Theodore W. Maya, Esq.
Bradley K. King, Esq.
AHDOOT & WOLFSON, PC
1016 Palm Avenue
West Hollywood, CA 90069
Telephone: (310)474-9111
Facsimile: (310)474-8585
E-mail: twolfson@ahdootwolfson.com
rahdoot@ahdootwolfson.com
tmaya@ahdootwolfson.com
bking@ahdootwolfson.com
NTS REALTY: Class Action Settlement Gets Preliminary Approval
-------------------------------------------------------------
NTS Realty Holdings Limited Partnership, together with the other
defendants in a class action lawsuit, entered into a Stipulation
and Agreement of Compromise, Settlement and Release on February 4,
2014 with the plaintiffs in the class action captioned, Stephen J.
Dannis, et al. v. J.D. Nichols, et al., Case No. 13-CI-00452,
pending in Jefferson County Circuit Court of the Commonwealth of
Kentucky against the Company, NTS Realty Capital, Inc., the
Company's managing general partner, each of the members of the
board of directors of Realty Capital, NTS Realty Partners, LLC and
NTS Merger Parent, LLC. The Company disclosed that on February 5,
2014, the Court entered an order granting its preliminary approval
of the Settlement.
Subject to satisfaction of the conditions set forth in the
Settlement, the Settlement provides for the full and complete
compromise, settlement, release and dismissal of the Kentucky
Action as well as the class action lawsuit pending in the Delaware
Court of Chancery under the consolidated case caption of In re NTS
Realty Holdings Limited Partnership Unitholders Litigation,
Consol. C.A. No. 8302-VCP.
Under the Settlement, it is expected that: (1) NTS Merger Sub, LLC
will merge with and into the Company pursuant to the terms of a
merger agreement to be entered into among the Company, Parent,
Merger Sub and Realty Capital; and (2) as consideration for the
settlement and release of the claims asserted in the Actions, at
the closing of the merger, all of our limited partnership units,
other than those Units owned by our founder and the Chairman of
Realty Capital, J.D. Nichols, the President and Chief Executive
Officer of Realty Capital, Brian F. Lavin, and certain of their
affiliates, will be canceled and converted automatically into the
right to receive a cash payment equal to (i) $7.50 per Unit, plus
(ii) a pro rata share of the settlement payment of $7,401,487 less
fees, expenses and an incentive award payable to plaintiffs'
counsel, if any, as awarded by the Court. The cash payment will
not be due or owing under the Settlement, however, until, among
other things, the Court has finally certified the members of the
class action; the Court, after holding a hearing, has entered its
order and final judgment approving the material terms of the
Settlement and such judgment shall have become final and non-
appealable; the Court has approved various releases among the
plaintiffs, class members and defendants; orders dismissing the
Kentucky Action and the Delaware Action with prejudice have become
final and are no longer subject to appeal; and the merger has
become effective.
The Settlement is conditioned upon the fulfillment of certain
conditions including, among others, the following:
-- Plaintiffs' determination, following completion of
confirmatory discovery (which discovery was completed on January
30, 2014), that the Settlement is fair, reasonable and adequate
(plaintiffs are to make this determination and provide notice to
all parties by February 10, 2014);
-- Plaintiffs' approval of the form of the final information
statement to be issued by the Company and certain other defendants
relating to the merger;
-- the approval of the merger by the holders of a majority of the
Units of the Company;
-- the Purchasers agreeing and committing to vote in favor of the
approval of the merger;
-- dismissal with prejudice of the Kentucky Action and Delaware
Action;
-- the entry of a final judgment in the Kentucky Action approving
the proposed Settlement and providing the dismissal with prejudice
of the Kentucky Action and approving the grant of the Releases;
-- the inclusion in the final judgment of the Actions a provision
enjoining all members of the class from asserting any of the
settled claims; and
-- such final judgment and dismissal of the Actions being finally
affirmed on appeal or such final judgment and dismissal not being
subject to appeal by lapse of time or otherwise.
The Company expects to obtain approval of the merger by the
holders of a majority of the Units of the Company by written
consent of the Purchasers in lieu of a special meeting. Pursuant
to the Settlement, the Purchasers, who as of December 31, 2013,
owned approximately 62% of the outstanding Units and approximately
59.3% of the total voting power of Units, have agreed to vote in
favor of the Merger Agreement. No other votes will be required or
necessary under applicable law, the Merger Agreement or otherwise
to approve the Merger Agreement, and none are being solicited.
The Company expects that the merger and the transactions
contemplated thereby and by the Settlement will be completed in
the first half of 2014. However, there can be no assurance that
the conditions to the merger or the Settlement will be satisfied
or that the merger or Settlement will be consummated on the terms
described herein or at all. Upon consummation of the merger, the
Company's Units will be delisted from the NYSE MKT, the
registration of our Units under Section 12 of the Securities
Exchange Act of 1934 will be terminated, and the Company will no
longer be a reporting company with the SEC.
About NTS Realty Holdings Limited Partnership
The Company currently owns, wholly, as a tenant in common with
unaffiliated co-owners, or through joint venture investments with
affiliated and unaffiliated third parties, twenty-four properties
comprised of fifteen multifamily properties, seven office
buildings and business centers and two retail properties. The
properties are located in and around Louisville and Lexington,
Kentucky, Nashville and Memphis, Tennessee, Richmond, Virginia,
Fort Lauderdale and Orlando, Florida, Indianapolis, Indiana and
Atlanta, Georgia. The Company's limited partnership units are
listed on the NYSE MKT platform under the trading symbol of "NLP."
SELMAN ASSOCIATES: Sued by Mud Loggers Over Unpaid Overtime
-----------------------------------------------------------
Andrew Schroeder, Individually, and On Behalf of All Others
Similarly Situated v. Selman & Associates, Ltd., Juanita C.
Selman, and Tom H. Selman, Case No. 3:14-cv-00042-RDM (M.D. Pa.,
January 13, 2014) is brought to recover monetary damages,
liquidated damages, interest and costs as a result of the
Defendants' alleged willful violation of the Fair Labor Standards
Act, the Pennsylvania Minimum Wage Act and the Pennsylvania Wage
Payment and Collection Law.
The proposed class is composed of all former and current Mud
Loggers, who were/are employed and misclassified as exempt from
overtime by the Defendants during the applicable statutory period.
Selman & Associates, Ltd., is a Texas business corporation
headquartered in Midland, Texas. Juanita C. Selman and Tom H.
Selman are the sole owners of the Company.
The Plaintiff is represented by:
Jason T. Brown, Esq.
JTB LAW GROUP, LLC
155 2nd Street, Suite 4
Jersey City, NJ 07302
Telephone: (201) 630-0000
Facsimile: (855) 582-5297
E-mail: jtb@jtblawgroup.com
SINGLE TOUCH: Seeks Dismissal of "Ibey" Class Action
----------------------------------------------------
Single Touch Systems, Inc., on September 19, 2013, filed a motion
to dismiss a class action pending in the United States District
Court, Southern District of California and alleging violations of
the Telephone Consumer Protection Act, according to the Company's
Form 10-K filed on December 9, 2013, with the U.S. Securities and
Exchange Commission for the fiscal year ended September 30, 2013.
The Company states: "On July 29, 2012, we were served a first
amended complaint for Elizabeth Ibey v. Wal-Mart Stores Inc. and
Single Touch Interactive Inc. The complaint is a class action
pending in the United States District Court, Southern District of
California and alleges violations of the Telephone Consumer
Protection Act. The Plaintiff seeks damages and injunctive relief.
We filed a motion to dismiss the case on September 19, 2013 and a
hearing on that motion to dismiss is scheduled for December 13,
2013."
Single Touch Systems, Inc. is a mobile media solutions provider
serving retailers, advertisers and brands. The Company offers its
patented technologies through a modular, adaptable platform and a
multi-channel messaging gateway to its customers, enabling them to
reach consumers on all types of connected devices. Its solution is
designed to drive return on investment for high-volume clients
and/or customized branded advertisers. Its platform and tools are
designed to enable brands or anyone with substantial reach to
utilize the mobile device as a new means to communicate.
Communication might be in the form of a reminder message in voice
or Short Message Service (SMS), an abbreviated dial code or a
coupon, promotion, or an advertisement. On July 26, 2013, the
Company dismissed Weaver, Martin & Samyn, LLC (Weaver).
SOUTHWEST CREDIT: Fails to Pay All Hours Worked, Collector Claims
-----------------------------------------------------------------
Lori Stephenson, individually and on behalf of all others
similarly situated v. Southwest Credit Systems, L.P., Trigon
Investors, LLC, Jeff Hurt, and Joe Longbotham, Case No. 4:14-cv-
00019-RAS-DDB (E.D. Tex., January 13, 2014) accuses the Defendants
of violating the Fair Labor Standards Act by failing to pay their
employees for all hours worked within a workweek in excess of 40
hours.
The Plaintiff was employed by the Defendants as a Collector and
was responsible for contacting debtors to collect on accounts
assigned to her.
Southwest Credit Systems, L.P. is a Texas limited partnership.
Trigon Investors, LLC, a Texas limited liability company, is the
general partner of Southwest Credit Systems, L.P.
Southwest Credit Systems, L.P. is a national provider of accounts
receivable management services to companies in the communications,
education, utility, and financial services industries. The
Individual Defendants are the owners and operators of the
Corporate Defendants during the actionable period.
The Plaintiff is represented by:
Barbara Thompson Hale, Esq.
Jeffrey Dwayne Smith, Esq.
BLANSET HOOPER & HALE, LLP
14285 Midway Rd., Suite 400
Addison, TX 75019
Telephone: (214) 764-7973
Facsimile: (214) 764-7981
E-mail: bhale@metrocrestlaw.com
jsmith@metrocrestlaw.com
SPOKEO INC: Appeals Court Allows Consumer's FCRA Suit to Proceed
----------------------------------------------------------------
KTVU.com reports that a federal appeals court ruled in
San Francisco on Feb. 4 that an unemployed Virginia man can go
ahead with a lawsuit against a people-search website that he
claims published inaccurate information about him.
The 9th U.S. Circuit Court of Appeals said that Thomas Robins'
allegations that Spokeo Inc. violated the federal Fair Credit
Reporting Act were sufficient to allow a trial on his 2010
lawsuit.
The Spokeo.com site, which describes itself as a "people search
engine," was founded in Mountain View in 2006 by four Stanford
University graduates and is now headquartered in Pasadena.
It aggregates information from sources such as telephone
directories, social networking websites, marketing surveys and
real estate listings to create profiles of people.
People can be searched for by name, e-mail address, user name,
phone number or residential address. The site does not obtain the
subjects' permission to display the listings, but does provide an
opt-out process.
Mr. Robins, of Vienna, Va., alleged in a lawsuit filed in federal
court in Los Angeles in 2010 that his profile gave his correct
address and names of siblings, but erroneously said he was
married, in his 50s, employed in a professional or technical field
and in a wealth level of the "top 10 percent." He said the
alleged inaccuracies damaged his job-hunting prospects and caused
him anxiety and stress.
The lawsuit claimed the profile amounted to a consumer report and
violated a series of requirements under the Fair Credit Reporting
Act, including a mandate to use reasonable procedures to ensure
that information about a person is accurate.
Unless Spokeo successfully appeals the ruling, the case now goes
back to U.S. District Court in Los Angeles for a possible trial.
Mr. Robins' lawyer, Steven Woodrow, said, "This is a tremendous
victory for consumers. This allows consumers their day in court."
Mr. Woodrow said Mr. Robins will seek to have the lawsuit
certified as a class action on behalf of an estimated tens of
thousands -- and possibly millions -- of people whose profiles
have been displayed online on the Spokeo site since 2006.
In addition, the appeals court's reasoning could apply to similar
lawsuits filed against other websites, Mr. Woodrow said.
Spokeo spokeswoman Vanessa Waite said, "Because this is pending
litigation, we aren't able to comment."
The company could appeal to an expanded panel of the 9th Circuit
or to the U.S. Supreme Court.
In the Feb. 4 ruling, a three-judge panel unanimously overturned a
decision in which U.S. District Judge Otis Wright of Los Angeles
dismissed the lawsuit on the ground that Robins lacked standing,
or legal authority, to sue under the law because he hadn't
adequately alleged any actual harm caused by Spokeo.
The appeals court said the fair credit law is written in a way
that provides that a violation of its procedures is in itself
harmful.
"The statutory cause of action does not require a showing of
actual harm when a plaintiff sues for willful violations . . . A
plaintiff can suffer a violation of the statutory right without
suffering actual damages," said Circuit Judge Diarmuid
O'Scannlain.
The panel noted that another federal appeals court, the
Cincinnati-based 6th Circuit, reached a similar conclusion in 2009
in a lawsuit filed by a consumer against a check-verification
service.
Spokeo maintains in a statement on its website that it is not a
credit reporting agency and says it "works hard to ensure that all
of the data on our site is within established guidelines."
STERLING BANCORP: Inked Memorandum of Understanding in Class Suit
-----------------------------------------------------------------
Following certain coordinated discovery and negotiations among
counsel, Sterling Bancorp on September 12, 2013, entered into a
memorandum of understanding regarding a settlement in principle of
the litigation on an amended class action complaint alleging that
Legacy Sterling's board of directors breached its fiduciary duties
and by failing to disclose all material information to
shareholders, according to the Company's Form 10-K filed on
December 9, 2013, with the U.S. Securities and Exchange Commission
for the fiscal year ended September 30, 2013.
Between April 9, 2013 and June 5, 2013, eight actions were filed
on behalf of a putative class of Legacy Sterling shareholders
against Legacy Sterling, its current directors, and Provident New
York Bancorp in connection with the Merger. The first seven of the
actions were filed in the Supreme Court of the State of New York,
New York County; the eighth action was filed in the United States
District Court for the Southern District of New York. On May 17,
2013, the seven state court actions were consolidated under the
caption In re Sterling Shareholders Litigation, Index No.
651263/2013 (Sup. Ct., N.Y. Cnty.).
On June 21, 2013, the lead plaintiffs in the consolidated state
court action filed an amended class action complaint alleging that
Legacy Sterling's board of directors breached its fiduciary duties
by agreeing to the proposed merger transaction and by failing to
disclose all material information to shareholders. The
consolidated and amended complaint also alleges that Provident New
York Bancorp has aided and abetted those alleged fiduciary
breaches.
The consolidated state court action seeks, among other things, an
order enjoining the defendants from proceeding with or
consummating the merger, as well as other equitable relief and/or
money damages in the event that the transaction is consummated.
The federal action, captioned Miller v. Sterling Bancorp, et al.,
No. 13 CV 3845 (S.D.N.Y.), alleges the same breach of fiduciary
duty and aiding and abetting claims against defendants, and also
alleges defendants' preliminary proxy statement was inaccurate or
incomplete in violation of Sections 14(a) and 20(a) of the
Securities Exchange Act of 1934. The plaintiff in the federal
action agreed to coordinate his case with the earlier-filed
consolidated state court action.
On September 12, 2013, following certain coordinated discovery and
negotiations among counsel, the parties to these actions entered
into a memorandum of understanding regarding a settlement in
principle of this litigation. Although Legacy Sterling and
Provident New York Bancorp believed that the disclosures
concerning the proposed merger were accurate and complete in all
material respects, to avoid the risk that the lawsuits could delay
or otherwise adversely affect the consummation of the proposed
merger and to minimize the expense and burden of defending such
actions, the defendants agreed to make certain supplemental
disclosures, which were set forth in a Form 8-K Current Report
filed by Legacy Sterling with the U.S. Securities and Exchange
Commission on September 12, 2013. The proposed settlement is
subject to, among other things, certain confirmatory discovery and
approval of the New York State Supreme Court. Under the terms of
the proposed settlement, following final approval by the court,
each of the state and federal actions will be dismissed with
prejudice.
Sterling Bancorp is a bank holding company and a financial holding
company. The Company and its subsidiaries provide banking and
related financial services and products to customers primarily in
New York, New Jersey and Connecticut (the New York metropolitan
area). The Company has operations in the New York metropolitan
area and conducts business throughout the United States. The
Company's principal subsidiary is Sterling National Bank (the
Bank). Sterling Bancorp's subsidiaries also include Sterling
Banking Corporation and Sterling Bancorp Trust I (the Trust). The
Bank maintains 12 offices in New York: nine offices in New York
City (six branches and an international banking facility in
Manhattan and three branches in Queens); two branches in Nassau
County (one in Great Neck and the other in Woodbury, New York) and
one branch in Yonkers, New York. The Bank provides loans to small
and medium-sized businesses. In August 2012, the Bank acquired the
business of Universal Mortgage, Inc.
TARGET CORP: Faces "Putnam" Suit Over Data Security Breach
----------------------------------------------------------
Putnam Bank, Individually and on behalf of a class of all
similarly situated financial institutions v. Target Corporation,
Case No. 0:14-cv-00121-PAM-JJK (D. Minn., January 13, 2014)
alleges that on November 23, 2013, in one of the largest data
security breaches ever to have occurred in the United States,
approximately 110 million credit cards and debit cards were
compromised because of Target's acts and omissions.
The Plaintiff contends that Target's failure to adequately
safeguard customer confidential information and related data and
Target's failure to maintain adequate encryption, intrusion
detection, and prevention procedures in its computer systems
caused the losses in the breach.
Target Corporation is a Minnesota corporation headquartered in
Minneapolis. Target is the second largest discount retailer in
the United States and has more than 1,795 stores nationwide.
The Plaintiff is represented by:
Brian C. Gudmundson, Esq.
J. Gordon Rudd, Jr., Esq.
ZIMMERMAN REED, PLLP
1100 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
E-mail: brian.gudmundson@zimmreed.com
gordon.rudd@zimmreed.com
- and -
Joseph P. Guglielmo, Esq.
Joseph D. Cohen, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
The Chrysler Building
405 Lexington Avenue, 40th Floor
New York, NY 10174
Telephone: (212) 223-6444
Facsimile: (212) 223-6334
E-mail: jguglielmo@scott-scott.com
jcohen@scott-scott.com
- and -
David R. Scott, Esq.
Stephen J. Teti, Esq.
SCOTT+SCOTT, ATTORNEYS AT LAW, LLP
156 South Main Street, P.O. Box 192
Colchester, CT 06415
Telephone: (860) 537-5537
Facsimile: (860) 537-4432
E-mail: david.scott@scott-scott.com
steti@scott-scott.com
The Defendant is represented by:
Michael A. Ponto, Esq.
Wendy J. Wildung, Esq.
FAEGRE BAKER DANIELS LLP
90 S 7th St., Suite 2200
Minneapolis, MN 55402-3901
Telephone: (612) 766-7000
Facsimile: (612) 766-1600
E-mail: michael.ponto@FaegreBD.com
wendy.wildung@faegrebd.com
TARGET CORP: Provost Umphrey Law Firm Files Class Action
--------------------------------------------------------
Provost Umphrey Law Firm, L.L.P. on Feb. 3 disclosed that it filed
a class action lawsuit on January 29, 2014 in the United States
District Court in Minnesota on behalf of CommunityBank of Texas,
N.A. and FNBT.com, Inc. and other similarly situated banks against
Target Corporation. The lawsuit is a response to the Target
security breach that occurred between November 27, 2013 and
December 15, 2013.
During the security breach, hackers obtained the credit and debit
card information of approximately 40 million Target customers, and
the personal information of approximately 70 million Target
customers. Due to the breach, financial institutions suffered
losses including: the expense of creating, issuing and mailing new
payment cards to their customers, customer reimbursements for
fraudulent charges, administrative expenses and overhead charges
associated with monitoring and preventing fraud, and lost
customers. While Target is providing one year of free credit
monitoring services for those impacted, financial institutions
have found themselves responsible for the majority of the costs
associated with the security breach.
Walter Umphrey and Michael A. Havard of Provost Umphrey Law Firm
are representing the plaintiffs in the case. "We feel that
CommunityBank is well positioned to represent a nationwide class
of banks, credit unions, and other financial institutions. It is
too early to determine just how much money banks have lost, but
early indications are that losses could run in the hundreds of
millions of dollars," said Mr. Havard.
According to the filed lawsuit, the breach was the direct and
foreseeable result of Target's failure to implement and maintain
reasonable, industry-standard security measures to protect its
customers' credit card, debit card, and personal information.
Additionally, credit card companies require merchants to comply
with regulations aimed at safeguarding customer information. These
regulations generally prohibit the retention and storage of
cardholder information after a transaction has been authorized.
For over forty years, Provost Umphrey's mission has remained to
seek justice for those most in need -- those who have suffered a
personal injury or death due to the wrongful conduct of others.
Our attorneys fight for our clients nationwide with offices in
Beaumont and Houston Texas, Little Rock, Arkansas and Nashville,
Tennessee. Led by Walter Umphrey, Provost Umphrey continues to be
one of the most successful trial law firms in the nation by
remaining Hard-Working Lawyers for Hard-Working People.
TOG HOTELS: Class Seeks to Recover Unpaid Minimum and OT Wages
--------------------------------------------------------------
Melchor De Leon, Deviana Matias, Edgar Escobedo and Maria De Los
Angeles Franco, on behalf of themselves and all others similarly
situated v. TOG Hotels Downtown Dallas, LLC d/b/a/ TOG Hotels
Texas and Terry Tognazzini, Case No. 3:14-cv-00087-B (N.D. Tex.,
January 13, 2014) seeks to recover unpaid overtime wages and
minimum wages under the federal Fair Labor Standards Act.
Defendant TOG is a domestic limited liability company incorporated
under the laws of the state of Texas and is headquartered in Santa
Ana, California. TOG maintains and operates numerous hotels in
Texas, including Crowne Plaza Hotel, formerly known as the West
End Hotel. Terry Tognazzini is a resident of Dallas, Texas, and
an owner and managing member of TOG.
The Plaintiffs are represented by:
Allen R. Vaught, Esq.
BARON & BUDD, P.C.
3102 Oak Lawn Avenue, Suite 1100
Dallas, TX 75219
Telephone: (214) 521-3605
Facsimile: (214) 520-1181
E-mail: avaught@baronbudd.com
- and -
Paula Wyatt, Esq.
THE WYATT LAW FIRM
70 NE Loop 410, Suite 725
San Antonio, TX 78216
Telephone: (210) 340-5550
Facsimile: (210) 340-5581
E-mail: pwyatt@wyattlawfirm.com
UBS AG: Faces Class Actions Over Forex Manipulation
---------------------------------------------------
Alice Baghdjian and Katharina Bart, writing for Reuters, report
that UBS said on Feb. 4 several class action lawsuits relating to
a probe into possible manipulation of the foreign exchange market
had been filed against it and other banks.
The actions, filed since November, allege collusion by the
defendants, and assert claims under antitrust laws and for unjust
enrichment, the Swiss bank said in its quarterly report.
UBS said it had not yet filed a responsive pleading to the
actions.
In slides released alongside its quarterly report, the Swiss bank
said it expected elevated charges for litigation, regulatory and
similar matters through 2014.
UBS is one of a number of banks cooperating with a global
investigation in to possible rigging in the $5.3 trillion-a-day
foreign exchange market.
VIOLIN MEMORY: Facing Lawsuits in ND Calif. Over IPO
----------------------------------------------------
Violin Memory, Inc., disclosed in its Form 10-Q filed on December
9, 2013, with the U.S. Securities and Exchange Commission for the
quarterly period ended October 31, 2013, that beginning on
November 26, 2013, several purported class action lawsuits were
filed in the United States District Court for the Northern
District of California, naming as defendants the Company, a number
of present or former directors and officers, and several
underwriters of the Company's September 27, 2013 initial public
offering, or IPO. The complaints purport to assert claims under
the federal securities laws on behalf of purchasers of the
Company's common stock issued in the IPO or purchased in the
market through November 21, 2013, and seek damages in an
unspecified amount and other relief. The Company believes the
asserted claims are without merit and intend to vigorously defend
ourselves.
Violin Memory, Inc. is pioneering a new class of flash-based
storage systems that are designed to bring storage performance in-
line with high-speed applications, servers and networks. The
Company's Flash Memory Arrays are specifically designed at each
level of the system architecture starting with memory and
optimized through the array to leverage the inherent capabilities
of flash memory and meet the sustained requirements of business-
critical applications, virtualized environments and Big Data
solutions in enterprise data centers. The Company's Velocity
Peripheral Component Interconnect Express (PCIe), Flash Memory
Cards leverage its persistent memory-based architecture in servers
and are optimized for applications that require continuous access
to quantities of low latency persistent memory located directly in
servers.
WAWA INC: Fails to Design Fully Accessible POS Devices, Suit Says
-----------------------------------------------------------------
Debra L. Rozear, individually and on behalf of all others
similarly situated v. Wawa Inc., Case No. 5:14-cv-00164-JKG (E.D.
Pa., January 13, 2014) alleges violations of the Americans with
Disabilities Act and its implementing regulations.
The Plaintiff, a blind individual, contends that Wawa fails to
design, construct and own or operate Point Of Sale Devices that
are fully accessible to, and independently usable by, blind
people.
Wawa Inc. is headquartered in Wawa, Pennsylvania. The Company
owns and operates locations throughout portions of New Jersey,
Pennsylvania, Delaware, Maryland, Virginia and Florida.
The Plaintiff is represented by:
R. Bruce Carlson, Esq.
CARLSON LYNCH LTD.
115 Federal Plaza, Suite 210
Pittsburgh, PA 15212
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
E-mail: bcarlson@carlsonlynch.com
WESTERN EXPRESS: Class Seeks to Redress FLSA Violations
-------------------------------------------------------
Pierre Cormier, David Harmon, Michael Sowa, and Johannes
Stolvoort, on behalf of themselves and all those similarly
situated v. Western Express, Inc. and John Does 1-10, Case No.
(M.D. Tenn., January 13, 2014) seeks to redress violations by the
Defendants of the Fair Labor Standards Act.
The Defendants intentionally failed to compensate the Plaintiffs
for wages earned while in the employ of the Defendants, the
Plaintiffs contend.
Western Express, Inc. is a Tennessee Corporation headquartered in
Nashville, Tennessee. Western is engaged in the hauling and
delivery of freight across the United States. The Doe Defendants
are presently unknown persons.
The Plaintiffs are represented by:
Richard S. Swartz, Esq.
Justin L. Swidler, Esq.
SWARTZ SWIDLER, LLC
1878 Marlton Pike East, Suite 10
Cherry Hill, NJ 08003
Telephone: (856) 685-7420
Facsimile: (856) 685-7417
E-mail: rswartz@swartz-legal.com
jswidler@swartz-legal.com
- and -
Sean Riley Richardson, Esq.
1230 Second Avenue South
Nashville, TN 37210-4110
E-mail: seanrichardson@lawofficenashville.com
WHJ ENTERPRISE: Fails to Pay Wages Under FLSA, Fla. Suit Says
-------------------------------------------------------------
Earl Tinsley v. W.H.J. Enterprise, Inc. and William H. Jackson,
Case No. 0:14-cv-60078-WJZ (S.D. Fla., January 13, 2014) is
brought to recover unpaid wages, compensation and damages under
the Fair Labor Standards Act.
The Defendants are the Plaintiff's employer as defined by law.
Todd William Shulby, Esq.
TODD W. SHULBY, P.A.
4705 S.W. 148th Avenue, Suite 102
Davie, FL 33330-2417
Telephone: (954) 530-2236
Facsimile: (954) 530-6628
E-mail: tshulby@shulbylaw.com
WRIGHT SCAPES: Fails to Pay Overtime Wages, Florida Suit Claims
---------------------------------------------------------------
Ismael Castillo, and others similarly-situated v. Wright Scapes,
Inc., a Florida profit corporation, and Erik Wright, individually,
Case No. 0:14-cv-60077-JIC (S.D. Fla., January 13, 2014) seeks to
recover money damages for unpaid overtime wages under the laws of
the United States.
Wright Scapes, Inc., is doing business within the jurisdiction of
the Southern District Florida, where the Plaintiff was employed,
and is engaged in interstate commerce. Erik Wright has
operational control over the Company and is directly involved in
decisions affecting employee compensation and hours worked by
employees.
The Plaintiff is represented by:
Edilberto O. Marban, Esq.
THE LAW OFFICES OF EDDY O. MARBAN
1600 Ponce de Leon Boulevard, Suite 902
Coral Gables, FL 33134
Telephone: (305) 448-9292
Facsimile: (305) 448-9477
E-mail: marbanlaw@gmail.com
* Assured Research Expects "Third Wave" of Asbestos Litigation
--------------------------------------------------------------
Heather Isringhausen Gvillo, writing for Legal Newsline, reports
that researchers with Assured Research said a "third wave" of
asbestos litigation due to lung cancer could threaten insurers who
are relying on outdated actuarial models.
In a report titled "A Third Wave in Asbestos Liabilities Lies
Ahead," released in January by the New Jersey-based company,
researchers claim insurers will be swamped by "unexpected" reserve
charges because they are relying on outdated statistics.
William Wilt, president of Assured Research and co-author of the
report, said insurers aren't prepared for what is to come with
lung cancer cases because actuarial models are "systematically
biased." The number of mesothelioma cases isn't declining and lung
cancer cases are adding to the crowded system.
"In studying asbestos-related claims, we're seeing evidence of
outdated actuarial models. Since they're based on 30-year-old
epidemiological and demographic data, they can't accurately
forecast asbestos-related claims. Some insurers also seem to be
ignoring advances in medical knowledge and diagnosis -- and the
changing behaviors or consumers and personal injury lawyers,"
Mr. Wilt said.
"Insurers' reserves are for the more traditionally occupational
exposure to asbestos."
Mr. Wilt likened these asbestos models for insurers to a car from
the 1980s. Assuming the car has had one major tune-up on it since
the 1990s, it is now roughly 25 years and 100,000 miles later and
"most cars are going to need more than just an oil change."
Mr. Wilt said these actuary models are only getting oil changes.
The insurance models were developed based on research in the
1980s, which was "all well and good" 30 years ago when the models
were first created, he says. Then in the 1990s, the models were
recalibrated to account for life expectancy.
But Mr. Wilt says a lot has changed in society since that
overhaul, including average smoking habits and asbestos exposure.
He added that the models are tweaked each year with slight
changes, but nothing major is done to modernize the system.
"It's not like the models haven't received any attention,"
Mr. Wilt said. "They do. But there are significant changes in
the system that need to be overhauled rather than tweaked."
As for advances in medical knowledge, Wilt said people are living
longer and asbestos-related disease is easier to diagnose thanks
to high-resolution CT-scans.
Medical evidence is mounting, according to research cited by Wilt,
revealing that there is no 'lower limit' below which asbestos
fibers cannot cause mesothelioma.
"Meanwhile, the people most likely to make asbestos claims are
living longer -- long enough, in some cases, to be diagnosed with
asbestos related diseases," Wilt said.
Asbestos fibers sit dormant in the lungs for decades before the
damage is discovered. Previously, some of those who worked with
asbestos-containing products didn't live long enough for
mesothelioma, lung cancer or asbestosis to really set in.
"They are now living longer and living into their disease,"
Mr. Wilt said. "So they are alive to report asbestos-related
illnesses."
Considering the "wave" idea, the first wave of asbestos-related
claims came with miners and millers of asbestos.
The second wave came from people who handled asbestos-containing
products regularly at work, such as plumbers, shipbuilders and
carpenters. Mr. Wilt said insurers increased their reserves in
the early 2000s when the second wave hit.
The third wave is dominated by lung cancer claims from individuals
exposed to levels above background noise, "which are ostensibly
lower quality than those of mesothelioma because the cancer was
predominantly caused by smoking rather than asbestos."
Wilt argues that actuarial models do not take the rate of increase
in smokers' cases into consideration, resulting in inappropriately
calibrated models.
If claimants are demanding compensation in asbestos litigation,
but most likely developed lung cancer from unhealthy smoking
habits, then how do insurance companies sort out the genuine
claims from the fraudulent ones?
Mr. Wilt said that it may be difficult to disentangle the two.
However, citing medical research, he noted that the combination of
smoking and asbestos exposures make for a hazardous situation.
Mr. Wilt said asbestos is dangerous enough on its own. When
smoking is thrown into the mix, it creates a supra-additive.
"People have known for a long time that smoking is bad, asbestos
is bad," Mr. Wilt said. "Put the two together and it's really
bad.
"People who choose to smoke are creating a self-inflicted wound."
In a medical study titled "Asbestos, Asbestosis, Smoking, and Lung
Cancer," conducted by the Center for the Biology of Natural
Systems at Queen's College and the Department of Preventative
Medicine of Mount Sinai School of Medicine in New York,
researchers evaluated the effects of fairly uniform long-term
heavy exposure to asbestos in insulation workers.
The study found that asbestos and smoking made an ugly combination
for lung damage.
"Asbestos exposure alone increases lung cancer mortality among
nonsmokers and adds to smoking-associated lung cancer risk," the
report stated.
Medical research also indicates that short, intense bursts of
asbestos exposure can lead to illness. So if someone renovates a
home and deals with high levels of asbestos without the proper
safety techniques, asbestos damage in the lungs could be a problem
later.
According to the Queen's College and Mount Sinai study, asbestos-
related lung cancer deaths among insulators was strikingly similar
for both smokers and nonsmokers.
"Lung cancer remains the dominant cause of death among insulators,
killing one in five over the past three decades," the study found.
"The risk of lung cancer death among insulators who had quit
smoking at least 30 years previously converges with that of never-
smoking insulators," it continued.
Mr. Wilt said these lung cancer cases could continue increasing
drastically due to a new recommendation from the U.S. Preventive
Services Task Force that all current and former smokers between
the ages of 55 and 80 receive annual CT scans, which adds up to
about 10 million people.
Mr. Wilt said it is his understanding that the Affordable Care
Act, or Obamacare, may cover the cost of these annual CT scans,
which "greases a pathway" for smokers and those with asbestos
exposure to get early screenings.
He added that many of those new cases could be valid, but it may
also bring false claims out of the woodworks where people claim
asbestos-related cancers where there was no exposure.
With an influx of new lung cancer cases, many of which could be
fraudulent, it could put a strain on asbestos trusts, depleting
their reserves of money, as well as insurers, he says.
"As an observer, it seems like a recipe for trouble," Mr. Wilt
said.
As if asbestos litigation wasn't already on the rise, the report
also attributes possible increases in lung cancer asbestos
lawsuits to social media and its ability to reach larger crowds.
"We believe this third wave will be aided by the growing
prevalence of social media sites such as Google and YouTUbe, which
have lowered the cost of prospecting for claimants by lawyers. If
you need convincing, type the name of any well-known asbestos law
firm into a search engine and see how fast they come back to you
with offers of direct conversation," said Alan Zimmermann,
managing director of Assured Research and co-author of the report.
"The confluence of outdated actuarial models, sifts in life
expectancies, medical knowledge, social media, and now recommended
screening, can't be good news for insurers that are funding higher
than expected claims on a pay-as-you-go basis," Mr. Wilt added.
* U.S. Vehicle Recalls in 2013 Reach Nine-Year High
---------------------------------------------------
The Associated Press reports that automakers recalled 21.9 million
cars and trucks in the U.S. last year, a nine-year high.
The National Highway Traffic Safety Administration says automakers
initiated 632 separate vehicle recalls in 2013, up 9 percent from
the prior year.
Companies are saving money by using more common parts. But that
can force them to recall many more vehicles when something goes
wrong.
Chrysler Group initiated the most recalls, with 36. Among those
was a recall of 282,000 minivans whose air bags could deploy on
the wrong side. In all, Chrysler recalled 4.7 million vehicles
last year.
After Chrysler, General Motors had the most recalls, with 23.
Mazda had the fewest, with two.
Toyota recalled the most vehicles, with 5.3 million in 15 separate
recalls.
Mercedes-Benz recalled the fewest vehicles, with 747.
*********
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
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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.
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Information contained herein is obtained from sources believed to
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