/raid1/www/Hosts/bankrupt/CAR_Public/090128.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, January 28, 2009, Vol. 11, No. 19
Headlines
BANK OF AMERICA: Settles "Closson" Overdraft Lawsuit for $35M
DIEDRICH COFFEE: Calif. Gives Preliminary OK to Labor Suit Deal
DIEDRICH COFFEE: Settles "Willems" Labor Litigation in Calif.
FUCCILLO AUTOMOTIVE: Faces Suit in N.Y. Over Insurance Policies
GENERAL MOTORS: Notification Program Begins for "Soders" Deal
KPMG LLP: Court Affirms Dismissal From Peregrine Systems Lawsuit
LANDRY'S RESTAURANTS: Settlement of Suit Pending Court Approval
LANDRY'S RESTAURANTS: Still Faces Tex. Litigation Over CEO's Bid
MERRILL LYNCH: Faces Fraud Lawsuit Over Auction Rate Securities
METLIFE INSURANCE: Defending Remaining Claims for Improper Sales
PRECISION DRILLING: "Ahrens" Suit v. Grey Wolf Pending in Texas
SCOTT-GROSS CO: Settles Lawsuit Over Cylinder Exchange Program
SCRIPPS HEALTH: Krause Kalfayan Files Suit Over Medical Bills
TENET HEALTHCARE: Certification Motion in 2 Labor Cases Pending
TENET HEALTHCARE: Lawsuit Over Unpaid Overtime Pending in Calif.
TENET HEALTHCARE: Suits Over Hurricane Katrina Injuries Pending
TENET HEALTHCARE: To Defend Appeal v. Dismissed Boca Raton Suit
TREX CO: Defends Claims on Failure to Remedy Defective Products
WAL-MART STORES: Faces Antitrust Suit Over Netflix DVD Agreement
* NERA Releases Canadian Securities Class Action Trends Report
New Securities Fraud Cases
DEUTSCHE ALT-A: Coughlin Stoia Files N.Y. Securities Fraud Suit
*********
BANK OF AMERICA: Settles "Closson" Overdraft Lawsuit for $35M
-------------------------------------------------------------
Bank of America Corp. settled proposed $35,000,000 settlement in
a purported class-action lawsuit that is based on allegations of
misconduct relating in part to its assessment of certain fees in
relation to debit card transactions.
The suit is captioned, "Closson v. Bank of America, Case No. CGC
04436877," and was filed in the Superior Court of the State of
California - County of San Francisco.
The lawsuit claims Bank of America (and by extension, Fleet
Bank, LaSalle Bank and U.S. Trust Company, which it acquired)
encouraged its customers to use Bank of America debit cards and
increased the number of fees charged to customers using Bank of
America debit cards through the order in which such transactions
are posted and the account balance information it provides.
It also claims that Bank of America:
-- authorizes debit card transactions that will result in
overdraft fees;
-- fails to warn customers that specific debit card
transactions may result in overdrawn accounts;
-- posts debit card and other transactions in high-to-low
order; and
-- provides account balance information to customers that
is not current, accurate or as advertised.
In addition, the lawsuit claims that Bank of America's customer
agreements are unconscionable, and that Bank of America does not
provide customers with copies of account agreements until after
they open their accounts.
Generally, the settlement provides that Bank of America will pay
a total of $35 million. Certain customers and former customers
of Fleet Bank, LaSalle Bank, LaSalle Bank Midwest, and U.S.
Trust Company may be eligible for the settlement.
For more details, contact:
Bank of America Settlement Administrator
P.O. Box 9339,
Minneapolis, MN 55440-9339
Phone: 1-877-625-9405
Web site: http://www.clossonsettlement.com
DIEDRICH COFFEE: Calif. Gives Preliminary OK to Labor Suit Deal
---------------------------------------------------------------
The U.S. District Court for the Central District of California
gave preliminary approval to a settlement reached in purported
class-action suit against Diedrich Coffee, Inc., alleging that
it violated labor laws.
On Sept. 21, 2006, a purported class-action complaint entitled,
"Jason Reid; Kimberly Cornia, et al. v. Diedrich Coffee, et
al.," was filed in the U.S. District Court for the Central
District of California by two former employees, who worked in
the positions of team member and shift manager.
The case involves the issue of whether employees and former
employees who worked in California stores during specified time
periods were deprived of overtime pay, missed meal and rest
breaks.
In addition to unpaid overtime, this case seeks to recover
waiting time penalties, interest, attorneys' fees and other
types of relief on behalf of the current and former employees in
the purported class.
The company has entered into a settlement with the plaintiffs in
the lawsuit. This settlement has been given preliminary
approval by the court. A final approval hearing is set for
April 27, 2009.
As of Dec. 10, 2008, the company estimates the total amount to
settle this claim to be $693,000 and has recorded an accrual for
this amount, according to Diedrich Coffee's Dec. 10, 2008 Form
10-Q Filing with the U.S. Securities and Exchange Commission.
Diedrich Coffee, Inc. -- http://www.diedrich.com/-- is a
specialty coffee roaster, wholesaler and retailer. The company
sells brewed, espresso-based and various blended beverages
primarily made from its own fresh roasted premium coffee beans,
as well as light food items, whole bean coffee and accessories,
through company operated and franchised retail locations.
DIEDRICH COFFEE: Settles "Willems" Labor Litigation in Calif.
-------------------------------------------------------------
Diedrich Coffee, Inc., settled a purported class-action lawsuit
over allegations that it violated California labor laws.
The purported class-action complaint is entitled, "Deborah
Willems, et al. v. Diedrich Coffee., et al." It was filed in
Orange County, California Superior Court on Feb. 2, 2007, on
behalf of another former employee who worked in the position of
general manager.
The case involves the issue of whether employees and former
employees who worked in California stores during specified time
periods were deprived of overtime pay, missed meal and rest
breaks.
In addition to unpaid overtime, the case seeks to recover
waiting time penalties, interest, attorneys' fees and other
types of relief on behalf of the current and former employees in
the purported class.
Subject to court approval, the Company has entered into a
tentative settlement with the plaintiffs in the lawsuit. As of
December 10, 2008, the Company estimates the total amount to
settle this claim to be $251,000 and has recorded an accrual for
this amount, according to Diedrich Coffee's Dec. 10, 2008 Form
10-Q Filing with the U.S. Securities and Exchange Commission.
Diedrich Coffee, Inc. -- http://www.diedrich.com/-- is a
specialty coffee roaster, wholesaler and retailer. The company
sells brewed, espresso-based and various blended beverages
primarily made from its own fresh roasted premium coffee beans,
as well as light food items, whole bean coffee and accessories,
through company operated and franchised retail locations.
FUCCILLO AUTOMOTIVE: Faces Suit in N.Y. Over Insurance Policies
---------------------------------------------------------------
Fuccillo Automotive Group, Inc. is facing a $5 million class-
action lawsuit for allegedly selling fraudulent insurance
policies on theft protection, Christen Gowan of The Albany Times
Union.
Heidi Seekamp, who bought a new Hyundai Elantra from Fuccillo
Lincoln Mercury Hyundai in Schenectady in May 2007, alleged in
the lawsuit, filed in the U.S. District Court for the Northern
District of New York, that she was sold an insurance policy
covering window etchings called an Auto Theft Security Discount
Guarantee, according to The Albany Times Union.
The policy, sold for $295 per car, could have been purchased by
at least 17,000 Fuccillo customers in the state over the last
three years, according to the suit. Fuccillo, based near
Watertown, operates more than a dozen dealerships in New York.
If a vehicle couldn't be located after being lost or stolen, the
policy would pay $2,000, reports The Albany Times Union.
"The allegation is that it's a company-wide practice," said
Sergei Lemberg, a consumer protection attorney based in
Stamford, Conn., who is listed as the lead attorney in the
litigation. He adds, "That's based on some research that we
have done."
The insurance policy would be legal in most cases, Mr. Lemberg
tells The Albany Times Union. But Fuccillo used Universal
Automotive Services, Inc., an insurance underwriter not
authorized to do business in New York, to facilitate the
policies, according to court documents obtained by The Albany
Times Union.
The suit states that Fuccillo etched a car's vehicle
identification number onto the driver and passenger side
windows. The etchings are designed to serve as a theft
deterrent because a VIN is traceable by law enforcement
agencies, making it harder for a thief to sell the parts of a
car with etchings, according to The Albany Times Union report.
The suit is "Seekamp v. Fuccillo Automotive Group, Inc. et al.,
Case No. 1:09-cv-00018-LEK-DRH," filed in the U.S. District
Court for the Northern District of New York, Judge Lawrence E.
Kahn.
Representing the plaintiff is:
Sergei Lemberg, Esq. (slemberg@lemberglaw.com)
Lemberg & Associates LLC
1100 Summer Street
Floor 3
Stamford, CT 06905
Phone: 203-653-2250
Fax: 203-653-3424
GENERAL MOTORS: Notification Program Begins for "Soders" Deal
-------------------------------------------------------------
LANCASTER, Pa., Jan. 26 /PRNewswire/ -- A notification
program began today, as ordered by the Court of Common Pleas of
Lancaster County, to alert those who bought certain new GM
vehicles from Pennsylvania GM Dealers about a proposed
settlement in the purported class-action, suit, "Soders v.
General Motors Corp., No. CI-00-04255," involving GM's marketing
programs.
The case is about GM adding 1% of the Manufacturer's
Suggested Retail Price ("MSRP") to the invoice for certain new
vehicles it sold to its dealers, as part of their "Marketing
Initiative" programs. The lawsuit claims that GM required
dealers to use the 1% amount for advertising, and that this
violated Pennsylvania law. The lawsuit also claims that dealers
passed this amount on to consumers when they purchased vehicles.
GM denies any wrongdoing, and states that the 1% was a legal,
wholesale price increase to its dealers, and that dealers did
not necessarily pass on the 1% amount to each purchaser.
The settlement includes a group of people, called a "Class"
or "Class Members," who bought a new vehicle at retail in
Pennsylvania from a franchised dealer that was made or
distributed by GM. The GM dealer must have purchased the new
vehicle on or before March 31, 1999, but after (a) September 1,
1998 for Chevrolet or GMC Truck vehicles; (b) July 1, 1989 for
Cadillac or Oldsmobile vehicles; (c) July 1, 1990 for Pontiac
vehicles; and (d) August 1, 1990 for Buick vehicles.
The Class does not include anyone who purchased vehicles
under the GM Employee Purchase Plans, GM qualified fleet
purchasers, government entities, attorneys of record in this
case, lessees, or anyone who previously requested exclusion from
the Class.
The settlement provides rebates certificates worth up to
$200 toward the purchase or lease of a new GM vehicle.
Certificates will be valid for three years after the settlement
receives final court approval. Up to two certificates can be
used toward the purchase of one vehicle.
Notices informing Class Members about their legal rights
are scheduled to appear in Pennsylvania newspapers and magazines
leading up to a hearing on April 28, 2009, when the Court will
decide whether to grant final approval to the settlement.
The Court has appointed Joseph F. Roda and Michele S.
Burkholder, RodaNast, P.C. of Lancaster, Pennsylvania, to
represent the Class as "Class Counsel."
Those affected by the settlement can send in a claim form
to ask for a rebate certificate, object to the settlement, or
ask to appear and speak at the fairness hearing. Claim forms
must be postmarked no later than June 15, 2009. The deadline to
object to the settlement or request to appear and speak at the
hearing is March 16, 2009.
For more details, contact:
"Soders v. General Motors Corp."
PO Box 91196
Seattle, WA 98111-9296
Phone: 1-888-866-1738
Web site: http://www.onepercentcase.com
KPMG LLP: Court Affirms Dismissal From Peregrine Systems Lawsuit
----------------------------------------------------------------
The U.S. Court of Appeals for the Ninth Circuit has affirmed the
dismissal of claims against KPMG LLP in relation to a securities
class-action lawsuit against former software firm Peregrine
Systems, Inc. involving accounting fraud, Law360 reports.
Peregrine's financial advisory firm, KPMG, was accused of
participating in the scheme, according to Law360.
On Jan. 23, 2009, the Ninth Circuit issued an opinion affirming
the U.S. District Court for the Southern District of
California's dismissal with prejudice of claims against KPMG and
spin-off company BearingPoint, Inc., reports Law360.
LANDRY'S RESTAURANTS: Settlement of Suit Pending Court Approval
---------------------------------------------------------------
Landry's Restaurants, Inc.'s tentative settlement agreement with
the plaintiffs in the consolidated class action lawsuit against
Rainforest Cafe, Inc. is subject to court approval, according to
the company's Form 8-K filing with the U.S. Securities and
Exchange Commission dated Jan. 16, 2009.
On Feb. 18, 2005, and subsequently amended, a purported class-
action lawsuit against Rainforest Cafe, Inc. was filed in the
Superior Court of California in San Bernardino by Michael D.
Harrison, et. al.
Subsequently, on Sept. 20, 2005, another purported class-action
lawsuit against Rainforest Cafe, Inc. was filed in the Superior
Court of California in Los Angeles by Dustin Steele, et. al.
On Jan. 26, 2006, both lawsuits were consolidated into one
action by the state Superior Court in San Bernardino.
The lawsuits allege that Rainforest Cafe violated wage and hour
laws, including not providing meal and rest breaks, uniform
violations and failure to pay overtime.
The company has reached a tentative settlement agreement, which
it expects to submit to the court and fully accrued the amount.
Landry's Restaurants, Inc. -- http://www.landrysrestaurants.com/
-- is a diversified restaurant hospitality and entertainment
company principally engaged in the ownership and operation of
full-service, casual dining restaurants, primarily under the
names of Rainforest Cafe, Saltgrass Steak House, Landry's
Seafood House, The Crab House, Charley's Crab and The Chart
House. As of Dec. 31, 2007, the company owned and operated over
179 full-service and certain limited-service restaurants in 28
states. It offers concepts ranging from upscale steak and
seafood restaurants to casual theme-based restaurants. The
company is also engaged in the ownership and operation of select
hospitality businesses, including hotel and casino resorts that
provide dining, leisure and entertainment experiences, including
the Golden Nugget Hotels and Casinos in downtown Las Vegas and
Laughlin, Nevada. The company operates its restaurants through
three divisions: Landry's Division, Rainforest Cafe, and
Saltgrass Steak House.
LANDRY'S RESTAURANTS: Still Faces Tex. Litigation Over CEO's Bid
----------------------------------------------------------------
Landry's Restaurants, Inc., continues to face a consolidated
class-action lawsuit in connection with a proposal to acquire
all of the company's outstanding common stock.
On Jan. 27, 2008, the company's board of directors received a
letter from Tilman J. Fertitta, chairman, president and CEO of
the company, proposing to acquire all of the company's
outstanding common stock for $23.50 per share in cash,
representing a 41% premium over the closing price of the
company's common stock on Jan. 25, 2008.
On April 4, 2008, Mr. Fertitta revised his offer to acquire all
of the outstanding common stock to a cash purchase price of
$21.00 per share, representing a 37% premium over the closing
price of the company's common stock on April 3, 2008.
Immediately following the announcement of Mr. Fertitta's offer
to acquire the company's outstanding common stock, the following
lawsuits were filed:
-- "Dennis Rice, on Behalf of Himself and all Others
Similarly Situated v. Landry's Restaurants, Inc., et
al., Cause No. 2008-05211," filed in the 157th
Judicial District Court of Harris County, Texas, on
Jan. 28, 2008;
-- "Steamfitters Local 449 Pension Fund, Individually and
on Behalf of all Others Similarly Situated v. Landry's
Restaurants, Inc., et al., Cause No. 2008-07100,"
filed in the 11th Judicial District Court of Harris
County, Texas, on Feb. 1, 2008;
-- "Robert Reynolds v. Landry's Restaurants, Inc., et
al., Cause No. 2008-07484," filed in the 113th
Judicial District Court of Harris County, Texas, on
Feb. 5, 2008;
-- "Robert Caryer, on Behalf of Himself and all Others
Similarly Situated v. Landry's Restaurants, Inc., et
al., Cause No. 2008-007677," filed in the 113th
Judicial District Court of Harris County, Texas, on
Feb. 6, 2008.
-- "Matthew and Wendy Maschler, on Behalf of Themselves
and all Others Similarly Situated v. Tilman J.
Fertitta, et al., Cause No. 2008-09042," filed in
the 164th Judicial District Court of Harris County,
Texas, on Feb. 13, 2008.
The suits each seek to be classified as a putative class-action
suit in which the company and the members of its Board are named
as defendants.
The plaintiffs allege that the company and the individual
defendants have breached or will breach fiduciary duties to its
shareholders with regard to the presentation or consideration of
Mr. Fertitta's proposal to acquire all of its outstanding common
stock.
The Caryer suit purports to assert an additional claim of
alleged aiding and abetting breach of fiduciary duty against the
company. The Maschler case purports to assert an additional
claim for indemnification.
The plaintiffs seek to enjoin in some form the consideration or
acceptance of Mr. Fertitta's proposal. The amount of damages
initially sought is not indicated by any plaintiff.
On March 26, 2008, all of these cases were consolidated into one
action (Class Action Reporter, Sept. 26, 2008).
The company reported no further development regarding the matter
in its Form 8-K filing with the U.S. Securities and Exchange
Commission dated Jan. 16, 2009.
Landry's Restaurants, Inc. -- http://www.landrysrestaurants.com/
-- is a diversified restaurant hospitality and entertainment
company principally engaged in the ownership and operation of
full-service, casual dining restaurants, primarily under the
names of Rainforest Cafe, Saltgrass Steak House, Landry's
Seafood House, The Crab House, Charley's Crab and The Chart
House. As of Dec. 31, 2007, the company owned and operated over
179 full-service and certain limited-service restaurants in 28
states. It offers concepts ranging from upscale steak and
seafood restaurants to casual theme-based restaurants. The
company is also engaged in the ownership and operation of select
hospitality businesses, including hotel and casino resorts that
provide dining, leisure and entertainment experiences, including
the Golden Nugget Hotels and Casinos in downtown Las Vegas and
Laughlin, Nevada. The company operates its restaurants through
three divisions: Landry's Division, Rainforest Cafe, and
Saltgrass Steak House.
MERRILL LYNCH: Faces Fraud Lawsuit Over Auction Rate Securities
---------------------------------------------------------------
Merrill Lynch & Co., Inc., and Merrill Lynch Pierce Fenner &
Smith, Inc. are facing a purported class-action suit in Texas
for selling investors more than $38.7 million in auction rate
securities and refusing to buy them back after the market
collapsed in February 2008, Law360 reports
The class-action suit was filed in the U.S. District Court for
the Southern District of Texas on Jan. 23, 2009 under the
caption, "Blankfeld et al v. Merrill Lynch & Co., Inc. et al.,
Case No. 4:2009-cv-00162." It generally alleges violations of
the 15:78m(a) Securities Exchange Act.
Named as plaintiffs in the suit are:
-- Max Blankfeld,
-- Johnny Edwards,
-- Adam Finn,
-- David Klein,
-- Mark Mey,
-- Alan Schaefer,
-- Fiore Talarico, and
-- Robert the.
The suit is "Blankfeld et al v. Merrill Lynch & Co., Inc. et
al., Case No. 4:2009-cv-00162," filed in the U.S. District Court
for the Southern District of Texas, Judge Samuel B. Kent,
presiding.
Representing the plaintiffs is:
Stephen S. Andrews, Esq. (andrews@ohdlegal.com)
Oaks Hartline & Daly
2323 S. Shepherd
14TH Floor
Houston, TX 77019
Phone: 713-979-5123
Fax: 713-979-4440
METLIFE INSURANCE: Defending Remaining Claims for Improper Sales
----------------------------------------------------------------
MetLife Insurance Company of Connecticut continues to defend
against all pending claims, including class action lawsuits,
alleging improper marketing or sales of individual life
insurance policies, annuities, mutual funds or other products.
Some sales practices claims have been resolved through
settlement. Other sales practices claims have been won by
dispositive motions or have gone to trial.
Most of the current cases seek substantial damages, including in
some cases punitive and treble damages and attorneys' fees.
Additional litigation relating to the Company's marketing and
sales of individual life insurance, annuities, mutual funds or
other products may be commenced in the future, according to the
company's Form 8-K filing with the U.S. Securities and Exchange
Commission dated Jan. 21, 2009.
MetLife Insurance Company of Connecticut --
http://www.metlife.com-- is organized into two segments,
Individual and Institutional. MetLife Investors USA Insurance
Company (MLI-USA) is the company's subsidiary. On Dec. 7, 2007,
MetLife Life and Annuity Company of Connecticut (MLAC), a former
subsidiary was merged with and into MetLife Insurance Company of
Connecticut, its parent.
PRECISION DRILLING: "Ahrens" Suit v. Grey Wolf Pending in Texas
---------------------------------------------------------------
The class-action lawsuit filed by Howard G. Ahrens against
Precision Drilling Trust's subsidiary, Grey Wolf, Inc., remains
pending as of Jan. 21, 2009, the date of the company's Form F-10
Registration Statement filed with the Securities and Exchange
Commission.
On Sept. 4, 2008, Mr. Ahrens filed a class action petition in a
case styled Howard G. Ahrens, On Behalf of Itself and All Others
Similarly Situated v. Grey Wolf, Inc., Frank M. Brown, William
T. Donovan, Thomas P. Richards, Robert E. Rose, Trevor Turbidy,
Steven A. Webster, and William R. Ziegler (Cause No. 2008-
53565), in the District Court of Harris County, Texas, 127th
Judicial District.
The petitioner, a purported Grey Wolf shareholder at the
relevant time, filed suit on behalf of himself "and all others
similarly situated" alleging:
(1) Grey Wolf's board of directors breached fiduciary duties
owed to shareholders in connection with the Acquisition
by, among other things, failing to take steps to maximize
the value of Grey Wolf to public shareholders, and
(2) Grey Wolf aided and abetted the alleged breach of
fiduciary duty by its board of directors. The plaintiff
sought to enjoin the Acquisition and also asked for other
relief, including an award of attorneys' and experts'
fees.
On Oct. 27, 2008, Grey Wolf and its board of directors
challenged the plaintiff's standing to bring a direct action
against the board of directors because, under Texas law, the
members of the board of directors only owe fiduciary duties to
Grey Wolf, not individual shareholders. The Court sustained
this challenge and provided the plaintiff with the opportunity
to amend his pleading, which he did on Dec. 12, 2008. The
substance of the plaintiff's claims remained unchanged and the
standing issue was re-urged.
On Dec. 18, 2008, the Court ruled in favor of Grey Wolf and the
board of directors, holding that the plaintiff could not enjoin
the Acquisition.
Precision Drilling Trust -- http://www.precisiondrilling.com/--
is an open-ended investment trust. The Trust holds a 99.86%
interest in Precision Drilling Limited Partnership (PDLP), which
is a limited partnership. On Nov. 7, 2005, Precision Drilling
Corporation became a wholly owned subsidiary of PDLP. Its
operations are carried out in two segments: Contract Drilling
Services, and Completion and Production Services. In December
2008, the Trust announced its acquisition of Grey Wolf, Inc.
SCOTT-GROSS CO: Settles Lawsuit Over Cylinder Exchange Program
--------------------------------------------------------------
RADNOR, Pa. & WINCHESTER, Ky., Jan 26, 2009 (BUSINESS WIRE)
-- Airgas, Inc. and Scott-Gross Company, Inc. today jointly
announced the settlement of a lawsuit relating to a cylinder
exchange program operated by Thoroughbred Industrial Cylinder
Exchange, LLC ("Thoroughbred"), a wholly-owned subsidiary of
Scott-Gross Co. Inc. All parties have agreed to dismiss their
various claims and counterclaims without any admission of
wrongdoing by any party and without certification of the
plaintiffs' claims as a class action.
The lawsuit was filed in October 2005 on behalf of Airgas
Mid-America, Inc., one of the regional companies that make up
Airgas' distribution business, and Commonwealth Supply Company
of York, PA seeking to represent a nationwide class of
independent distributors. The lawsuit alleged that the
Thoroughbred program accepted for exchange large industrial
welding gas cylinders owned by Airgas regional companies,
Commonwealth Supply Co. and other distributors. The lawsuit
named as defendants Scott-Gross, Thoroughbred and two
Thoroughbred customers.
The parties have agreed that Thoroughbred will no longer
accept for exchange non-Thoroughbred high pressure compressed
gas cylinders with a capacity in excess of 200 cubic feet.
Thoroughbred will alter its customer training materials,
marketing materials, signage and website within 90 days to
reflect that the program no longer accepts non-Thoroughbred high
pressure cylinders with a capacity in excess of 200 cubic feet.
Thoroughbred has also agreed to return high pressure
cylinders (with a capacity in excess of 200 cubic feet) and
large acetylene cylinders (with a capacity of between 100 and
160 cubic feet) owned by Airgas regional companies or
Commonwealth Supply Co. that are currently in the Thoroughbred
inventory or that may come into Thoroughbred's possession in the
future.
The settlement allows Thoroughbred to continue to exchange
any Thoroughbred cylinders previously sold to its customers.
As part of the settlement, Scott-Gross Co. Inc. and Thoroughbred
will dismiss their counterclaims against Airgas and Airgas Mid-
America alleging violation of Kentucky's Uniform Trade Secrets
Act, defamation and intentional interference with a contractual
relationship.
Both Airgas and Thoroughbred have agreed to enhance their
customer training materials and marketing materials to include
language similar to that now included in the Thoroughbred
Ownership Acknowledgment and Cautionary Notice found at
http://www.gaspony.com.
All parties further agreed to continue to work with the
Gases and Welding Distributors Association (GAWDA) to further
refine industry standards regarding appropriate practices for
verifying cylinder ownership, including continued participation
in the ongoing GAWDA Cylinder Exchange Task Force relating to
these issues.
"The settlement demonstrates our continued efforts to
balance the ownership rights of the distributor and the consumer
who legitimately owns compressed gas cylinders," said Philip
Scott, CEO of Scott-Gross Co. Inc. "We are happy that the
parties to this settlement could reach an agreement that
respects the interests of our industry and the consumer."
"Cylinder ownership is an important issue in industrial gas
distribution," said Michael L. Molinini, executive vice
president and chief operating officer of Airgas, Inc. "We are
pleased that all parties are finding common ground to protect
the distributor's ownership rights and to ensure that the
customer knows who owns and maintains the cylinders in their
possession."
Scott-Gross Co. Inc. -- http://www.scottgross.com-- was founded
in 1949. It is a family-owned company based in Winchester,
Kentucky that operates twenty-nine (29) retail locations in
eight (8) states. Scott-Gross also operates six (6) cylinder
fill plants, a bulk products distribution division, and a Purity
Plus(R) specialty gas production lab. Thoroughbred Industrial
Cylinder Exchange, LLC(R) operates the only nationwide customer-
owned cylinder purchase and exchange program with over 1500
propane and welding gas retail locations.
SCRIPPS HEALTH: Krause Kalfayan Files Suit Over Medical Bills
-------------------------------------------------------------
SAN DIEGO, Jan. 26 /PRNewswire/ -- Krause, Kalfayan, Benink
& Slavens, LLP filed a class action lawsuit today in San Diego
Superior Court on behalf of a putative class of California
emergency medical services patients whom, during the past four
years, Scripps Health billed for medical services after their
HMO's refused to pay the full amount of their emergency medical
bills.
The lawsuit alleges that Scripps Health and co-defendant La
Jolla Emergency Physicians Medical Group illegally engage in the
practice of "balance billing" of their emergency medical
services patients. Balance billing occurs when a dispute arises
between a medical service provider and HMO over the reasonable
value of medical services provided and the HMO refuses to pay
the full amount of the bill submitted. Rather than pursuing the
HMO, the medical service provider bills the patient for the
unpaid amounts in dispute.
California's Health and Safety Code, Section 1317 requires
hospitals and other emergency care providers to provide
emergency medical care to patients who request it without regard
to the patient's ability to pay. The Knox-Keene Health Care
Service Plan Act of 1975 (Cal. Health & Safety Code Sections
1340, et seq.), as amended in 1994, (the "Knox-Keene Act")
requires HMO's to reimburse emergency health care providers for
the emergency service they provide to an HMO's members.
California Department of Managed Health Care ("DMHC")
regulations require HMO's to pay the reasonable and customary
value of the emergency services provided.
On January 8, 2009, the California Supreme Court held that
the Knox-Keene Act and these DMHC regulations prohibit an
emergency medical provider from balance billing, remarking: "A
patient who is a member of an HMO may not be injected into the
dispute." Prospect Medical Group, Inc., et al v. Northridge
Emergency Medical Group, et al, S142209.
The lawsuit seeks unspecified restitution and/or damages on
behalf of a class of California patients illegally billed by
Scripps Health and La Jolla Emergency Physicians Medical Group.
For more details, contact:
Krause, Kalfayan, Benink & Slavens, LLP
625 Broadway
Suite 635
San Diego, CA, 92101
Phone: (619) 232-0331
Fax: (619) 232-4019
Web site: http://www.kkbs-law.com/
TENET HEALTHCARE: Certification Motion in 2 Labor Cases Pending
---------------------------------------------------------------
Motions for class certification in two labor cases filed against
Tenet Healthcare Corp. in Los Angeles Superior Court are
pending, according to the company's Jan. 21, 2009 Form 8-K
filing with the U.S. Securities and Exchange Commission.
The company has been defending three coordinated lawsuits in Los
Angeles Superior Court alleging that its hospitals violated
certain provisions of California's labor laws and applicable
wage and hour regulations.
On Feb. 14, 2008, one of these cases was certified as a class
action over the company's objections.
The company has opposed the motions for class certification in
the other two cases.
The plaintiffs in all three cases are seeking back pay,
statutory penalties and attorneys' fees.
Tenet Healthcare Corp. -- http://www.tenethealth.com/-- is
engaged in the provision of healthcare services, primarily
through the operation of general hospitals.
TENET HEALTHCARE: Lawsuit Over Unpaid Overtime Pending in Calif.
----------------------------------------------------------------
A wage and hour matter against Tenet Healthcare Corp.,
specifically involving allegations regarding unpaid overtime, is
pending in federal court in Southern California.
This case, which was first provisionally certified as a
collective action under the federal Fair Labor Standards Act for
the purpose of giving notice to potential class members, was
certified as a class action for all purposes on Feb. 12, 2008.
The plaintiff is seeking back pay, statutory penalties and
attorneys' fees.
No further details regarding the matter were disclosed by the
company in its Form 8-K filing with the U.S. Securities and
Exchange Commission filed on Jan. 21, 2009.
Tenet Healthcare Corp. -- http://www.tenethealth.com/-- is
engaged in the provision of healthcare services, primarily
through the operation of general hospitals.
TENET HEALTHCARE: Suits Over Hurricane Katrina Injuries Pending
---------------------------------------------------------------
Purported class-action lawsuits in connection to injuries
sustained in the aftermath of Hurricane Katrina remain pending
against certain hospitals of Tenet Healthcare Corp.
The company's hospitals are subject to claims and lawsuits in
the ordinary course of business. Most of these matters involve
allegations of medical malpractice or other injuries suffered at
the company's hospitals.
Three medical malpractice cases were filed as purported class
action lawsuits and involve former patients of Memorial Medical
Center and Lindy Boggs Medical Center in New Orleans.
In each case, family members allege, on behalf of themselves and
a purported class of other patients and their family members,
damages as a result of injuries sustained during Hurricane
Katrina, according to the company's Jan. 21, 2009 Form 8-K
filing with the U.S. Securities and Exchange Commission.
Tenet Healthcare Corp. -- http://www.tenethealth.com/-- is
engaged in the provision of healthcare services, primarily
through the operation of general hospitals.
TENET HEALTHCARE: To Defend Appeal v. Dismissed Boca Raton Suit
---------------------------------------------------------------
Tenet Healthcare Corp. intends to defend the decision dismissing
the civil case filed as a purported class action by Boca Raton
Community Hospital, which is on appeal at the U.S. Court of
Appeals for the Eleventh Circuit.
The action alleged that Tenet's past pricing policies and
receipt of Medicare outlier payments violated the federal
Racketeer Influenced and Corrupt Organizations Act, causing harm
to plaintiff.
The plaintiff sought unspecified amounts of damages (including
treble damages under RICO), restitution, disgorgement and
punitive damages.
In August 2007, the federal district court in Miami granted the
company's motion for summary judgment, thereby dismissing the
civil case.
The plaintiff subsequently filed an appeal to the U.S. Court of
Appeals for the Eleventh Circuit.
The company says in its Jan. 21, 2009 Form 8-K filing with the
U.S. Securities and Exchange Commission that the trial court's
dismissal was correct.
Tenet Healthcare Corp. -- http://www.tenethealth.com/-- is
engaged in the provision of healthcare services, primarily
through the operation of general hospitals.
TREX CO: Defends Claims on Failure to Remedy Defective Products
---------------------------------------------------------------
Trex Co., Inc. asserts that it has fully met its obligations to
its customers and that the claims that the company has failed to
provide adequate remedies for defective products are without
merit, according to its Form 8-K Filing with the U.S. Securities
and Exchange Commission dated Jan. 21, 2009.
On Jan. 15, 2009, the company received a copy of a complaint for
a class action lawsuit filed by the law firm Hagens Berman Sobol
Shapiro LLP against it on behalf of plaintiff, Mark Okano.
The complaint alleges certain product defects in the company's
products, and that Trex has failed to provide adequate remedies
for defective products.
The case was filed in the U.S. District Court, Western District
of Washington.
On Jan. 16, 2009, Hagens Berman issued a press release
announcing the filing of the class action lawsuit. The company
reviewed the merits of the claims. Following its review, the
company released the press release indicating its position with
regards the complaint.
On Jan. 19, 2009, the Company received service of process of a
complaint for a class action lawsuit filed by the law firms of
Lieff, Cabraser, Heimann & Bernstein, LLP, and Cohen, Milstead,
Hausfeld & Toll, PLLC, on behalf of Eric Ross, Thomas Mabrey,
Jr. and Dianna Spalliero. The complaint makes similar
allegations to the Hagens Berman complaint. The case was filed
in the Superior Court of California, Santa Cruz County. The
Company reviewed the merits of the claims, and its position is
similar to the position it has taken with respect to the Hagens
Berman complaint.
Trex Co., Inc. -- http://www.trex.com/-- is a manufacturer of
wood-alternative decking, railing, fencing products and trim,
which are marketed under the brand name Trex. The company
manufactures its products in a process that combines waste wood
fibers and reclaimed polyethylene. Its decking, railing and
fencing products are provided in a selection of sizes and
lengths, and are also available with several finishes and
numerous colors. The products are used primarily for
residential and commercial decking and railing.
WAL-MART STORES: Faces Antitrust Suit Over Netflix DVD Agreement
----------------------------------------------------------------
Wal-Mart Stores, Inc., Walmart.Com USA LLC, and Netflix, Inc.
are facing a purported antitrust class-action suit in Arkansas
regarding the movie rental market agreement between Wal-Mart and
Netflix, The Morning News reports.
The suit was filed in the U.S. District Court for the Western
District of Arkansas on Jan. 26, 2009 by Marci Badgerow. It
contends hat Netflix customers paid higher DVD online rental
prices after Netflix reached a market agreement with Wal-Mart,
an unfair restraint of trade, according to The Morning News
report.
Ms. Badgerow filed the case on behalf of all consumers who paid
to rent DVDs from Netflix from May 19, 2005 to the present,
reports The Morning News.
Netflix, Wal-Mart Stores and Walmart.Com agreed by May 2005 that
Wal-Mart would stop competing with Netflix for online DVD movie
rentals.
Netflix then promoted DVD sales at Walmart and walmart.com. It
would not sell new DVDs in competition with Wal-Mart, the suit
stated.
On May 19, 2005, Wal-Mart announced the DVD agreement in a joint
press release with Netflix.
Netflix then charged higher subscription prices for DVD rentals
than it otherwise would have charged if more competitors
remained in the market, according to the suit.
The suit alleges that Netflix tried to get a monopoly in online
DVD rentals in violation of the Sherman Antitrust Act and the
agreement unfairly restrained trade, reports The Morning News.
The Morning News reported that the suit is seeking to void the
market agreement between Wal-Mart and Netflix; to declare the
agreement was illegal; and to award plaintiffs three times the
normal damages, though the suit did not state a dollar amount.
The suit is "Badgerow v. Wal-Mart Stores, Inc. et al., Case No.
5:09-cv-05023-RTD," filed in the U.S. District Court for the
Western District of Arkansas, Judge Robert T. Dawson, presiding.
Representing the plaintiffs is:
Dawn C. Egan, Esq. (degan@kester.arcoxmail.com)
The Kester Law Firm
P.O. Box 184
1160 N. College Ave., Ste. 1
Fayetteville, AR 72702
Phone: 479-582-4600 or 479-631-4500
Fax: 479-571-1671
* NERA Releases Canadian Securities Class Action Trends Report
--------------------------------------------------------------
Mon, 26 Jan 2009 15:06:50 GMT, TORONTO -- (Business Wire)
NERA Economic Consulting, a leading global provider of economic
advice and analysis in business, legal, and regulatory matters,
has released a first-of-its-kind report analyzing securities
class actions in Canada: Trends in Canadian Securities Class
Actions: 1997-2008, Canada Strikes its Own Course.
According to NERA's report, a record nine securities class
actions were filed in 2008, an 80% increase over the previous
maximum annual filings and a 125% increase over 2007 filings.
This increase in filings may reflect recent legislative changes
to the provincial Securities Acts. Between 2005 and 2008, four
provinces (Ontario, Alberta, Qu‚bec, and British Columbia) have
introduced civil liability for continuous disclosure and a right
of action for investors harmed by misrepresentations or failures
to make timely disclosure. These amendments to the provinces'
Securities Acts have opened the door to securities class
actions.
While these filing numbers are miniscule in comparison to
similar filings in the US, even controlling for the smaller size
of Canada's financial markets, this "rise in securities class
action filings is an indication that plaintiffs' counsel are
prepared to test the new provisions of the legislation," says
NERA Senior Vice President and co-author Mark Berenblut.
Credit Crisis and Options Backdating Class Actions are
Introduced to Canada
2008 witnessed the first Canadian securities class action
filings related to the global credit crisis, which has resulted
in a wave of US litigation. Stock prices around the globe have
been affected by the exposure of public companies to subprime
mortgages. The CIBC case, the first Canadian case to reflect the
global impact of stock price volatility connected to companies
exposed to mortgage-related securities, involves allegations
relating to CIBC's exposure to subprime mortgage loans.
2008 also saw the first class actions involving options
backdating allegations in Canada, some two years behind the peak
in options-related filings in the US. Nevertheless, NERA's
report notes, plaintiffs' counsel have identified and threatened
to bring actions against as many as 50 TSX-listed companies
suspected of having manipulated stock options between 1987 and
2005. This suggests that options manipulation cases may become
a larger component of Canadian class action filings in the
future.
Settlement Trends
Since class action legislation was first enacted in Canada,
20 securities class action cases have been settled.
Unsurprisingly, settlements in cases involving actions brought
in both US and Canadian courts tend to be larger than
settlements in cases brought only in Canada. The average
settlement for cross-border cases is $322 million, whereas the
average settlement for Canadian domestic shareholder class
actions is $73 million.
Trends in Canadian Securities Class Actions: 1997-2008,
Canada Strikes its Own Course also includes analyses of trends
in filings and allegations and trends in resolutions (verdicts
and settlements), and offers detailed data on pending
shareholder class actions.
Securities Class Action Trends Report Series
NERA has been analyzing trends in securities class actions
for more than 15 years and, in addition to this Canadian Trends
report, produces two studies on the topic annually in the US.
This report was authored by NERA Senior Vice President Mark
Berenblut, Vice President Bradley Heys, and Consultant Svetlana
Starykh.
For more details, and to read the full report, visit
http://www.nera.com/recenttrends.
NERA Economic Consulting -- http://www.nera.com-- is an
international firm of economists who understand how markets
work. It provides economic analysis and advice to corporations,
governments, law firms, regulatory agencies, trade associations,
and international agencies. Its global team of more than 600
professionals operates in over 20 offices across North America,
Europe, and Asia Pacific. NERA provides practical economic
advice related to highly complex business and legal issues
arising from competition, regulation, public policy, strategy,
finance, and litigation. Founded in 1961 as National Economic
Research Associates, its more than 45 years of experience
creating strategies, studies, reports, expert testimony, and
policy recommendations reflects its specialization in industrial
and financial economics. Because of its commitment to deliver
unbiased findings, NERA is widely recognized for its
independence. NERA's clients come to it expecting integrity and
the unvarnished truth.
New Securities Fraud Cases
DEUTSCHE ALT-A: Coughlin Stoia Files N.Y. Securities Fraud Suit
---------------------------------------------------------------
NEW YORK, Jan 26, 2009 (BUSINESS WIRE) -- Coughlin Stoia
Geller Rudman & Robbins LLP ("Coughlin Stoia") today announced
that a class action lawsuit is pending in the United States
District Court for the Eastern District of New York on behalf of
purchasers who acquired the Mortgage Pass-Through Certificates
(the "Certificates") of Deutsche Alt-A Securities, Inc.
("Deutsche Alt-A") pursuant and/or traceable to the false and
misleading registration statement and prospectus supplements
issued in connection therewith by Deutsche Alt-A between May
2006 and May 2007 (collectively, the "Registration Statement").
The class includes purchasers of Certificates in the
following trusts:
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR2
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-AR3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA2
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR4
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-RAMP1
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR5
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-AB2
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR6
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-AB3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-OA1
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-AB4
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-AR2
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2007-AB1
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR2
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-AR3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA2
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR4
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-RAMP1
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR5
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-AB2
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR6
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-AB3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-OA1
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2006-AB4
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-AR2
Deutsche Alt-B Securities Mortgage Loan Trust, Series 2007-AB1
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR2
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-AR3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2006-AR3
Deutsche Alt-A Securities Mortgage Loan Trust, Series 2007-OA2
The complaint charges Deutsche Alt-A, certain of its
officers and directors and the issuers and underwriters of the
Certificates with violations of the Securities Act of 1933.
Deutsche Bank Securities ("Deutsche Securities") is a
securities firm which provides a range of financial services,
including engaging in the mortgage banking business. Deutsche
Securities acted as the underwriter in the sale of Deutsche Alt-
A offerings, helping to draft and disseminate the offering
documents. Deutsche Securities was the underwriter for all of
the Trusts.
The complaint alleges that, on May 1, 2006, Deutsche Alt-A
and the Defendant Issuers caused the Registration Statement to
be filed with the Securities and Exchange Commission ("SEC") in
connection with the issuance of billions of dollars of
Certificates. The Certificates were issued pursuant to
Prospectus Supplements, each of which was incorporated into the
Registration Statement. The Certificates included several
classes or tranches, which had various priorities of payment,
exposure to default, interest payment provisions and/or levels
of seniority. The Certificates were supported by large pools of
mortgage loans. The Registration Statement represented that the
mortgage pools would primarily consist of loan groups generally
secured by first liens on residential properties, including
conventional, adjustable rate and negative amortization mortgage
loans.
The complaint alleges that the Registration Statement
omitted and/or misrepresented the fact that the sellers of the
underlying mortgages to Deutsche Alt-A were issuing many of the
mortgage loans to borrowers who:
-- did not meet the prudent or maximum debt-to-income
ratio purportedly required by the lender;
-- did not provide adequate documentation to support the
income and assets required to issue the loans pursuant
to the lenders' own guidelines;
-- were steered to stated income/asset and low
documentation mortgage loans by lenders, lenders'
correspondents or lenders' agents, such as mortgage
brokers, because the borrowers could not qualify for
mortgage loans that required full documentation; and
-- did not have the income or assets required by the
lenders' own guidelines necessary to afford the
required mortgage loan payments, which resulted in
loans that borrowers could not afford to pay.
According to the complaint, by the fall of 2007, the truth
about the mortgage loans that secured the Certificates began to
be revealed to the public. As a result, the Certificates are no
longer marketable at prices anywhere near the price paid by
plaintiff and the Class and the holders of the Certificates are
exposed to much more risk with respect to both the timing and
absolute cash flow to be received than the Registration
Statement/Prospectus Supplements represented.
The plaintiff seeks to recover damages on behalf of all
purchasers of Certificates pursuant and/or traceable to the
Registration Statement (the "Class").
For more details, contact:
David A. Rosenfeld, Esq. (djr@csgrr.com)
Coughlin Stoia Geller Rudman & Robbins LLP
Phone: 800-449-4900 or 619-231-1058
Web site: http://www.csgrr.com/cases/deutschealta/
*********
A list of Meetings, Conferences and Seminars appears in each
Wednesday's edition of the Class Action Reporter. Submissions
via e-mail to carconf@beard.com are encouraged.
Each Friday's edition of the CAR includes a section featuring
news on asbestos-related litigation and profiles of target
asbestos defendants that, according to independent research,
collectively face billions of dollars in asbestos-related
liabilities.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills,
Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland
USA. Glenn Ruel S. Senorin, Stephanie T. Umacob, Gracele D.
Canilao, and Peter A. Chapman, Editors.
Copyright 2009. All rights reserved. ISSN 1525-2272.
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