/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/090907.mbx C L A S S A C T I O N R E P O R T E R Monday, September 7, 2009, Vol. 11, No. 176 Headlines APARTHEID REPARATIONS: South African Govt. Will Support Lawsuit BANK OF AMERICA: Faces Police & Fire Retirement System's Lawsuit BANK OF AMERICA: Faces Suit by Wyoming State Treasurer in N.Y. BANKWEST: Commercial Loan Customers Mulling Class Action Lawsuit BROCADE COMMS: Appeal of Junked Calif. Amended Complaint Pending CACHE INC: Settlement Gives Retail Customers $15 Vouchers COLONIAL BANCGROUP: Keller Rohrback Files ERISA Suit in M.D. Ala. FAIRFAX FINANCIAL: Amended Consolidated Securities Suit Pending HARRIS CORP: Defends Norfolk County's Federal Securities Action HEALTH INSURERS: Maldonado Medical Sues Insurers for Underpaying HEALTHWAYS: Discovery Ongoing in Consolidated Securities Suit HEALTHWAYS INC: Motion to Dismiss ERISA Breach Lawsuit Pending MARSH & MCLENNAN: Appeal to Approved Deal in N.J. Suit Pending MARSH & MCLENNAN: Continues to Face Lawsuits by Policyholders MARSH & MCLENNAN: Discovery in Securities Suit Ongoing in N.Y. MARSH & MCLENNAN: Discovery Ongoing in New York ERISA Lawsuit MARSH & MCLENNAN: Derivative Claims Over Putnam Funds Pending MARSH & MCLENNAN: Continues to Face ERISA Lawsuits with Putnam MERRILL LYNCH: Faces Funeral Directors' Suit to Void Ill. Order MERRILL LYNCH: Pre-Need Contract Holders' Suit v. MLPF&S Pending MERRILL LYNCH: MLPF&S Faces Clancy-Gernon Funeral Home's Lawsuit METLIFE: Lawyers-As-Witnesses Problem Might Disqualify Debevoise NBTY INC: Suit by Calif. Nutrition Bars Consumers Remain Stayed NBTY INC: False Advertising Suit v. MET-Rx in N.J. Still Stayed NOVELL INC: Corporate Waste & Unjust Enrichment Alleged in Mass. PERSHING LLC: Sued for Improper Public Access to Customer Data PFIZER: Sued for Off-Label Use Misrepresentation in E.D. Pa. ST. PAUL, MINN: 27 Arrested Protesters Sue City TARGET CORP: 7th Cir. Rejects Pitch for Class Certification TJX COS: Settles Computer Hacking-Related Lawsuit for $525,000 TOYOTA: Sued for Hiding & Destroying Corolla Safety Documents VIRGINIA: 4th Circuit Nixes Racial Profiling Case VISTAPRINT NV: Pursues Dismissal of Consolidated Consumer Suit WAL-MART STORES: Judge Hamilton Considers Antitrust Dismissal Bid ZUMIEZ INC: Securities Suit in Wash. Dismissed in March 2009 ZUMIEZ INC: Settles Former Employee's Unpaid Overtime Wages Suit ZUMIEZ INC: "Berg" Lawsuit Over Unpaid Overtime Wages Pending New Securities Fraud Cases HURON CONSULTING: Barroway Topaz Files Complaint in N.D. Ill. ********* APARTHEID REPARATIONS: South African Govt. Will Support Lawsuit --------------------------------------------------------------- Independent Online reports that the South African government has overturned a decision made under ex-president Thabo Mbeki not to support class action for apartheid reparations from eight US- based companies, Business Report said on Thursday. Justice Minister Jeff Radebe has written a letter to the presiding judge in Khulumani v. Barclays National Bank Ltd., et al, MDL No. 02-md-1499 (S.D.N.Y.), to announce that President Jacob Zuma's government would support the lawsuit brought by Khulumani Support Group. This was in contrast with a letter written by his predecessor, Penuell Maduna, to the court in July 2003, which said the state would oppose Khulumani's action because it would "discourage much-needed foreign investment". Justice Radebe said the government would like to resolve the matter outside the courts. The companies being sued by Khulumani and 13 individuals that did business in South Africa during the apartheid era are: -- Barclays, -- Daimler, -- Ford, -- Fujitsu, -- General Motors, -- IBM, -- Rheinmetall and -- UBS. These conglomerates stand accused of aiding and abetting apartheid acts by doing business with the apartheid government. Khulumani welcomed the government's new decision. "This represents a very significant shift from the government's 2003 position that (it) is not and will not be party to litigation' against companies that did business with and in South Africa during the apartheid period," Khulumani said. Khulumani Support Group maintains a Web site at: http://www.khulumani.net/ BANK OF AMERICA: Faces Police & Fire Retirement System's Lawsuit ---------------------------------------------------------------- A putative class action complaint, entitled Police & Fire Retirement System of the City of Detroit v. IndyMac MBS, Inc., et al., is pending. On May 14, 2009, Bank of America Corporation, Countrywide Securities Corporation, IndyMac MBS, IndyMac ABS, and other underwriters and individuals, were named as defendants in the complaint filed in the U.S. District Court for the Southern District of New York. The allegations, claims, and remedies sought in the case are substantially similar to those in the IBEW Local 103 case, which was removed to the U.S. District Court for the Central District of California. No further details on the case were provided in the company's Aug. 7, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Bank of America Corporation -- http://www.bankofamerica.com/-- is a bank holding company and a financial holding company. Through its banking subsidiaries and various non-banking subsidiaries throughout the United States and in selected international markets, it provides a diversified range of banking and non-banking financial services and products through three business segments: Global Consumer and Small Business Banking, Global Corporate and Investment Banking and Global Wealth and Investment Management. Bank of America operates in 50 states, the District of Columbia and more than 40 foreign countries. Bank of America has 6,100 banking centers, approximately 18,700 automated teller machines (ATMs), nationwide call centers, and online and mobile banking platforms. BANK OF AMERICA: Faces Suit by Wyoming State Treasurer in N.Y. -------------------------------------------------------------- Bank of America Corporation and other underwriters and individuals are named as defendants in a putative class action complaint filed on June 29, 2009, in the U.S. District Court for the Southern District of New York. The complaint is Wyoming State Treasurer, et al. v. John Olinski, et al. The allegations, claims, and remedies sought in the case are substantially similar to those in the IBEW Local 103 case, which was removed to the U.S. District Court for the Central District of California. The company did not disclose further details on the case in its Aug. 7, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Bank of America Corporation -- http://www.bankofamerica.com/-- is a bank holding company and a financial holding company. Through its banking subsidiaries and various non-banking subsidiaries throughout the United States and in selected international markets, it provides a diversified range of banking and non-banking financial services and products through three business segments: Global Consumer and Small Business Banking, Global Corporate and Investment Banking and Global Wealth and Investment Management. Bank of America operates in 50 states, the District of Columbia and more than 40 foreign countries. Bank of America has 6,100 banking centers, approximately 18,700 automated teller machines (ATMs), nationwide call centers, and online and mobile banking platforms. BANKWEST: Commercial Loan Customers Mulling Class Action Lawsuit ---------------------------------------------------------------- Alison Bell at The Sydney Morning Herald reports that BankWest may face a class action lawsuit by commercial loan customers angry over changes that the Commonwealth Bank of Australia subsidiary made to their lending facilities last year. Property industry participant Guy Goldrick said on Thursday that he had received a "huge" number of responses to his advertisement in The Australian Financial Review last week asking BankWest's commercial customers that had loans called up in the past 12 months to contact him. "The responses so far have hugely exceeded my expectations," Mr. Goldrick told AAP. Mr. Goldrick said the aggrieved customers had loans from $2 million to "well above" $50 million and were involved in the construction, property development and wider commercial sectors. Mr. Goldrick said he was in discussions with several legal firms and had sourced a funder for the proposed class action but declined to comment on their identity. He also declined to discuss the substance of the allegations. Ms. Bell's full report is available at http://is.gd/2Q2Ls BROCADE COMMS: Appeal of Junked Calif. Amended Complaint Pending ---------------------------------------------------------------- The plaintiffs' appeal of the dismissal of their second amended class-action complaint against Brocade Communications Systems, Inc. remains pending, according to the company's Aug. 31, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 1, 2009. On Oct. 23, 2007, a class-action complaint was filed against Brocade and certain of its former officers and current and former directors. This action was filed in the California Superior Court in Santa Clara County on behalf of individuals who owned Brocade stock between Feb. 21, 2001 and May 16, 2005. The complaint generally alleges that Brocade and the individual defendants breached the duty of disclosure by failing to disclose alleged wrongful conduct, including conduct complained of in the securities litigation, and seeks unspecified monetary damages and other relief against the defendants. On Nov. 26, 2007, this action was removed from State Court to the U.S. District Court for the Northern District of California. On Dec. 3, 2007, Brocade filed a motion to dismiss the action in its entirety on the ground that it is preempted by the Securities Litigation Uniform Standards Act of 1998. On March 6, 2008, Brocade's motion to dismiss was denied and the case was remanded to State Court. On May 29, 2008, Brocade filed a demurrer to the complaint. On July 10, 2008, plaintiffs filed an amended complaint and Brocade filed a demurrer to the amended complaint on Aug. 4, 2008. On Sept. 12, 2008, Brocade's demurrer was granted and the amended complaint was dismissed with leave to amend. On Oct. 15, 2008, plaintiffs filed a second amended complaint. The second amended complaint generally alleges that Brocade and the individual defendants violated or conspired to violate the Racketeering Influenced and Corrupt Organizations Act and seeks unspecified monetary damages and other relief against the defendants. Brocade filed a motion to dismiss the second amended complaint on Nov. 17, 2008. On Jan. 30, 2009, the Court granted Brocade's motion and, on March 3, 2009, the Court dismissed the complaint with prejudice. On May 14, 2009, Plaintiffs filed a notice of appeal. Brocade Communications Systems, Inc. -- http://www.brocade.com/ -- is a supplier of data center networking solutions that help enterprises connect and manage their information. The company offers a line of data center networking hardware, software products and services. The company is organized in four operating units: The Data Center Infrastructure (DCI), The Server Edge and Storage (SES), The Services, Support and Solutions (S3) and The Files (Files). Brocade products and services are marketed, sold to end-user customers through distribution partners, including original equipment manufacturers (OEMs), distributors, systems integrators, value- added resellers (VARs) and by Brocade directly. CACHE INC: Settlement Gives Retail Customers $15 Vouchers --------------------------------------------------------- A settlement's been proposed in Abiva, et al. v. Cache, Inc., et al., Case No. 07-cv-00556 (C.D. Calif.). The lawsuit generally alleges that Cache violated certain requirements imposed by the Fair and Accurate Credit Transactions Act. Specifically Plaintiffs claim that Cache printed the account numbers of its customers' credit or debit cards on receipts presented to them at a Cache store, in violation of FACTA. Cache has agreed to provide each eligible customer who purchased items at a Cache store from December 4, 2006, to April 21, 2009, a $15.00 voucher to be used for the purchase of goods or merchandise at any Cache retail outlet or on Cache's Web site. An eligible customer (and class member) is anyone provided a receipt at Cache stores which printed the expiration date or more than five digits of the credit or debit card number. CPT Group, the Claims Administrator, has set up a Web site at http://www.cachesettlement.com/to share information about the litigation and the claims process. The Plaintiff Class is represented by: J. Mark Moore, Esq. SPIRO MOSS LLP 11377 W. Olympic Boulevard, Fifth Floor Los Angeles, CA 90064 Telephone (310) 235-2468 - and - Jonathan Shub, Esq. SEEGER WEISS LLP 1515 Market Street, Suite 1380 Philadelphia, PA 19102 Telephone (215) 564-2300 Cache Inc. is represented by: Robert A. Weikert, Esq. NIXON PEABODY LLP One Embarcadero Center, Suite 1800 San Francisco, CA 94111 Telephone (415) 984-8200 COLONIAL BANCGROUP: Keller Rohrback Files ERISA Suit in M.D. Ala. ----------------------------------------------------------------- Keller Rohrback L.L.P. filed an ERISA class action complaint initiating McKay v. The Colonial Bancgroup, Inc., et al., Case No. 09-cv-00806 (M.D. Ala.), on behalf a class of all persons who were participants in or beneficiaries of The Colonial BancGroup 401(k) Plan, between April 18, 2007, and the present and whose accounts included investments in The Colonial BancGroup, Inc. (PinkSheets: CBCGQ) common stock. The complaint alleges that during the Class Period, Defendants breached their fiduciary duties to Plaintiff and the Class by: (1) failing to prudently and loyally manage the Plan's assets; (2) failing to monitor fiduciaries; (3) failing to provide complete and accurate communications to the Plan's participants and beneficiaries; and (4) knowingly participating in or enabling another fiduciary's breaches. If you are a participant in The Colonial BancGroup, Inc. 401(k) Plan and held Colonial common stock in the Plan during the Class Period and you would like information regarding this matter, you may contact paralegal Jennifer Tuato'o or attorneys Sarah Kimberly, Esq., Erin Riley, Esq., Derek Loeser, Esq., or Lynn Sarko, Esq., toll free at (800) 776-6044, or via e-mail at investor@kellerrohrback.com. You may also visit the Firm's Web site at http://www.erisafraud.com/for additional information. Keller Rohrback is one of America's leading law firms handling ERISA retirement plan litigation. We are committed to helping employees and retirees protect their retirement savings. Keller Rohrback serves or has served as lead and co-lead counsel in numerous ERISA class action cases, including cases against Enron, WorldCom, and HealthSouth. Keller Rohrback has successfully provided class action representation for over a decade. Its trial lawyers have obtained judgments and settlements on behalf of clients in excess of seven billion dollars. FAIRFAX FINANCIAL: Amended Consolidated Securities Suit Pending --------------------------------------------------------------- The claims in an amended and consolidated class action complaint against Fairfax Financial Holdings Limited are at a preliminary stage. During 2006, several lawsuits seeking class action status were filed against Fairfax and certain of the company's officers and directors in the U.S. District Court for the Southern District of New York. The Court made an order consolidating the various pending lawsuits and granted the single remaining motion for appointment as lead plaintiffs. The Court also issued orders approving scheduling stipulations filed by the parties to the consolidated lawsuit. On Feb. 8, 2007, the lead plaintiffs filed an amended consolidated complaint, which states that the lead plaintiffs seek to represent a class of all purchasers and acquirers of securities of Fairfax between May 21, 2003 and March 22, 2006 inclusive. The amended consolidated complaint names as defendants Fairfax, certain of the company's officers and directors, OdysseyRe and its auditors. The amended consolidated complaint alleges that the defendants violated U.S. federal securities laws by making material misstatements or failing to disclose certain material information regarding, among other things, Fairfax's and OdysseyRe's assets, earnings, losses, financial condition, and internal financial controls. The amended consolidated complaint seeks, among other things, certification of the putative class; unspecified compensatory damages (including interest); unspecified monetary restitution; unspecified extraordinary, equitable and/or injunctive relief; and costs (including reasonable attorneys' fees). Pursuant to the scheduling stipulations, the various defendants filed their respective motions to dismiss the amended consolidated complaint, the lead plaintiffs filed their oppositions thereto, the defendants filed their replies to those oppositions and the motions to dismiss were argued before the Court in December 2007. The Court has not yet issued a ruling on these motions, according to the company's Form F-10 Registration Statement filing with the U.S. Securities and Exchange Commission dated Aug. 31, 2009. Fairfax Financial Holdings Limited -- http://www.fairfax.ca/-- is a financial services holding company which, through its subsidiaries, is engaged in property and casualty insurance and reinsurance and investment management. HARRIS CORP: Defends Norfolk County's Federal Securities Action --------------------------------------------------------------- Harris Corporation's former subsidiary, Harris Stratex Networks, Inc., intends to defend Norfolk County Retirement System's federal securities class action complaint, according to the company's Aug. 31, 2009 Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended July 3, 2009. HSTX and certain of its current and former officers and directors, including certain current Harris officers, were named as defendants in a federal securities class action complaint filed on Sept. 15, 2008, in the U.S. District Court for the District of Delaware by plaintiff Norfolk County Retirement System on behalf of an alleged class of purchasers of HSTX securities from Jan. 29, 2007, to July 30, 2008, including shareholders of Stratex Networks, Inc. who exchanged shares of Stratex for shares of HSTX as part of the combination between Stratex and the company's former Microwave Communications Division to form HSTX. Similar complaints were filed in the U.S. District Court for the District of Delaware on Oct. 6, 2008, and October 30, 2008. The complaints were consolidated in a slightly expanded complaint filed on July 29, 2009 that adds Harris Corporation and Ernst & Young LLP as defendants. This action relates to public disclosures made by HSTX on Jan. 30, 2007, and July 30, 2008, which included the restatement of HSTX's financial statements for the first three fiscal quarters of its fiscal 2008 (the quarters ended March 28, 2008, Dec. 28, 2007 and Sept. 28, 2007) and for its fiscal years ended June 29, 2007, June 30, 2006 and July 1, 2005 due to accounting errors. The consolidated complaint alleges violations of Section 10(b) and Section 20(a) of the Exchange Act and of Rule 10b-5 promulgated thereunder, as well as violations of Section 11 and Section 15 of the Securities Act, and seeks, among other relief, determinations that the action is a proper class action, unspecified compensatory damages and reasonable attorneys' fees and costs. Harris Corporation -- http://www.harris.com/-- together with its subsidiaries, is an international communications and information technology (IT) company serving government and commercial markets in more than 150 countries. The company is focused on developing assured communications products, systems and services for global markets, including radio frequency (RF) communications, government communications and broadcast communications. The company is organized in three segments: RF Communications segment, Government Communications Systems segment and Broadcast Communications segment. HEALTH INSURERS: Maldonado Medical Sues Insurers for Underpaying ---------------------------------------------------------------- Maldonado Medical, a Durable Medical Equipment provider servicing the southwestern United States, in continuing its commitment to physicians, patients and the organized medical community, has joined the American Medical Association and other physician associations from several states in filing a nationwide consolidated class action lawsuit. This lawsuit is against the following health insurers: Aetna Inc., Cigna Corp. and other co- conspirators such as Wellpoint, Inc., Oxford Health Plans, Health Net, Inc., and The Health Insurance Association of America over the use of a 'rigged' database used to underpay physicians, providers and patients for more than a decade. This nationwide class action is brought on behalf of physicians, subscribers, DME providers and other non-physician providers, as well as the American Medical Association and several state medical associations, including the Medical Society of New Jersey, the Medical Society of the State of New York, the California Medical Society, the Connecticut State Medical Society, the Texas Medical Association, and the North Carolina Medical Society. These organized medical communities have been forced to absorb as much as 28% reduction of the costs of treatments and services provided based on the Usual, Customary and Reasonable (UCR) allowable rates. This in turn diminishes the necessary resources to run their health care practices and stands in the way of the patient-physician relationship. "Being a Plaintiff in this suit is unprecedented in the Durable Medical Equipment industry," states Brandon Maxon Maldonado, whom along with his brother Gregory Maxon Maldonado, own and operate Maldonado Medical. In an ongoing effort to increase reimbursement rates for physicians, Maldonado Medical is helping to spearhead efforts to keep physicians from being systematically trampled into submission and forced to accept the health insurance industry's "Out of Network" UCR reimbursement rates. Maldonado Medical has also been fighting other types of health insurers' fraudulent claims practices since 2003. "We can no longer ignore the improper business practices of health insurers who decide to play by their own rules without any regard to patients, or the legitimate costs required to care for them," said AMA President Nancy H. Nielsen, M.D. "We have evidence that multiple health insurance companies have attempted to put us out of business but we have taken a stand, both for the rights of our patients and physicians, as well as our own", says Brandon Maxon Maldonado. With health insurance reform in the forefront of the American political landscape, health insurance companies have spent millions of dollars trying to convince people that patient care is of the utmost importance. The real fact is that the health insurance industry continues to earn billions of dollars and record profits at the expense of its physicians and patients. According to New York Attorney General Andrew Cuomo, health insurance companies have been able to defraud physician's reimbursements by up to 28% nationwide. "This class action is about a secret and intentionally concealed agreement among health insurers to depress reimbursements, thereby raising the cost of reimbursed health care services for consumers and providers." (As outlined in the consolidated class action filed on July 1, 2009 in US State District Court, District of New Jersey.) When plaintiffs such as Maldonado Medical bring class action lawsuits, they are often taking on the wealthiest corporations in the world. These corporations will allocate massive amounts of their resources into the effort to prevent any recovery or meaningful change in practices. The Maldonado Medical legal team is also exploring options to participate in various other class action lawsuits. Examples of other lawsuits may include the practice of using post-payment audit processes to place pressure on providers. The insurer's intention is to claim that the providers have been overpaid in the past for services that are not deemed to be covered under its health care policies for various reasons. This includes stating that the services are purportedly experimental and/or investigational. They feel this will intimidate physicians into not using "Out of Network" benefits that patients have paid substantial amounts for. "Health Insurance companies consistently invalidate acceptable medical procedures thus making the patient responsible for their health care costs," states Gregory Maxon Maldonado. "In making demands like this, health insurance companies fail to provide even minimal due process, which is required under the Employee Retirement Income Security Act (ERISA), before health insurance companies can make any unfavorable health benefit determinations. These health insurance companies continue to violate the legal rights of physicians, non-physician providers and the premium paying patients." "We are involved in this historic class action lawsuit to assist physicians and patients in defending themselves. We have expended enormous resources to create a proprietary database of thousands of violations of ERISA and to create transparency in this corrupt system of reimbursement schedules with the intent to change the system in making it more fair for doctors and patients," says Brandon Maxon Maldonado. On June 15, 2009, in the face of overwhelming accusation and historical precedence, a federal judge ordered the Aetna class action case to a preliminary settlement conference. It is at this conference where Maldonado Medical, along with the American Medical Association and associated plaintiffs, will attempt to reform "Out of Network" reimbursement procedures and provide physicians, non-physician providers and subscribers the recompense that is long overdue from these fraudulent and conspiratorial acts. For more information, see http://www.Maldonado-Medical.com/ HEALTHWAYS: Discovery Ongoing in Consolidated Securities Suit ------------------------------------------------------------- Discovery is ongoing in a consolidated amended complaint filed on behalf of a class of investors who purchased Healthways, Inc. stock between July 5, 2007 and Aug. 25, 2008. Beginning on June 5, 2008, the Company and certain of its present and former officers and/or directors were named as defendants in two putative securities class actions filed in the U.S. District Court for the Middle District of Tennessee. On Aug. 8, 2008, the court ordered the consolidation of the two related cases, appointed lead plaintiff and lead plaintiff's counsel, and granted lead plaintiff leave to file a consolidated amended complaint. The amended complaint, filed on Sept. 22, 2008, alleges that the Company and the individual defendants violated Sections 10(b) of the Securities Exchange Act of 1934 and that the individual defendants violated Section 20(a) of the Act as "control persons" of Healthways. The amended complaint further alleges that certain of the individual defendants also violated Section 20A of the Act based on their stock sales. The plaintiff purports to bring these claims for unspecified monetary damages on behalf of a class of investors who purchased Healthways stock between July 5, 2007 and Aug. 25, 2008. In support of these claims, plaintiff alleges generally that, during the proposed class period, the Company made misleading statements and omitted material information regarding: -- the purported loss or restructuring of certain contracts with customers, -- the Company's participation in the Medicare Health Support pilot program for the Centers for Medicare & Medicaid Services, and -- the Company's guidance for fiscal year 2008. Defendants filed a motion to dismiss the amended complaint on Nov. 12, 2008. On March 9, 2009, the Court denied the defendants' motion to dismiss. The parties have exchanged discovery requests, and the discovery phase of the lawsuit is presently underway, according to the company's Aug. 7, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Healthways, Inc. -- http://www.healthways.com/-- provides specialized, Health and Care Support solutions to help people maintain or improve their health, and as a result, reduce overall healthcare costs. The company delivers its programs to customers, which include health plans, governments, employers, and hospitals, in all 50 states, the District of Columbia, Puerto Rico, and Guam. Its programs focus on prevention, education, physical fitness, health coaching, behavior change and evidence-based medicine to drive adherence to proven standards of care, medications and physicians' plans of care. HEALTHWAYS INC: Motion to Dismiss ERISA Breach Lawsuit Pending -------------------------------------------------------------- A motion to dismiss for failure to prosecute a purported class- action lawsuit against Healthways, Inc. and certain of its directors and officers alleging violations of the Employee Retirement Income Security Act is pending. On July 31, 2008, the purported class-action suit was filed in the U.S. District Court for the Middle District of Tennessee against Healthways and certain of its directors and officers alleging breaches of fiduciary duties to participants in the Company's 401(k) plan. The central allegation is that Company stock was an imprudent investment option for the 401(k) plan. The named defendants are: the Company, Board of Directors, certain officers, and members of the Investment Committee charged with administering the 401(k) plan. The complaint was amended on Sept. 29, 2008. The amended complaint alleges that the defendants violated ERISA by failing to remove the Company stock fund from the 401(k) plan when it allegedly became an imprudent investment, by failing to disclose adequately the risks and results of the Medicare Health Support (MHS) pilot program to 401(k) plan participants, and by failing to seek independent advice as to whether to continue to permit the plan to hold Company stock. It further alleges that the Company and its directors should have been more closely monitoring the Investment Committee and other plan fiduciaries. The amended complaint seeks damages in an undisclosed amount and other equitable relief. Defendants filed a motion to dismiss on Oct. 29, 2008. On Jan. 28, 2009, the Court granted the defendants' motion to dismiss the plaintiff's claims for breach of the duty to disclose with regard to any non-public information and information beyond the specific disclosure requirements of ERISA and denied Defendants' motion to dismiss as to the remainder of the plaintiff's claims. A period of discovery ensued. On May 12, 2009, the plaintiff filed a motion for class certification. After the plaintiff did not appear for his scheduled deposition, the Court issued an Order on July 10, 2009, warning the plaintiff that his failure to participate in the lawsuit could result in sanctions, including but not limited to dismissal. After the plaintiff's failure to participate continued, on July 23, 2009, the defendants filed a motion to dismiss for failure to prosecute the action, according to the company's Aug. 7, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Healthways, Inc. -- http://www.healthways.com/-- provides specialized, Health and Care Support solutions to help people maintain or improve their health, and as a result, reduce overall healthcare costs. The company delivers its programs to customers, which include health plans, governments, employers, and hospitals, in all 50 states, the District of Columbia, Puerto Rico, and Guam. Its programs focus on prevention, education, physical fitness, health coaching, behavior change and evidence-based medicine to drive adherence to proven standards of care, medications and physicians' plans of care. MARSH & MCLENNAN: Appeal to Approved Deal in N.J. Suit Pending -------------------------------------------------------------------- The U.S. District Court for the District of New Jersey's approval of the settlement of a consolidated putative class action against Marsh & McLennan Cos., Inc. is being appealed. Various putative class actions that were consolidated into two actions in New Jersey included claims against MMC, its subsidiary, Marsh Inc., and certain Marsh subsidiaries. One of the actions was filed on behalf of a purported class of "commercial" policyholders and the second on behalf of a purported class of "employee benefit" policyholders. In February 2009, the trial court approved a settlement of the claims against MMC, Marsh and certain Marsh subsidiaries in both actions, according to the company's Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Marsh & McLennan Cos., Inc. -- http://www.mmc.com/-- is a global professional services firm providing advice and solutions in the areas of risk, strategy and human capital. It is the parent company of a number of risk experts and specialty consultants, including Marsh Inc., the insurance broker, intermediary and risk advisor; Guy Carpenter & Co., the risk and reinsurance specialist; Kroll Inc., the risk consulting firm; Mercer, the provider of human resources and related financial advice and services; and Oliver Wyman Group, the management consultancy. MMC provides analysis, advice and transactional capabilities to clients in more than 100 countries. MMC conducts business through three operating segments: Risk and Insurance Services, Consulting and Risk Consulting and Technology. MARSH & MCLENNAN: Continues to Face Lawsuits by Policyholders ------------------------------------------------------------- Marsh & McLennan Cos., Inc., continues to face putative class actions by policyholders relating to a civil complaint filed by the New York State Attorney General. Among other things, the NYAG Lawsuit alleged that Marsh's use of market service agreements with various insurance companies entailed fraudulent business practices, bid-rigging, illegal restraint of trade and other statutory violations. Fifteen actions instituted by individual policyholders and others are pending in federal and state courts relating to matters alleged in the NYAG Lawsuit. Two putative class or representative actions on behalf of policyholders are pending in state courts, and one putative class action is pending in Canada. No further details were provided in the company's Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Marsh & McLennan Cos., Inc. -- http://www.mmc.com/-- is a global professional services firm providing advice and solutions in the areas of risk, strategy and human capital. It is the parent company of a number of risk experts and specialty consultants, including Marsh Inc., the insurance broker, intermediary and risk advisor; Guy Carpenter & Co., the risk and reinsurance specialist; Kroll Inc., the risk consulting firm; Mercer, the provider of human resources and related financial advice and services; and Oliver Wyman Group, the management consultancy. MMC provides analysis, advice and transactional capabilities to clients in more than 100 countries. MMC conducts business through three operating segments: Risk and Insurance Services, Consulting and Risk Consulting and Technology. MARSH & MCLENNAN: Discovery in Securities Suit Ongoing in N.Y. -------------------------------------------------------------- Discovery in a purported securities class action against Marsh & McLennan Cos., Inc., and its subsidiary, Marsh Inc., and certain of their former officers is ongoing in the U.S. District Court for the Southern District of New York. Plaintiffs make factual allegations similar to those asserted in the New York Attorney General's lawsuit, including that MMC artificially inflated its share price by making misrepresentations and omissions relating to Marsh's market service agreements and business practices. Plaintiffs also allege that MMC failed to disclose alleged anti- competitive and illegal practices at Marsh, such as "bid-rigging" and soliciting fictitious quotes. Plaintiffs allege violations of Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and Section 11 of the Securities Act of 1933 and seek unspecified damages. Trial is scheduled for early 2010, according to the company's Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Marsh & McLennan Cos., Inc. -- http://www.mmc.com/-- is a global professional services firm providing advice and solutions in the areas of risk, strategy and human capital. It is the parent company of a number of risk experts and specialty consultants, including Marsh Inc., the insurance broker, intermediary and risk advisor; Guy Carpenter & Co., the risk and reinsurance specialist; Kroll Inc., the risk consulting firm; Mercer, the provider of human resources and related financial advice and services; and Oliver Wyman Group, the management consultancy. MMC provides analysis, advice and transactional capabilities to clients in more than 100 countries. MMC conducts business through three operating segments: Risk and Insurance Services, Consulting and Risk Consulting and Technology. MARSH & MCLENNAN: Discovery Ongoing in New York ERISA Lawsuit ------------------------------------------------------------- Discovery is underway in the purported class action against Marsh & McLennan Cos., Inc., alleging the Employee Retirement Income Security Act violations. A purported ERISA class action is pending against MMC and various current and former employees, officers and directors in the U.S. District Court for the Southern District of New York on behalf of participants and beneficiaries of an MMC retirement plan. The complaint alleges, among other things, that in light of the alleged misconduct described in the New York Attorney General's lawsuit, the defendants knew or should have known that the investment of the plan's assets in MMC stock was imprudent, that certain defendants failed to provide plan participants with complete and accurate information about MMC stock, that certain defendants responsible for selecting, removing and monitoring other fiduciaries did not comply with ERISA, and that MMC knowingly participated in other defendants' breaches of fiduciary duties. The complaint seeks, among other things, unspecified compensatory damages, injunctive relief and attorneys' fees and costs. Trial is scheduled for early 2010, according to the company's Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Marsh & McLennan Cos., Inc. -- http://www.mmc.com/-- is a global professional services firm providing advice and solutions in the areas of risk, strategy and human capital. It is the parent company of a number of risk experts and specialty consultants, including Marsh Inc., the insurance broker, intermediary and risk advisor; Guy Carpenter & Co., the risk and reinsurance specialist; Kroll Inc., the risk consulting firm; Mercer, the provider of human resources and related financial advice and services; and Oliver Wyman Group, the management consultancy. MMC provides analysis, advice and transactional capabilities to clients in more than 100 countries. MMC conducts business through three operating segments: Risk and Insurance Services, Consulting and Risk Consulting and Technology. MARSH & MCLENNAN: Derivative Claims Over Putnam Funds Pending ---------------------------------------------------------------- A putative class action purporting to assert derivative claims on behalf of all Putnam LLC mutual funds remains ongoing, according to Marsh & McLennan Cos., Inc.'s Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Two putative class actions by investors in certain Putnam Funds are pending against Putnam. One action asserts claims under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, and Section 36(b) of the Investment Company Act of 1940. The other action purports to assert derivative claims on behalf of all Putnam Funds under Section 36(b) of the Investment Company Act. Both suits seek to recover unspecified damages allegedly suffered by the Putnam Funds and their investors as a result of purported market-timing and late trading activity in certain Putnam Funds. In December 2008 and April 2009, the court granted Putnam's motion for summary judgment in the action relating to securities claims, and the plaintiffs have filed an appeal. In the derivative action, the court denied Putnam's motion for summary judgment. On Aug. 3, 2007, Great-West Lifeco Inc. completed its purchase of Putnam Investments Trust. Under the terms of the stock purchase agreement with GWL, MMC agreed to indemnify GWL in the future with respect to certain Putnam-related litigation and regulatory matters. Marsh & McLennan Cos., Inc. -- http://www.mmc.com/-- is a global professional services firm providing advice and solutions in the areas of risk, strategy and human capital. It is the parent company of a number of risk experts and specialty consultants, including Marsh Inc., the insurance broker, intermediary and risk advisor; Guy Carpenter & Co., the risk and reinsurance specialist; Kroll Inc., the risk consulting firm; Mercer, the provider of human resources and related financial advice and services; and Oliver Wyman Group, the management consultancy. MMC provides analysis, advice and transactional capabilities to clients in more than 100 countries. MMC conducts business through three operating segments: Risk and Insurance Services, Consulting and Risk Consulting and Technology. MARSH & MCLENNAN: Continues to Face ERISA Lawsuits with Putnam -------------------------------------------------------------- Marsh & McLennan Cos., Inc., Putnam LLC and certain of their current and former officers, directors and employees remain defendants in purported Employee Retirement Income Security Act class actions. One class action was brought by participants in an MMC retirement plan and the other case was brought by participants in a Putnam retirement plan. The actions allege, among other things, that, in view of the market-timing that was allegedly allowed to occur at Putnam, the investment of the plans' funds in MMC stock and the Putnam Funds was imprudent and constituted a breach of fiduciary duties to plan participants. Both actions seek unspecified damages and equitable relief. Following a September 2006 dismissal of the action regarding the Putnam plan, the plaintiff appealed the decision to the Fourth Circuit Court of Appeals. In June 2008, the appellate court reversed the dismissal and remanded the case for further proceedings, according to the company's Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Marsh & McLennan Cos., Inc. -- http://www.mmc.com/-- is a global professional services firm providing advice and solutions in the areas of risk, strategy and human capital. It is the parent company of a number of risk experts and specialty consultants, including Marsh Inc., the insurance broker, intermediary and risk advisor; Guy Carpenter & Co., the risk and reinsurance specialist; Kroll Inc., the risk consulting firm; Mercer, the provider of human resources and related financial advice and services; and Oliver Wyman Group, the management consultancy. MMC provides analysis, advice and transactional capabilities to clients in more than 100 countries. MMC conducts business through three operating segments: Risk and Insurance Services, Consulting and Risk Consulting and Technology. MERRILL LYNCH: Faces Funeral Directors' Suit to Void Ill. Order ---------------------------------------------------------------------- A purported class action, Fred C. Dames Funeral Homes, Inc., et al. v. Daniel W. Hynes, the Illinois Office of the Comptroller, et al., is pending, according to Merrill Lynch & Co. Inc.'s Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On July 7, 2009, the class action was filed in the Circuit Court of Cook County, Illinois on behalf of certain funeral directors. On May 18, 2009, the Illinois Department of Financial and Professional Regulation Division of Insurance and Merrill Lynch Life Agency, Inc. entered into a Stipulation and Consent Order by which MLLA agreed, among other things, to contribute $18 million to a Fund to benefit certain affected purchasers of pre-need funeral contracts and funeral directors. The plaintiffs are seeking to void the Consent Order in its entirety, and are asking for a declaratory judgment against the Illinois Comptroller, the Department, Merrill Lynch, Pierce, Fenner & Smith Incorporated, MLLA and Merrill Lynch Bank & Trust Co., FSB, that only certain terms of the Consent Order are unenforceable, an injunction against the Department and the Illinois Comptroller from taking further action, and recovery of attorneys' fees in pursuing the action. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: Pre-Need Contract Holders' Suit v. MLPF&S Pending ---------------------------------------------------------------- David Tipsword as Trustee of Mildred E. Tipsword Trust, individually and on behalf of all others similarly situated v. I.F.D.A. Services Inc., et al., is pending, according to Merrill Lynch & Co. Inc.'s Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. On June 16, 2009, the purported class action on behalf of a proposed class of pre-need contract holders was filed in the U.S. District Court for the Southern District of Illinois against Merrill Lynch, Pierce, Fenner & Smith Incorporated, among other defendants. The complaint alleges that MLPF&S breached purported fiduciary duties and committed negligence. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. MERRILL LYNCH: MLPF&S Faces Clancy-Gernon Funeral Home's Lawsuit ---------------------------------------------------------------- A purported class action on behalf of a proposed class of funeral directors filed on June 30, 2009, is pending against Merrill Lynch & Co. Inc. entities. The action, Clancy-Gernon Funeral Home, Inc., et al. v. MLPF&S, et al., was filed in the Circuit Court of Cook County, Illinois, alleging that Merrill Lynch, Pierce, Fenner & Smith Incorporated, Merrill Lynch Life Agency, Inc., among other defendants, committed consumer fraud, civil conspiracy, unjust enrichment, and conversion. In each of these lawsuits, plaintiffs seek unspecified compensatory and punitive damages, among other relief, according to the company's Aug. 7, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. Merrill Lynch & Co. Inc., together with its subsidiaries, provide investment, financing, insurance, and related services to individuals and institutions on a global basis through its broker, dealer, banking and other financial services subsidiaries. METLIFE: Lawyers-As-Witnesses Problem Might Disqualify Debevoise ---------------------------------------------------------------- Last week, Daniel Wise at the New York Law Journal reports, the Honorable Thomas C. Platt entered a single-sentence order disqualifying Debevoise & Plimpton as counsel for MetLife in the $8 billion class action proceeding entitled In re MetLife Demutualization, Case No. 00-cv-2258 (E.D.N.Y.). MetLife ran to the U.S. Court of Appeals for the Second Circuit without delay. The Second Circuit directed expedited briefing, with MetLife's reply brief due by 3:00 p.m. on Monday, Sept. 14. Jury selection was scheduled to start tomorrow in the District Court. The trail won't start until the disqualification issue is resolved. In disqualifying Debevoise, Judge Platt agreed with the class' arguments that the firm had an impermissible dual representation because it was counsel to MetLife and the policyholders prior to the conversion, but afterwards, when the two became adversaries, it continued to represent MetLife. The class also contended that disqualification was required because the class had listed four Debevoise lawyers, three of whom had worked on the conversion litigation, as possible witnesses. Debevoise has been MetLife's counsel for more than nine years. Teresa Wynn Rosenborough, Esq., Senior Chief Litigation Counsel at MetLife, says there is "no likelihood" that any of the potential Debevoise witnesses would deliver testimony damaging to MetLife, but if the lawyers were "compromised" during trial, the problem could be "dealt with then." The policyholder class, represented by Jared B. Stamell, Esq., at Stamell & Schager, claims that policyholders were damaged by the prospectus that Debevoise prepared to solicit their votes in favor of the conversion. The class contends that the prospectus fraudulently omitted information that would have made it clear that the policyholders would lose more than they would gain in the conversion. Mr. Wise's full story is available at http://is.gd/2S5bv NBTY INC: Suit by Calif. Nutrition Bars Consumers Remain Stayed --------------------------------------------------------------- The class-action lawsuit filed by various California consumers against NBTY, Inc.'s subsidiary, Rexall Sundown, Inc. and certain of its subsidiaries remains stayed. Rexall, and certain of its subsidiaries are defendants in the class-action lawsuit brought in 2002, on behalf of all California consumers who bought various nutrition bars. The plaintiffs allege misbranding of nutrition bars and violations of California unfair competition statutes, misleading advertising and other similar causes of action. They seek restitution, legal fees and injunctive relief. In December 2007, while Rexall's and the other defendants' renewed motion for judgment on the pleadings was pending, the Court again stayed the case for all purposes, pending rulings on other relevant cases before the California Supreme Court. The California Supreme Court issued a ruling in those other cases on Feb. 11, 2008. The parties to those other cases filed a petition for certiorari with the U.S. Supreme Court. That petition was denied on Jan. 12, 2009. In light of still more relevant cases pending before the California Supreme Court, all parties to this case have agreed that the stay should remain in place, according to the company's Aug. 7, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. NBTY, Inc. -- http://www.nbty.com/-- is a vertically integrated manufacturer, marketer and retailer of a line of nutritional supplements in the United States and throughout the world. The company markets approximately 25,000 products under numerous brands, including Nature's Bounty, Vitamin World, Pure Protein, Body Fortress, Puritan's Pride, Holland & Barrett, Rexall, Osteo Bi-Flex, Flex-A-Min, Knox, Sundown, MET-Rx, WORLDWIDE Sport Nutrition, American Health, DeTuinen, Le Naturiste, SISU, Solgar, Physiologics and Ester-C. The company's vertical integration includes the purchase of raw materials, formulation and manufacture of products, which it markets through the four channels of distribution: Wholesale/United States Nutrition, North American Retail, European Retail and Direct Response/E- Commerce. NBTY INC: False Advertising Suit v. MET-Rx in N.J. Still Stayed ---------------------------------------------------------------- A putative class-action lawsuit filed in New Jersey against NBTY, Inc.'s subsidiary, MET-Rx USA, Inc., remains stayed, according to the company's Aug. 7, 2009 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended June 30, 2009. In March 2004, a putative class-action lawsuit was filed in New Jersey against MET-Rx, claiming that the advertising and marketing of certain prohormone supplements were false and misleading and that plaintiff and the putative class of New Jersey purchasers of these products were entitled to damages and injunctive relief. Because these allegations are virtually identical to allegations made in a putative nationwide class-action previously filed in California, the company moved to dismiss or stay the New Jersey action pending the outcome of the California action. The motion was granted, and the New Jersey action is stayed at this time. The California action against Met-Rx had been dismissed in 2008. NBTY, Inc. -- http://www.nbty.com/-- is a vertically integrated manufacturer, marketer and retailer of a line of nutritional supplements in the United States and throughout the world. The company markets approximately 25,000 products under numerous brands, including Nature's Bounty, Vitamin World, Pure Protein, Body Fortress, Puritan's Pride, Holland & Barrett, Rexall, Osteo Bi-Flex, Flex-A-Min, Knox, Sundown, MET-Rx, WORLDWIDE Sport Nutrition, American Health, DeTuinen, Le Naturiste, SISU, Solgar, Physiologics and Ester-C. The company's vertical integration includes the purchase of raw materials, formulation and manufacture of products, which it markets through the four channels of distribution: Wholesale/United States Nutrition, North American Retail, European Retail and Direct Response/E- Commerce. NOVELL INC: Corporate Waste & Unjust Enrichment Alleged in Mass. ---------------------------------------------------------------- Courthouse News Service reports that directors of Novell, Inc., wasted corporate assets and unjustly enriched themselves with backdated stock options, shareholders claim in Kimmel, et al. v. Hovsepian, et al., File No. 09-3346 (Mass. Super. Ct., Middlesex Cty.). A copy of the complaint is available at: http://www.courthousenews.com/2009/09/03/SCANovell.pdf PERSHING LLC: Sued for Improper Public Access to Customer Data -------------------------------------------------------------- Pershing LLC and the Bank of New York Mellon's unsecured Web site gives the public easy access to customers' accounts and private information, the class action lawsuit captioned Zeldman v. Pershing LLC, et al., Case No. 09-cv-22609 (S.D. Fla.), claims, according to Courthouse News Service. A copy of the Complaint is available at: http://www.courthousenews.com/2009/09/03/Banks.pdf The Plaintiff is represented by: Paul J. Geller, Esq. Stuart A. Davidson, Esq. Cullin A. O'Brien, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 120 E. Palmetto Park Road, Suite 500 Boca Raton, FL 33433 Telephone: 561-750-3000 Fax: 561-750-3364 E-mail: pgeller@csgrr.com sdavidson@csgrr.com cobrien@csgrr.com - and - Samuel H. Rudman, Esq. Robert M. Rothman, Esq. Mark S. Reich, Esq. 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: 631-367-7100 Fax: 631-367-1173 - and - Stephen J. Calvacca, Esq. Law Offices of Calvacca Moran P.O. Box 1334 66 Frazar Road West Falmouth, MA 02574-1334 Telephone: 508-540-9911 PFIZER: Sued for Off-Label Use Misrepresentation in E.D. Pa. ------------------------------------------------------------ A federal class action lawsuit, Zafarana v. Pfizer, Inc., et al., Case No. 09-4026 (E.D. Pa.), claims Pfizer and Pharmacia & Upjohn fraudulently pushed prescription drugs, including Geodon, Zyvox, Lyrica, Aricept, Lipitor, Norvasc, Relpax, Viagra, Zithromax, Zoloft and Zyrtec. The class claims the companies pushed the drugs for off-label uses, misrepresented their safety and effectiveness, and paid doctors bribes and kickbacks for prescribing them. A copy of the complaint is available at: http://www.courthousenews.com/2009/09/03/PfizerPharmacia.pdf The Plaintiff is represented by: Donald E. Haviland, Jr., Esq. Robert G. Hughes, Esq. Michael P. Donohue, Esq. Michael J. Lorusso, Esq. THE HAVILAND LAW FIRM, LLP 111 S. Independence Mall East, Suite 1000 Philadelphia, PA 19106 ST. PAUL, MINN: 27 Arrested Protesters Sue City ----------------------------------------------- Tewnty-seven citizens arrested a year ago as they tried to protest outside the Republican National Convention at the Xcel Energy Center sued the City of St. Paul, Minn. The plaintiffs say the city had no probable cause to arrest them, and the police's use of chemicals and rubber bullets was excessive. A copy of the Complaint in Bernini, et al. v. City of St. Paul, et al., Case No. 09-cv-02312 (D. Minn.), is available at: http://www.courthousenews.com/2009/09/03/GOPRoundup.pdf The Plaintiffs are represented by: Robert J. Kolstad, Esq. 1005 W. Franklin Ave., Suite 3 Minneapolis, MN 55403 Telephone 612-721-3425 - and - R. Travis Snider, Esq. Snider Law Firm, Ltd. 1005 W. Franklin Ave., Suite 3 Minneapolis, MN 55403 Telephone 612-872-1200 - and - David L. Shulman, Esq. Law Office of David L. Shulman PLLC 1005 W. Franklin Ave., Suite 3 Minneapolis, MN 55403 Telephone 612-870-7410 TARGET CORP: 7th Cir. Rejects Pitch for Class Certification ----------------------------------------------------------- Courthouse News Service reports that a customer who settled her individual claim that Target sent her an unsolicited credit card lost her interest in a class action, the United States Court of Appeals for the Seventh Circuit ruled. The lower court refused to grant class status to Christine Muro's lawsuit against the retail giant. Ms. Muro then settled her claim that Target violated the Truth in Lending Act, but appealed the lower court's denial of class certification. "[W]e can discern no live, concrete controversy between Ms. Muro and Target that can justify permitting her to appeal the district court's determination with respect to the certification of the class," wrote the Seventh Circuit panel said. A copy of the Seventh Circuit's Opinion is available at: http://www.ca7.uscourts.gov/tmp/QK0OCDH2.pdf The appellate proceeding is Muro v. Target Corp., No. 08-1256 (7th Cir.). The lower court proceeding is Muro v. Target Corp., Case No. 04-cv-06267 (N.D. Ill.) (Pallmeyer, J.). TJX COS: Settles Computer Hacking-Related Lawsuit for $525,000 -------------------------------------------------------------- Vivek Shankar at Bloomberg News reports that TJX Cos. agreed to settle a class-action lawsuit that stemmed from the hacking of its computer systems, according to an e-mailed statement. Under the settlement, TJX said it paid $525,000, which primarily reimbursed the settling banks for a portion of their expenses, excluding attorneys' fees, incurred in pursuing the putative financial institutions class action, the Bloomberg reporter says. TOYOTA: Sued for Hiding & Destroying Corolla Safety Documents ------------------------------------------------------------- A RICO class action lawsuit, Basco, et al. v. Toyota Motor Corporation, et al., Case No. CV 09-06307 (C.D. Calif.), claims Toyota hid and destroyed documents about the roof strength of its Corolla, in a personal injury case, according to Courthouse News Service. A copy of the Complaint is available at: http://www.courthousenews.com/2009/09/03/Toyota.pdf The Plaintiff is represented by: Richard D. McCune, Esq. David C. Wright, Esq. McCune Wright LLP 2068 Orange Tree Lane, Suite 216 Redlands, CA 92374 Telephone (909) 557-1250 Fax (909) 557-1275 VIRGINIA: 4th Circuit Nixes Racial Profiling Case ------------------------------------------------- Nick McCann at Courthouse News Service reports that the U.S. Court of Appeals for the Fourth Circuit upheld the dismissal of a class action accusing police in Charlottesville, Va., of illegally seizing DNA evidence from black people who matched the description of a serial rapist. Larry Monroe said police officers violated his Fourth and 14th Amendment rights by questioning him in the 2002 investigation of a serial rapist. Officers allegedly stopped or questioned nearly 200 young black men over several years, looking for a match to the suspect, who was described as a "youthful-looking black male." Mr. Monroe said this violated his equal-protection rights, because police officers "do not perform such 'dragnet' stops of individuals when the victim describes an assailant as white." He also argued that an officer's request for a DNA sample constituted an illegal seizure. A federal judge in Virginia dismissed his equal-protection claims in 2007, ruling that the government does not exclusively classify people by race, and that the police based their investigation solely on victims' physical description of the suspect. The lower court also ruled that because Mr. Monroe had agreed to the DNA sample, it wasn't an illegal seizure. On appeal, Mr. Monroe argued that poor relations between police and minority communities made young men believe that the requests for DNA samples were mandatory. The Richmond-based appeals court upheld both the lower court's refusal to grant class-action status and its decision to dismiss the constitutional claims. Judge Beam cited the Supreme Court's rejection of a racial- profiling claim over the detention and questioning of thousands of young Arab-Muslim men following the Sept. 11, 2001, terrorist attacks. Because the attacks were carried about by people matching that specific description, the high court had reasoned, investigations "would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims." Likewise, the court concluded, Charlottesville police questioned Mr. Monroe and others in a "narrowly tailored" way based on victims' descriptions, which had an "incidental impact" on local black men. A report about class certification in the underlying lawsuit appeared in the Class Action Reporter on Friday, August 10, 2007. Representing the plaintiff are: Neal L. Walters, Esq. Scott & Kroner, PC P.O. Box 2737, Charlottesville, VA 22902-2737 Phone: 434-296-2161 Fax: 434-293-2073 E-mail: nwalters@scottkroner.com - and - Deborah Chasen Wyatt, Esq. Wyatt & Armstrong 300 Court Square Charlottesville, VA 22902-5160 Phone: 434-296-4130 Fax: 297-3083 E-mail: DWESQ@aol.com Representing the defendants is: Richard Hustis Milnor, Esq. Taylor Zunka Milnor & Carter, Ltd. 414 Park Street Charlottesville, VA 22902 Phone: 434-977-0191 Fax: 434-977-0198 E-mail: rmilnor@cstone.net The appellate proceeding is Monroe v. The City of Charlottesville, No. 08-1334 (4th Cir.). The proceeding before the trial court is Monroe v. The City of Charlottesville, Case No. 05-cv-00074 (W.D. Va.). A copy of the Fourth Circuit's Opinion is available at: http://pacer.ca4.uscourts.gov/opinion.pdf/081334.P.pdf VISTAPRINT NV: Pursues Dismissal of Consolidated Consumer Suit -------------------------------------------------------------- VistaPrint USA, Inc., pursues a motion to dismiss a consolidated purported class action complaint, according to VistaPrint,N.V.'s Aug. 31, 2009, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended June 30, 2009. Between July 29, 2008, and Sept. 11, 2008, a total of seven purported class action lawsuits were filed against VistaPrint USA, Inc., VistaPrint Corp. and/or Vistaprint Limited., and two third party merchants, in U.S. Federal District Court in six different states, asserting substantially identical claims alleging that the defendants violated certain Federal and state consumer protection laws in connection with the offer of membership discount programs on the company's Vistaprint.com website. The plaintiffs allege, among other things, that after ordering products on the company's Vistaprint.com website they were enrolled in certain membership discount programs and that monthly subscription fees for the programs were subsequently charged directly to their credit or debit cards, in each case purportedly without their knowledge or authorization. The plaintiffs are seeking recovery of an unspecified amount of damages, including statutory and punitive damages, together with interest and legal costs, and are also seeking to prevent us and the merchants from engaging in similar practices in the future. The seven purported class action lawsuits have been transferred to the U.S. District Court for the Southern District of Texas for coordinated pretrial proceedings. On April 17, 2009, VistaPrint USA filed a Motion to Dismiss the Consolidated Complaint, and on July 2, 2009 the Plaintiffs filed an Opposition to VistaPrint USA's Motion to Dismiss. Following that, on July 24, 2009, VistaPrint USA filed a reply brief in support of its Motion to Dismiss. VistaPrint, N.V. -- http://www.vistaprint.com-- is an online provider of coordinated portfolios of marketing products and services to small businesses globally. The company offers a range of products and services ranging from printed business cards, brochures and post cards to apparel, invitations and announcements, holiday cards, calendars, creative design services, copywriting services, direct mail services, promotional gifts, signage, Website design and hosting services, and e-mail marketing services. The company has automated and integrated the design and production process, from design conceptualization to product shipment and service delivery. WAL-MART STORES: Judge Hamilton Considers Antitrust Dismissal Bid ----------------------------------------------------------------- Maria Dinzeo at Courthouse News Service reports that the Honorable Phyllis J. Hamilton heard arguments last week in In re Online DVD Rental Antitrust litigation, MDL No. 2029; Master File No. 09-cv-02029 (N.D. Calif.), on Netflix and WalMart's request to dismiss an antitrust class action that claims they conspired to charge higher prices for Netflix's online DVD rental service, which led Blockbuster to raise its prices too. "The real question is whether you can prove that Blockbuster's response was connected to this alleged conspiracy," U.S. District Judge Phyllis Hamilton told class attorney Robert Abrams, Esq. Judge Hamilton said she was more concerned about the directness of the class's alleged injury, since she agreed that customers had been hurt by the higher prices. The class claims that before WalMart and Netflix colluded, they had been in a three-way price war with Blockbuster. Mr. Abrams said that sometime in January 2005, Netflix CEO Reed Hastings invited Wal-Mart.com CEO John Fleming to dinner, where they discussed their companies' DVD sales and rental businesses. "Our allegation is that this was when they began the conspiracy," Mr. Abrams said. Mr. Abrams claimed the companies agreed that Netflix would eschew DVD sales if WalMart would stay away from online DVD rentals. He pointed out that neither company dropped their prices after that meeting and that in June 2005, WalMart dropped out of the online DVD rental market entirely. In May 2005, Blockbuster announced that it would begin "testing" a price increase from $14.99 to $17.99 for a three-movie plan, which eventually became permanent. "This conspiracy is the material cause of Blockbuster's prices going up," Mr. Abrams said. "Wal-Mart dropping out is what allowed them to do it. They were a key competitor. Get them out and you're left with a market of only Netflix and Blockbuster." But defendants' attorney Jonathan Jacobson, Esq., claims the class does not have standing because they were only indirectly injured by what he called "a promotion agreement" between the companies. That agreement allowed WalMart DVD rental customers to switch to Netflix at the same subscription cost. "The plaintiffs' series of facts is plainly speculative and wrong," Mr. Jacobson said. Judge Hamilton said that whether the class has standing "is a tough question, just like with all these other antitrust cases you all keep bringing me. I'll have to wade through the case and figure out which direction it should go." Netflix, Inc., is represented by: Jonathan M. Jacobson, Esq. WILSON SONSINI GOODRICH & ROSATI 1301 Avenue of the Americas, 40th Floor New York, New York 10019 Telephone: (212) 999-5800 Fax: (212) 999-5899 E-mail: jjacobson@wsgr.com Wal-Mart is represented by: Neal S. Manne, Esq. SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Fax: (713) 654-6666 E-mail: nmanne@susmangodfrey.com ZUMIEZ INC: Securities Suit in Wash. Dismissed in March 2009 ------------------------------------------------------------ A putative class action complaint against Zumiez Inc. was dismissed in March 2009, according to the company's Aug. 28, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 1, 2009. On Dec. 10, 2007, the complaint was filed in the U.S. District Court for the Western District of Washington against the company and certain of its current and former directors and officers. The action was purported to be brought on behalf of a class of purchasers of the company's stock during the period March 14, 2007, to Jan. 4, 2008, and alleged that the defendants violated the federal securities laws during this period of time by, among other things, having made materially false or misleading statements and that the defendants engaged in insider trading. The defendants moved to dismiss all claims in October 2008. On March 30, 2009, the U.S. District Court for the Western District of Washington issued its ruling without oral argument, dismissing the case with prejudice. Zumiez Inc. -- http://www.zumiez.com/-- is a mall-based specialty retailer of action sports related apparel, footwear, equipment and accessories operating under the Zumiez brand name. As of Jan. 31, 2009, the company operated 343 stores primarily located in shopping malls, giving it a presence in 31 states. ZUMIEZ INC: Settles Former Employee's Unpaid Overtime Wages Suit ---------------------------------------------------------------- Zumiez Inc., on July 16, 2009, announced that the company had reached an agreement to settle a former employee's class action over unpaid overtime wages. On March 5, 2008, a former employee commenced an action against the company in California state court alleging that the company failed to pay all overtime wages owing to him and other employees in California, failed to provide meal breaks as required by California law, failed to provide employees with proper itemized wage statements (pay stubs) as required by California law, and failed to pay terminated employees waiting time penalties under California Labor Code section 203. The suit is Evan Johnson v. Zumiez, Inc., et al., Case No. RG08374968. According to the company's Aug. 28, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 1, 2009, the settlement agreement, which is subject to documentation and court approval, provides for a claims made settlement expected to cost the company approximately $1.3 million which includes settlement awards to class members, an incentive payment to the plaintiff, attorney's fees and costs, and claims administration costs. This accrued charge was recorded in selling, general and administrative expenses in the condensed consolidated statement of operations for the three months ended Aug. 1, 2009. Zumiez Inc. -- http://www.zumiez.com/-- is a mall-based specialty retailer of action sports related apparel, footwear, equipment and accessories operating under the Zumiez brand name. As of Jan. 31, 2009, the company operated 343 stores primarily located in shopping malls, giving it a presence in 31 states. ZUMIEZ INC: "Berg" Lawsuit Over Unpaid Overtime Wages Pending ------------------------------------------------------------- A putative class action, Chandra Berg v. Zumiez Inc., Case No. BC408410, is pending in the Los Angeles Superior Court. The action, filed on Feb. 25, 2009, alleges causes of action for failure to pay overtime wages to present and former store managers in California, failure to provide meal periods and rest breaks to store managers, failure to reimburse retail employees for clothing required by the company's dress code, failure to reimburse retail employees for business expenses, failure to provide store managers with accurate itemized wage statements, failure to pay terminated store managers all wages due at the time of termination, unfair business practices and declaratory relief. The company has filed an answer to the Complaint and discovery is being conducted. No motion requesting certification of the case as a class action has been filed, according to the company's Aug. 28, 2009, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Aug. 1, 2009. Zumiez Inc. -- http://www.zumiez.com/-- is a mall-based specialty retailer of action sports related apparel, footwear, equipment and accessories operating under the Zumiez brand name. As of Jan. 31, 2009, the company operated 343 stores primarily located in shopping malls, giving it a presence in 31 states. New Securities Fraud Cases HURON CONSULTING: Barroway Topaz Files Complaint in N.D. Ill. ------------------------------------------------------------- The law firm of Barroway Topaz Kessler Meltzer & Check, LLP, filed a class action lawsuit was filed in the United States District Court for the Northern District of Illinois on behalf of purchasers of securities of Huron Consulting Group, Inc. (Nasdaq: HURN) between April 27, 2006, and July 31, 2009 inclusive. If you wish to discuss this action or have any questions concerning this notice or your rights or interests with respect to these matters, please contact Barroway Topaz Kessler Meltzer & Check, LLP (Darren J. Check, Esq., or David M. Promisloff, Esq.) toll free at 1-888-299-7706 or 1-610-667-7706, or via e-mail at info@btkmc.com. The Complaint charges Huron and certain of its officers and directors with violations of the Securities Exchange Act of 1934. Huron is a consulting company formed by former partners of Arthur Andersen, LLP which claims to help clients comply with complex regulations, resolve disputes, recover from distress, leverage technology, and stimulate growth. More specifically, the Complaint alleges that the Company failed to disclose and misrepresented the following material adverse facts which were known to defendants or recklessly disregarded by them: (1) that since 2006, the Company had improperly accounted for earn-out payments made in connection with four acquisitions; (2) that as a result, the Company had overstated its net income and earnings per share for the affected periods, and had understated its non- cash compensation expenses; (3) that the Company's financial statements were not prepared in accordance with Generally Accepted Accounting Principles; (4) that the Company lacked adequate internal and financial controls; and (5) that, as a result of the foregoing, the Company's financial statements were false and misleading at all relevant times. On July 31, 2009, the Company shocked investors when it announced that it would restate its financial results for fiscal years 2006 through 2008 and the first three months of 2009 due to the Company's failure to properly account for certain payments made in connection with four acquisitions. These payments were received by the sellers in connection with the sale of certain acquired businesses that were subsequently redistributed among themselves and to other select Huron employees. Under the accounting rules, these payments should have been classified as non-cash compensation expenses. Upon the release of this news, the Company's shares declined $30.66 per share, or 69.13 percent, to close on August 3, 2009 (the next trading day) at $13.69 per share, on unusually heavy trading volume. Plaintiff seeks to recover damages on behalf of class members and is represented by the law firm of Barroway Topaz Kessler Meltzer & Check which prosecutes class actions in both state and federal courts throughout the country. Barroway Topaz Kessler Meltzer & Check is a driving force behind corporate governance reform, and has recovered billions of dollars on behalf of institutional and individual investors from the United States and around the world. For more information about Barroway Topaz Kessler Meltzer & Check, or for additional information about participating in this action, please visit http://www.btkmc.com/ If you are a member of the class described above, you may, not later than October 5, 2009, move the Court to serve as lead plaintiff of the class, if you so choose. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. Any member of the purported class may move the court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. CONTACT: Barroway Topaz Kessler Meltzer & Check, LLP Darren J. Check, Esq. David M. Promisloff, Esq. 280 King of Prussia Road Radnor, PA 19087 1-888-299-7706 (toll free) or 1-610-667-7706 Or by e-mail at info@btkmc.com ********* 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. Gracele D. Canilao, Leah Felisilda and Peter A. Chapman, Editors. Copyright 2009. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *