/raid1/www/Hosts/bankrupt/CAR_Public/090922.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, September 22, 2009, Vol. 11, No. 187
Headlines
ALLTEL: Lawsuit in E.D. Mich. Complains About Termination Fees
ALLTEL: Lawsuit in E.D. Mich. Complains About Mobile Content Cost
BHP BILLITON: CCT Suit Over Cerrejon Privatization in Discovery
C & J CLARK: Recalls 2,000 Children's Shoes
DANNON CO: Settles Probiotic Yogurt Advertising Lawsuit for $35MM
DR. PARVEZ DARA: Suspended N.J. Doctor Sued by Infected Patients
EVERETT LANDLORDS: Class Action Suit Alleges Improper Evictions
FACEBOOK INC: Settles Beacon Service Suit for $9.5 Million
FEDEX CORP: Continues to Face Independent Contractors' Lawsuits
FEDEX CORP: "Anfinson" Suit v. FedEx Ground Pending in Wash.
FEDEX CORP: "Wiegele" Wage-and-Hour Suit v. FedEx Ground Ongoing
FEDEX CORP: FedEx Ground Defends Lawsuit by Contractors' Drivers
FEDEX CORP: Still Faces FLSA Claims in "Tidd" Wage-and-Hour Suit
FEDEX CORP: Express Continues to Face "Bibo" Wage-and-Hour Suit
FEDEX CORP: FedEx Freight Faces "Taylor" Wage-and-Hour Lawsuit
GAP INC: Continues to Face Suits Over Wage and Hour Violations
GOOGLE INC: DOJ Encourages Revisions to Book Settlement Pact
LEGALZOOM: Class Action Suit Charges Unauthorized Practice of Law
LULULEMON ATHLETICA: "Kohlenberg" Suit Still Pending in Calif.
LULULEMON ATHLETICA: Defending Suit by Former Hourly Employees
MAPLE LEAF: Nov. 2, 2009 Cutoff Set for Claims to CDN$27M Deal
METLIFE: 2nd Cir. Gets Final Briefs re Debevoise Disqualification
MICROSOFT CORP: Wireless Device Opt-Out Notices Due by Nov. 9
MSC.SOFTWARE CORP: Shareholder Suits Settlement Awaits Approval
SHORETEL INC: Defends Amended Consolidated Securities Complaint
SMITH & WESSON: Consolidated Securities Suit Still in Discovery
TRAFIGURA: Claims Vindication in Abidjan Toxic Waste Litigation
ULTA SALON: Nov. 16 Hearing Set for $3.75M Securities Settlement
ULTA SALON: Defends Store Managers' Employment Suit in Calif.
UNITED STATES: Lawsuit Seeks to Expand House of Representatives
WHOLE FOODS: Suit Claims Grocer Doesn't Honor 10% Volume Discount
New Securities Fraud Cases
IMMERSION CORP: Barroway Files Shareholder Suit in N.D. Calif.
OMNITURE CORP: Kendall Files Fraud Suit in Utah State Court
*********
ALLTEL: Lawsuit in E.D. Mich. Complains About Termination Fees
--------------------------------------------------------------
Courthouse News Service reports that Alltel charges an
unreasonable and excessive $200 early termination fee for cell
phone service, even if the customer can't receive service where
he or she lives, a class action claims in Detroit Federal Court.
A copy of the Complaint in Hinton, et al. v. Alltel Corporation
dba Alltel Communications, LLC (nka Verizon Wireless Services,
LLC and Cellco Partnership d/b/a Verizon Wireless), Case No. 09-
cv-13676 (E.D. Mich.), is available at:
http://www.courthousenews.com/2009/09/18/PhoneBills.pdf
The Plaintiffs are represented by:
Jason J. Thompson, Esq.
SOMMERS SCHWARTZ, P.C.
2000 Town Center, Suite 900
Southfield, MI 48075
Telephone: 248-355-0300
E-mail: jthompson@sommerspc.com
- and -
Jeffrey A. Leon, Esq.
Eric C. Brunick, Esq.
FREED & WEISS LLC
111 West Washington Street, Suite 1331
Chicago, IL 60602
Telephone: (312) 220-0000
- and -
Jim S. Calton, Jr., Esq.
CALTON & CALTON
Post Office Box 895
Eufaula, AL 36072-0895
ALLTEL: Lawsuit in E.D. Mich. Complains About Mobile Content Cost
-----------------------------------------------------------------
Courthouse News Service reports that a class action claims Alltel
bills for "mobile content" services customers never ordered, but
were ordered by the previous owner of the phone number.
A copy of the Complaint in Pratt v. Alltel Communications, LLC,
and Predicto Mobile, LLC, Case No. 09-cv-13691 (E.D. Mich.), is
available at:
http://www.courthousenews.com/2009/09/18/Alltel2.pdf
The Plaintiff is represented by:
Mark H. Freedman, Esq.
LAW OFFICES OF FREEDMAN & FREEDMAN, PLC
24725 West 12 Mile Road, Suite 220
Southfield, MI 48034
Telephone: (248) 799-9905
BHP BILLITON: CCT Suit Over Cerrejon Privatization in Discovery
---------------------------------------------------------------
Popular Action 1,032, filed by Corporacion Colombia Transparente
(CCT) against BHP Billiton's Cerrejon Zona Norte SA remains in
discovery phase.
An NGO, Corporacion Colombia Transparente (CCT) brought three
separate class actions:
* Popular Action 1,029,
* Popular Action 1,032, and
* Popular Action 1,048
against various defendants in connection with the privatization
of 50 percent of the Cerrejon Zona Norte.
The complex is currently owned by Cerrejon Zona Norte S.A. and
Carbones del Cerrejon Limited. BHP Billiton Group's subsidiary
Billiton Investment 3 B.V. owns a 33 percent share in Carbones
Del Cerrejon, and its subsidiaries Billiton Investment 3 B.V. and
Billiton Investment 8 B.V. (BHP Billiton Shareholders)
collectively own a 33.33 percent share in Cerrejon Zona Norte.
The BHP Billiton Shareholders have been named as defendants in
Popular Action 1,048, and BHP Billiton Company B.V., BHP
Billiton's original bidder for the complex, has been named as a
defendant in Popular Action 1,029.
BHP Billiton Company B.V. was served with process in 2005 and
filed a response in Action 1,029. None of the BHP Billiton
Shareholders have been served with process.
CCT alleges, in part, that the defendants failed to comply with
the privatization process, and that the offer price for shares in
Cerrejon Zona Norte between Stages 1 and 2 of the privatization
process was not correctly adjusted for inflation.
CCT claims that:
-- an additional Col$25,487,367,179, which would be an
adjustment of the Cerrejon Zona Norte share price and if
converted to year 2000 U.S. dollars would yield the
amount of approximately US$12,000,000 (our share US$4
million), is due
or, in the alternative,
-- a declaration that the privatization is null and void
and forfeiture of the transfer price paid of
Col$849,554,231,321, which if converted to year 2000
U.S. dollars would yield the amount of approximately
US$400,000,000 (our share approximately US$133 million),
and in both instances, together with unquantified sanctions,
including payment of stamp taxes, an award of 15 per cent of all
monies recovered by the defendants, together with interest on all
amounts at the maximum rate authorized by law.
On 8 May 2007, a further action (Action number 1667) was filed
against Cerrejon Zona Norte. Cerrejon Zona Norte has sought to
have this new but related action dismissed on the basis that it
is a replica of Popular Action 1032.
During the first quarter of 2005, the Council of State applied a
new legal interpretation applicable to popular actions in
Colombia providing that plaintiffs may not file additional class
actions based on the same facts and legal arguments as existing
actions.
As a consequence, the court nullified all proceedings in Popular
Action 1,029 with effect from 20 May 2004 (also being the date
that Popular Actions 1,028, and 1,048 were joined) and dismissed
Popular Action 1,048. All shareholder defendants contend that the
nullification means that the service of process in Action 1,029,
and respective responses, which would include process served on
BHP Billiton Company BV and its response, are null and void.
The plaintiff appealed the court's decision in relation to
Popular Actions 1,029, and 1,048, and the Council of State
confirmed the previous decision by which all proceedings of
Popular Actions 1,029, and 1,048 had been nullified. The
plaintiff was granted the right of a second appeal. In December
2008, the second appeal was dismissed.
The only action still on foot is popular action 1,032, against
CZN, according to BHP Billiton's Sept. 14, 2009, Form 20-F filing
with the U.S. Securities and Exchange Commission for the fiscal
year June 30, 2009.
BHP Billiton plc -- http://www.bhpbilliton.com/-- is a
diversified natural resources company. The company is engaged in
extracting and processing minerals, oil and gas from its
production operations located primarily in Australia, the
Americas and southern Africa. It sells its product worldwide
with its marketing activities centralized in Singapore, The Hague
and Antwerp. The company operates in nine customer sector groups
(CSGs): petroleum, aluminum, base metals, diamonds and specialty
products, stainless steel materials, iron ore; manganese,
metallurgical coal, and energy coal. Its Petroleum CSG is a
global oil and gas business with producing assets in six
countries and exploration opportunities in a further six
countries.
C & J CLARK: Recalls 2,000 Children's Shoes
-------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
C & J Clark America Inc., d/b/a the Clarks Companies N.A., of
Newton, Mass., announced a voluntary recall of about 2,000
children's shoes. Consumers should stop using recalled products
immediately unless otherwise instructed.
Molded rubber pieces on the sole of the recalled shoes can
detach, posing a choking hazard to infants and young children.
No incidents have been reported in the United States. In the
United Kingdom there have been six reports of the rubber pieces
detaching, including two reports of children mouthing the rubber
piece. No injuries have been reported.
This recall involves Clarks(r) children's shoes sold under the
"crawlers" and "hazy daze" style names. The crawlers were sold
in infant sizes 2 to 3 1/2; and the hazy daze in sizes 4 to
6- 1/2. "Clarks" is printed on the sole underneath the heel and
the words "Clarks First Shoes" is printed on a multi-colored
label inside the shoe's heel area. These names and model numbers
are included in this recall:
Model
Name Number Description
---- ------ -----------
Little Kyle Blue Crawler 89823 Blue with red and black trim
Little Kyle Tan Crawler 89824 Tan with blue and brown trim
India Sparkle White Crawler 88000 White with light green trim
and pink stitching
Kirstin Baby Pink Crawler 88109 Light pink with darker pink
trim
Hazy Daze White Sandal 88234 White leather with cream and
tan trim
The shoes were sold at Clarks(r) retail stores nationwide from
February 2009 through July 2009 for between $35 and $40, and were
manufactured in Vietnam.
Consumers should immediately take the shoes away from children
and return them to the nearest Clarks(r) store for a full refund.
For additional information, contact C & J Clark America at (800)
425-2757 between 8 a.m. and 5 p.m. ET Monday through Friday, or
visit the firm's Web site at http://www.clarkskidsusa.com/
To see this recall on CPSC's web site, including pictures of the
recalled product, please go to:
http://www.cpsc.gov/cpscpub/prerel/prhtml09/09344.html
CPSC is still interested in receiving incident or injury reports
that are either directly related to this product recall or
involve a different hazard with the same product at
https://www.cpsc.gov/cgibin/incident.aspx
DANNON CO: Settles Probiotic Yogurt Advertising Lawsuit for $35MM
-----------------------------------------------------------------
As reported in the Jan. 25, 2008, edition of the Class Action
Reporter, a class action lawsuit was filed against The Dannon
Company alleging misleading advertising about its Activia(R) and
DanActive(R) yogurt products.
Late last week, the parties announced that they have reached a
settlement, subject to approval by the U.S. District Court, in
Gemelas v. The Dannon Company, Inc., Case No. 08-cv-00236 (N.D.
Ohio) (Polster, J.), in which Dannon will:
-- create a $35 million fund to reimburse qualified
consumers up to $100 for products purchased; and
-- will make certain changes to its marketing and
labeling of these products.
Michael Neuwirth, spokesperson for The Dannon Company, said, "The
Company has decided to settle the lawsuit to avoid the
uncertainty and expense of further litigation and denies any
wrongdoing."
"Responsible, health-conscious consumers deserve honest
advertising," said Timothy G. Blood, Esq., the lead attorney
handling the case for the firm of Coughlin Stoia Geller Rudman &
Robbins LLP.
The proposed settlement covers qualified consumers of Dannon's
Activia(R) and DanActive(R) branded products. Dannon is also
cooperating with the Federal Trade Commission (FTC), which is
currently reviewing similar claims. The FTC routinely reviews
consumer advertising and Dannon is confident the matter will also
be resolved soon.
To learn more about the settlement, including the process for
filing reimbursement claims and other options, consumers will be
able to visit http://www.DannonSettlement.com/[which is not yet
registered] or http://www.CSGRR.com/Dannon/
The Plaintiff Class is represented by:
Timothy G. Blood, Esq.
John J. Stoia, Jr., Esq.
Leslie E. Hurst, Esq.
Thomas J. O'Reardon, II, Esq.
COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
- and -
Jonathan M. Stein, Esq.
Cullin A. O'Brien, Esq.
COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
- and -
John R. Climaco, Esq.
Scott D. Simpkins, Esq.
David M. Cuppage, Esq.
Jennifer L. Gardner, Esq.
THE CLIMACO LAW FIRM
55 Public Square, Suite 1950
Cleveland, OH 44113
- and -
D. Scott Kalish, Esq.
SCOTT KALISH CO., L.L.C.
1468 West 9th Street
Cleveland, OH 44113
- and -
Frank Piscitelli, Esq.
Frank Piscitelli Co., LPA
55 Public Square, Suite 1950
Cleveland, OH 44113
- and -
Jayne A. Goldstein, Esq.
SHEPHERD FINKELMAN MILLER & SHAH, LLP
1640 Town Center Circle, Suite 216
Weston, FL 33326
- and -
David Pastor, Esq.
GILMAN & PASTOR, LLP
63 Atlantic Avenue, 3rd Floor
Boston, MA 02110
- and -
Jonathan W. Cuneo, Esq.
Pamela Gilbert, Esq.
CUNEO GILBERT & LaDUCA, L.L.P.
507 C Street, N.E.
Washington, DC 20002
Dannon is represented by:
Bruce A. Friedman, Esq.
Gina M. Simas, Esq.
BINGHAM MCCUTCHEN KKO
Fourth Floor, North Tower
1620 26th Street
Santa Monica, CA 90404-4060
- and -
Angel A. Garganta, Esq.
Trenton H. Norris, Esq.
Beth A. Parker, Esq.
ARNOLD & PORTER LLP
275 Battery Street, Suite 2700
San Francisco, CA 94111-3823
- and -
Mark P. Pifko, Esq.
Christopher Tarbell, Esq.
ARNOLD & PORTER LLP
777 South Figueroa Street, 44th Floor
Los Angeles, CA 90017
- and -
Michael N. Ungar, Esq.
David D. Yeagley, Esq.
ULMER & BERNE
1100 Skylight Office Tower
1660 West Second Street
Cleveland, OH 44113
DR. PARVEZ DARA: Suspended N.J. Doctor Sued by Infected Patients
----------------------------------------------------------------
Chelsea Michels at the Asbury Park Press reports that lawyers for
three people who blame their oncologist after contracting
hepatitis B or other conditions are seeking court approval to
proceed with a class-action lawsuit against the doctor.
The patients' lawyers have filed an amended lawsuit in New Jersey
Superior Court naming Dr. Parvez Dara as the defendant. Dr.
Dara's medical license was suspended in April after several of
his patients contracted hepatitis B, according to state health
officials.
According to the suit, filed by:
Andrew T. McDonald, Esq.
Monte & Rudolph, Counsellors at Law, PA
800 The Plaza
Sea Girt, NJ 08750
Telephone: 732.449.0190
Fax: 732.974.9252
E-mail: amcdonald@monterudolph.com
the action is brought by three couples but seeks to include all
other patients who were notified in March by the Ocean County
Health Department and the state Department of Health and Senior
Services regarding possible "exposure to multiple infectious
diseases, including but not limited to hepatitis B, hepatitis C,
and HIV."
In March, Ms. Michels relates, health officials sent a letter to
2,800 former or current patients of Dara, urging them to be
tested for HIV, the virus that causes AIDS, hepatitis C and
hepatitis B. After five cases of hepatitis B were reported in
late February, an investigation found the five infected patients
had received care from Dara.
Last week, Ms. Michels reports, state health officials said there
are 29 positive cases of hepatitis B, plus 68 others who tested
positive for antibodies but cannot be definitely linked to the
outbreak.
"We are aware that a class-action lawsuit was filed in Ocean
County Superior Court on behalf of three former patients of Dr.
Parvez Dara," Timothy White, a spokesman for Dr. Dara, told Ms.
Michels. "Dr. Dara has a number of strong defenses, including
the fact that there are a number of possible medical reasons that
explain why hepatitis B may have developed among patients --
particularly those being treated for cancer with chemotherapy,"
he said.
Mr. McDonald tells Ms. Michels that he is attempting to have the
suit certified as class-action, with potentially 2,800 or more
plaintiffs. "Potential members of the class may have contracted
an infectious disease or have maintained a legitimate fear of
such a fate from the time that they were notified by the state
until getting tested," he said.
The first lawsuit was filed in July on behalf of patient Roland
Jacobsen and his wife Elaine. Added in the amended suit filed
Tuesday are patient Geraldine Gernert and her husband John, and
patient Jacqueline Tuttle and her husband James. The suit says
the three patients "underwent blood testing and analysis and were
found to have contracted hepatitis B and/or other medical
conditions and diseases."
EVERETT LANDLORDS: Class Action Suit Alleges Improper Evictions
---------------------------------------------------------------
Jackson Holtz at The Herald in Everett, Wash., reports that
hundreds, possibly thousands, of people were wrongly evicted from
their Everett apartments when improper legal documents were used
to kick them out and collect fees.
The allegations are part of a complicated class-action lawsuit
filed Friday in Snohomish County, Wash., Superior Court against
some Everett, Wash., landlords and eviction lawyers.
The suit could affect the residents of about 1,000 apartments who
were kicked out after July 2005, said Scott Peterson, Esq., one
of the attorneys filing the suit.
Mr. Peterson told Mr. Holtz that the majority of the people
evicted are disabled and poor. How much money is at stake isn't
yet clear, Mr. Peterson said.
As many as 500 landlords could eventually be named as defendants.
Named Defendants
Mr. Holtz relates that the primary target of the suit is Orlo
Williams, who died earlier this year. His business, Williams
Investments, still owns several Everett rentals. The company was
aware of the suit but offered no comment Friday when reached by
telephone. Also named is All County Evictions, a legal services
company that processes eviction paperwork, according to the court
documents. A woman who answered the phone at All County
Evictions said on Friday that the company hadn't been served and
therefore had no comment.
The problem, the lawsuit alleges, is that the landlords and
eviction lawyers improperly brought eviction notices against the
tenants. Washington law requires a certain kind of paperwork be
used, the lawsuit said. The evictions, court action and fees used
by Williams and other landlords are invalid because the correct
paperwork wasn't used, the lawsuit said.
The suit demands all the judgments against the people wrongly
evicted be voided and all fees that were improperly assessed be
waived.
Mr. Peterson -- who owns and operates
http://www.evictionsplus.net/-- can be reached at:
Scott Peterson, Esq.
27 46th St., S.W.
Everett, WA 98203
Telephone: (206) 391-0372
FACEBOOK INC: Settles Beacon Service Suit for $9.5 Million
----------------------------------------------------------
Jessica E. Vascellaro at The Wall Street Journals reports that
Facebook Inc. settled Lane, et al. v. Faceboook, Inc., et al.,
Case No. 08-cv-03845 (N.D. Calif.) (Seeborg, J.), a class-action
lawsuit related to its Beacon Web product, a controversial
service that displayed actions that users took on other Web sites
back on Facebook.
As part of the settlement, which requires Court approval, the
social-network concern will shut down the Beacon service, which
it has been phasing out but which is still being used by a small
number of Web sites, according to a Facebook spokesman.
The company will also pay $9.5 million to create a foundation to
fund products that promote online privacy, safety and security,
the spokesman said. The settlement was submitted to the court
late Friday evening.
The settlement seeks to resolve a class-action lawsuit a number
of Facebook users filed against Facebook and some sites that
participated in the Beacon service in 2008. The class-action
suit alleged that the service violated users' privacy by sharing
information without their permission. The suit accused Facebook
of trying to profit off the data by selling targeted ads against
it
A representative for the plaintiffs couldn't be reached for
comment. Facebook Spokesman Barry Schnitt said in a statement
that the company "learned a great deal from the Beacon
experience," adding that "we look forward to the creation of the
foundation and its work to educate Internet users on how best to
control their privacy [and] engage in safe social networking
practices."
If approved, Ms. Vascellaro says, the settlement would end an
unpleasant chapter in Facebook's history. The company introduced
Beacon in 2007, hoping to encourage users to share more of their
online activities, such as their purchases, with their friends on
Facebook. But users and privacy advocates quickly complained
Beacon was sharing users' information without their knowledge or
permission. Facebook Chief Executive Mark Zuckerberg publicly
apologized for how the company introduced the service. Facebook
implemented more controls, but the backlash continued, and most
Web sites stopped using the service.
The Plaintiffs are represented by:
Michael James Aschenbrener, Esq.
KamberEdelson, LLC
350 N. LaSalle Street, Suite 1300
Chicago, IL 60654
Telephone: 312-589-6379
Fax: 312-589-6378
E-mail: maschenbrener@kamberedelson.com
- and -
Alan Himmelfarb, Esq.
KamberEdelson, LLC
2757 Leonis Blvd
Vernon, CA 90058
Telephone: 323-585-8696
Fax: 323-585-8696
E-mail: Consumerlaw1@earthlink.net
- and -
Scott A. Kamber, Esq.
David A. Stampley, Esq.
KamberEdelson LLC
11 Broadway, 22nd Floor
New York, NY 10004
Telephone: 212-920-3072
Fax: 212-920-3081
E-mail: skamber@kamberedelson.com
dstampley@kamberedelson.com
- and -
Suzanne L. Havens Beckman, Esq.
David Christopher Parisi
Parisi & Havens, LLP
15233 Valleyheart Drive
Sherman Oaks, CA 91403
Telephone: 818-990-1299
Fax: 818-501-7852
E-mail: shavensbeckman@msn.com
dcparisi@msn.com
- and -
Joseph H Malley, Esq.
Law Office of Joseph H. Malley, PC
1045 North Zang Boulevard
Dallas, TX 75208
Telephone: 214-943-6100
E-mail: malleylaw@gmail.com
Facebook, Inc., is represented by:
Emily Fawne Burns, Esq.
Melina Kaliope Patterson, Esq.
Michael Graham Rhodes, Esq.
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Telephone: 650-843-5000
Fax: 650-857-0663
E-mail: burnsef@cooley.com
mpatterson@cooley.com
rhodesmg@cooley.com
- and -
Maria Ostrovsky, Esq.
Cooley Godward Kornish LLP
The Prudential Tower
800 Boylston Street, 46th Floor
Boston, MA 02199
Telephone: 617-937-2300
Fax: 617-967-2400
Co-defendant Hotwire, Inc., is represented by:
Shawn Hanson, Esq.
Jones Day
555 California Street, 26th Floor
San Francisco, CA 94104
Telephone: 415 626 3939
Fax: 415 875 5700
E-mail: shanson@jonesday.com
FEDEX CORP: Continues to Face Independent Contractors' Lawsuits
---------------------------------------------------------------
FedEx Ground Package System, Inc., one of FedEx Corporation's
business segments, remains involved in class-action lawsuits
relating to the treatment of the company's owner-operators as
employees rather than independent contractors.
FedEx Ground is involved in approximately 50 class-action
lawsuits (including 21 that have been certified as class
actions), several individual lawsuits and approximately 40 state
tax and other administrative proceedings that claim that the
company's owner-operators should be treated as employees, rather
than independent contractors.
Most of the class-action lawsuits have been consolidated for
administration of the pre-trial proceedings by a single federal
court, the U.S. District Court for the Northern District of
Indiana.
With the exception of recently filed cases that have been or
will be transferred to the multidistrict litigation, discovery
on class certification and classification issues and class
certification briefing are now complete.
In October 2007, the company e received a decision from the
court granting class certification in a Kansas action alleging
state law claims on behalf of a statewide class and federal law
claims under the Employee Retirement Income Security Act of 1974
on behalf of a nationwide class. In January 2008, the U.S.
Court of Appeals for the Seventh Circuit declined the company's
request for appellate review of the class certification
decision.
In March 2008, the court granted class certification in 19
additional cases and denied it in nine cases.
In July 2009, the court granted class certification in eight
additional cases and denied it in five cases. The court has not
yet ruled on class certification in the other cases that are
pending in the multidistrict litigation. Motions for summary
judgment on the classification issue (i.e., independent
contractor vs. employee) are (or are expected soon to be) pending
in all 28 of the multidistrict litigation cases that have been
certified as class actions, according to the company's Sept. 18,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 31, 2009.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-
package ground delivery service; FedEx Freight, FedEx Freight
Corp., is a provider of less-than-truckload (LTL) freight
services through its FedEx Freight business (regional next-day
and second-day and interregional LTL freight services) and its
FedEx National LTL business (long-haul LTL freight services),
and FedEx Services, FedEx Corporate Services, Inc. provides
sales, marketing and information technology support, as well as
customer service support through FedEx Customer Information
Services, Inc.
FEDEX CORP: "Anfinson" Suit v. FedEx Ground Pending in Wash.
------------------------------------------------------------
One of FedEx Corporation's business segments, FedEx Ground
Package System, Inc., continues to face a contractor-model
lawsuit, Anfinson v. FedEx Ground.
In January 2008, the Anfinson suit was certified as a class
action by a Washington state court. The lawsuit is not part of
the multidistrict litigation.
The plaintiffs in Anfinson represent a class of FedEx Ground
single-route, pickup-and-delivery owner-operators in Washington
from Dec. 21, 2001 through Dec. 31, 2005, and allege
that the class members should be reimbursed as employees for
their uniform expenses and should receive overtime pay.
In March 2009, a jury trial in the Anfinson case was held, and
the jury returned a verdict in favor of FedEx Ground, finding
that all 320 class members were independent contractors, not
employees.
The plaintiffs have appealed the verdict.
The other contractor-model lawsuits that are not part of the
multidistrict litigation are not as far along procedurally as
Anfinson and all but one of the lawsuits are currently stayed
pending further developments in the multidistrict litigation,
according to the company's Sept. 18, 2009, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Aug. 31, 2009.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-
package ground delivery service; FedEx Freight, FedEx Freight
Corp., is a provider of less-than-truckload (LTL) freight
services through its FedEx Freight business (regional next-day
and second-day and interregional LTL freight services) and its
FedEx National LTL business (long-haul LTL freight services),
and FedEx Services, FedEx Corporate Services, Inc. provides
sales, marketing and information technology support, as well as
customer service support through FedEx Customer Information
Services, Inc.
FEDEX CORP: "Wiegele" Wage-and-Hour Suit v. FedEx Ground Ongoing
----------------------------------------------------------------
One of FedEx Corporation's business segments, FedEx Ground
Package System, Inc., continues to face a wage-and-hour class
action case, Wiegele v. FedEx Ground, according to the company's
Sept. 18, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Aug. 31, 2009.
In February 2008, the Wiegele wage-and-hour case was certified
as a class action by a California federal court, and in April
2008, the U.S. Court of Appeals for the Ninth Circuit denied the
company's petition to review the class certification ruling.
The plaintiffs in Wiegele represent a class of FedEx Ground sort
managers and dock service managers in California from May 10,
2002 to the present.
The plaintiffs allege that FedEx Ground has misclassified the
managers as exempt from the overtime requirements of California
wage-and-hour laws and is correspondingly liable for failing to
pay them overtime compensation and provide them with rest and
meal breaks.
Subject to court approval, the plaintiffs have agreed to dismiss
the sort managers, leaving only the dock service managers in the
class.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-
package ground delivery service; FedEx Freight, FedEx Freight
Corp., is a provider of less-than-truckload (LTL) freight
services through its FedEx Freight business (regional next-day
and second-day and interregional LTL freight services) and its
FedEx National LTL business (long-haul LTL freight services),
and FedEx Services, FedEx Corporate Services, Inc. provides
sales, marketing and information technology support, as well as
customer service support through FedEx Customer Information
Services, Inc.
FEDEX CORP: FedEx Ground Defends Lawsuit by Contractors' Drivers
----------------------------------------------------------------
FedEx Ground Package System, Inc., one of FedEx Corporation's
business segments, continues to face a purported class action
brought by drivers of the company's independent contractors.
The class action lawsuit was brought by drivers of the company's
independent contractors who claim that they were jointly
employed by the contractor and FedEx Ground.
No further details were disclosed in the company's Sept. 18,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 31, 2009.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-
package ground delivery service; FedEx Freight, FedEx Freight
Corp., is a provider of less-than-truckload (LTL) freight
services through its FedEx Freight business (regional next-day
and second-day and interregional LTL freight services) and its
FedEx National LTL business (long-haul LTL freight services),
and FedEx Services, FedEx Corporate Services, Inc. provides
sales, marketing and information technology support, as well as
customer service support through FedEx Customer Information
Services, Inc.
FEDEX CORP: Still Faces FLSA Claims in "Tidd" Wage-and-Hour Suit
----------------------------------------------------------------
One of FedEx Corporation's business segments, FedEx Ground
Package System, Inc., continues to face a class claim under the
federal Fair Labor Standards Act, according to the company's
Sept. 18, 2009, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Aug. 31, 2009.
In September 2008, in another one of these wage-and-hour cases,
"Tidd v. Adecco USA, Kelly Services and FedEx Ground," a
Massachusetts federal court conditionally certified a class
limited to individuals who were employed by two temporary
employment agencies and who worked as temporary pick-up-and-
delivery drivers for FedEx Ground in the New England region
within the past three years.
Potential claimants must voluntarily "opt in" to the lawsuit in
order to be considered part of the class. In addition, in the
same opinion, the court granted summary judgment in favor of
FedEx Ground with respect to the plaintiffs' claims for unpaid
overtime wages.
Accordingly, as to FedEx Ground, the conditionally certified
class of plaintiffs is now limited to a claim of failure to pay
regular wages due under the federal Fair Labor Standards Act.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-
package ground delivery service; FedEx Freight, FedEx Freight
Corp., is a provider of less-than-truckload (LTL) freight
services through its FedEx Freight business (regional next-day
and second-day and interregional LTL freight services) and its
FedEx National LTL business (long-haul LTL freight services),
and FedEx Services, FedEx Corporate Services, Inc. provides
sales, marketing and information technology support, as well as
customer service support through FedEx Customer Information
Services, Inc.
FEDEX CORP: Express Continues to Face "Bibo" Wage-and-Hour Suit
----------------------------------------------------------------
One of FedEx Corporation's business segments, Federal Express
Corporation continues to face the wage-and-hour case, Bibo v.
FedEx Express.
In April 2009, a California federal court granted class
certification in the wage-and-hour case, certifying several
subclasses of FedEx Express couriers in California from April
14, 2006 (the date of the settlement of the Foster class action)
to the present.
The plaintiffs allege that FedEx Express violated California
wage-and-hour laws after the date of the Foster settlement.
In particular, the plaintiffs allege, among other things, that
they were forced to work "off the clock" and were not provided
with required meal breaks or split-shift premiums.
The company asked the U.S. Court of Appeals for the Ninth Circuit
to accept a discretionary appeal of the class certification
order, but the court refused to accept it at this time, according
to the company's Sept. 18, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Aug. 31,
2009.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-
package ground delivery service; FedEx Freight, FedEx Freight
Corp., is a provider of less-than-truckload (LTL) freight
services through its FedEx Freight business (regional next-day
and second-day and interregional LTL freight services) and its
FedEx National LTL business (long-haul LTL freight services),
and FedEx Services, FedEx Corporate Services, Inc. provides
sales, marketing and information technology support, as well as
customer service support through FedEx Customer Information
Services, Inc.
FEDEX CORP: FedEx Freight Faces "Taylor" Wage-and-Hour Lawsuit
--------------------------------------------------------------
One of FedEx Corporation's subsidiaries, FedEx Freight
Corporation, faces a purported class action suit over alleged
violation of California wage and hour laws, Taylor v. FedEx
Freight.
In July 2009, in the wage-and-hour case, a California state court
indicated that it would grant class certification, and an order
is being prepared for issuance by the court.
The plaintiffs purport to represent a class of all current and
former drivers employed by FedEx Freight in California who
performed line haul services since June 2003.
The plaintiffs allege, among other things, that they were forced
to work "off the clock" and were not provided with required rest
or meal breaks, according to the company's Sept. 18, 2009, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Aug. 31, 2009.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-
package ground delivery service; FedEx Freight, FedEx Freight
Corp., is a provider of less-than-truckload (LTL) freight
services through its FedEx Freight business (regional next-day
and second-day and interregional LTL freight services) and its
FedEx National LTL business (long-haul LTL freight services),
and FedEx Services, FedEx Corporate Services, Inc. provides
sales, marketing and information technology support, as well as
customer service support through FedEx Customer Information
Services, Inc.
GAP INC: Continues to Face Suits Over Wage and Hour Violations
--------------------------------------------------------------
The Gap, Inc. continues to face class action lawsuits in which
plaintiffs allege that the company violated federal and state
wage and hour and other laws.
The plaintiffs in some actions seek unspecified damages or
injunctive relief, or both.
These actions are in various procedural stages, and some are
covered in part by insurance.
No specific details regarding the pending lawsuits were disclosed
in the company's Sept. 9, 2009, Form 10-Q filed with
the U.S. Securities and Exchange Commission for the quarter
ended Aug. 1, 2009.
The Gap, Inc. -- http://www.gapinc.com/-- is a global specialty
retailer offering clothing, accessories and personal care
products for men, women, children and babies under the Gap, Old
Navy, Banana Republic, Piperlime and Athleta brands. The
company operates stores in the United States, Canada, the United
Kingdom, France, Ireland and Japan. It also has franchise
agreements with unaffiliated franchisees to operate Gap and
Banana Republic stores in many other countries worldwide.
GOOGLE INC: DOJ Encourages Revisions to Book Settlement Pact
------------------------------------------------------------
The U.S. Department of Justice advised the U.S. District Court
for the Southern District of New York in a 32-page filing last
week that while it should not accept the class action settlement
in The Authors Guild, Inc. v. Google, Inc., Case No. 05-cv-8136
(S.D.N.Y.) (Chin, J.), as proposed due to concerns of the United
States regarding class action, copyright and antitrust law, the
parties should be encouraged to continue their productive
discussions to address those concerns.
"The Proposed Settlement is one of the most far-reaching class
action settlements of which the United States is aware," the
Justice Department says; "[I]t should not be a surprise that the
parties did not anticipate all of the difficult legal issues such
an ambitious undertaking might raise."
In its statement of interest filed with the court, the Department
stated:
"Given the parties' express commitment to ongoing
discussions to address concerns already raised and the
possibility that such discussions could lead to a settlement
agreement that could legally be approved by the Court, the
public interest would best be served by direction from the
Court encouraging the continuation of those discussions
between the parties and, if the Court so chooses, by some
direction as to those aspects of the Proposed Settlement
that need to be improved. Because a properly structured
settlement agreement in this case offers the potential for
important societal benefits, the United States does not want
the opportunity or momentum to be lost."
In its filing, the Department proposed that the parties consider
a number of changes to the agreement that may help address the
United States' concerns, including imposing limitations on the
most open-ended provisions for future licensing, eliminating
potential conflicts among class members, providing additional
protections for unknown rights holders, addressing the concerns
of foreign authors and publishers, eliminating the joint-pricing
mechanisms among publishers and authors, and, whatever the
settlement's ultimate scope, providing some mechanism by which
Google's competitors can gain comparable access.
A copy of the government's Statement of Interest is available at:
http://thepublicindex.org/docs/letters/usa.pdf
The settlement agreement between Google and the authors and
publishers aims to resolve copyright infringement claims brought
against Google by the Authors Guild and five major publishers in
2005 raised by Google's efforts to digitally scan books contained
in several libraries and make them searchable on the Internet.
The District Court's hearing on the proposed settlement is
scheduled to take place on October 7, 2009.
LEGALZOOM: Class Action Suit Charges Unauthorized Practice of Law
-----------------------------------------------------------------
Elizabeth Banicki at Courthouse News Service reports that
LegalZoom, a nationwide Web-based legal document service,
effectively practices law without a license by advertising that
it can "put the law on your side," an unhappy customer says in a
California Superior Court class action. Charles Drozdyk says he
paid LegalZoom $687 to incorporate his business.
Mr. Drozdyk says LegalZoom violates state business and
professional codes.
Mr. Drozdyk lives in Austin; LegalZoom is based in Los Angeles.
Mr. Drozdyk says California requires certain language in
contracts, including "specific language about the right to
rescind, the availability of attorneys fees, how to report the
unauthorized practice of law and other matters. The disclosures
and the form of contract utilized by LegalZoom do not comply with
the statutory requirements."
Mr. Drozdyk claims that LegalZoom's Web site states that its
forms were "prepared, developed and offered by attorneys," though
as a legal document assistant the company is prohibited from "the
unauthorized practicing of law."
LegalZoom's Web site shows a testimonial from California attorney
"Marko C." but Mr. Drozdyk claims the California Bar Association
does not show any attorneys with such a name.
Mr. Drozdyk says LegalZoom's "Terms of Service" are misleading or
false because it represents that it can provide legal advice,
review customers' forms, and guarantee satisfaction.
LegalZoom advertises on national media, including the Dean
Hannity Show on Fox TV and the Laura Ingraham Show on radio,
according to the complaint.
Mr. Drozdyk seeks disgorgement, restitution and an injunction,
and is represented by:
Robert S. Green, Esq.
Green Welling LLP
595 Market Street, Suite 2750
San Francisco, CA 94105
Telephone: (415) 477-6700
Fax: (415) 477-6710
LULULEMON ATHLETICA: "Kohlenberg" Suit Still Pending in Calif.
--------------------------------------------------------------
The class-action suit filed against lululemon athletica inc. by a
former hourly company employee is pending in Orange County
Superior Court, California.
On March 26, 2009, the former employee filed the lawsuit
entitled, "Brett Kohlenberg et al v. lululemon athletica inc."
The lawsuit alleges that the company violated various California
Labor Code sections by failing to pay its employees for certain
rest and meal breaks and "off the clock" work, and for penalties
related to waiting times and failure to provide itemized wage
statements.
The plaintiff is seeking an unspecified amount of damages.
The company is defending the lawsuit, according to its Sept. 10,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Aug. 2, 2009.
lululemon athletica inc. -- http://www.lululemon.com/-- is a
designer and retailer of technical athletic apparel primarily in
North America. Its yoga-inspired apparel is marketed under the
lululemon athletica brand name. The company offers a line of
apparel and accessories, including fitness pants, shorts, tops
and jackets designed for athletic pursuits, such as yoga, dance,
running and general fitness. It offers a line of performance
apparel and accessories for both women and men. The company's
fitness-related accessories include an array of items such as
bags, socks, underwear, yoga mats, instructional yoga digital
versatile discs, water bottles and headbands. As of Feb. 1,
2009, the company's branded apparel was principally sold through
its 113 stores that are primarily located in Canada and the
United States. As of Feb. 1, 2009, the company has discontinued
its operations in Japan.
LULULEMON ATHLETICA: Defending Suit by Former Hourly Employees
--------------------------------------------------------------
lululemon athletica inc. continues to defend a class action
lawsuit filed by three of its former hourly employees in San
Diego Superior Court, according to its Sept. 10, 2009, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Aug. 2, 2009.
On April 2, 2009, the plaintiffs filed the class action lawsuit
entitled, "Mia Stephens et al v. lululemon athletica inc."
The lawsuit alleges that the company violated various California
Labor Code sections by requiring employees to wear lululemon
clothing during working hours without reimbursing such employees
for the cost of the clothing and by paying certain bonus
payments to its employees in the form of lululemon gift cards
redeemable only for lululemon merchandise.
The complaint also alleges that the company owes waiting time
penalties as the result of failing to pay employees all wages
due at the time of termination.
The plaintiffs are seeking an unspecified amount of damages.
lululemon athletica inc. -- http://www.lululemon.com/-- is a
designer and retailer of technical athletic apparel primarily in
North America. Its yoga-inspired apparel is marketed under the
lululemon athletica brand name. The company offers a line of
apparel and accessories, including fitness pants, shorts, tops
and jackets designed for athletic pursuits, such as yoga, dance,
running and general fitness. It offers a line of performance
apparel and accessories for both women and men. The company's
fitness-related accessories include an array of items such as
bags, socks, underwear, yoga mats, instructional yoga digital
versatile discs, water bottles and headbands. As of Feb. 1,
2009, the company's branded apparel was principally sold through
its 113 stores that are primarily located in Canada and the
United States. As of Feb. 1, 2009, the company has discontinued
its operations in Japan.
MAPLE LEAF: Nov. 2, 2009 Cutoff Set for Claims to CDN$27M Deal
--------------------------------------------------------------
A Nov. 2, 2009 deadline was set for claiming a share of the
CDN$27 million settlement in the Canada-wide class-action
lawsuits against Maple Leaf Foods filed after last year's
listeriosis outbreak.
The lead actions are:
(A) Bishay Estate, et al. v. Maple Leaf Foods, et al., Court
File No. QB 1173 in the Court of Queen's Bench of
Saskatchewan, for residents of Nova Scotia, New
Brunswick, Newfoundland and Labrador, Manitoba,
Saskatchewan, Yukon, North West Territories, Nunavut,
and residents outside of Canada;
(B) Bilodeau, et al. v. Maple Leaf Foods, et al., Court File
No. CV-08-361464CP in the Ontario Superior Court of
Justice, for residents of Ontario, B.C. and Alberta; and
(C) Melvin and Option Consommateurs, et al. v. Maple Leaf
Foods, et al., Court File No. 500-06-445-086 in the
Superior Court of Quebec, for residents of Quebec.
A Canada-wide settlement of up to CDN$27 million has been
approved by the Courts in Saskatchewan, Ontario and Quebec
providing financial compensation for people who purchased or
consumed recalled meat products produced by Maple Leaf Foods,
during the period January 1, 2008, to August 31, 2008.
How to Apply for Compensation
Anyone who believes they qualify for compensation can
download a claim form from the Web site at:
http://www.mapleleafclaim.com/
or by calling the court-appointed Claims Administrator toll-free
at 1-800-801-2521. If you are unsure if you qualify, you are
encouraged to call the Claims Administrator.
All claims must be filed by 5:00 pm EST, November 2, 2009
and you are encouraged to file your claim as soon as possible to
avoid processing delays.
The only way to receive compensation is to submit a
completed claim form to the Court appointed Claims
Administrator.
Who Should Claim
The settlement establishes a fund of up to CDN$27 million
to pay valid claims for compensation relating to the physical or
psychological harm caused by the consumption of Recalled
Products. The settlement provides varying amounts of
compensation to individuals who consumed recalled products and
became sick or died.
The following claim submission facts should be noted:
-- Proof of purchase and consumption is not required. A
sworn Declaration attesting to purchase and
consumption is sufficient.
-- Proof of any listeria infection is not required. A
sworn Declaration attesting to physical illness with
flu like symptoms is sufficient.
-- Medical proof of illness or psychological trauma is
required except in the case of illness lasting between
24 and 48 hours. In the latter case, no medical proof
is required at all.
People who purchased but did not consume Recalled Products
are also bound by the settlement but are ineligible to be paid
any compensation.
Summary of legal rights to compensation in this settlement:
A. Physical and Psychological Trauma Claims Without Medical
Evidence Lump sum payment: CDN$750.00.
a. Physical symptoms consistent with listeriosis after
consuming.
b. Illness duration: 24 hours to less than 48 hours.
c. Medical proof: None required.
NOTE: If a claimant consumed recalled product and suffered
from flu-like symptoms but never visited a doctor or hospital or
clinic, he or she may claim at Level 1 as this is the level that
does not require medical evidence to support a claim.
B. Physical and Psychological Trauma Claims with Medical
Evidence Payment range: CDN$3,000 - CDN$125,000 plus
certain additional amounts.
a. Physical symptoms consistent with listeriosis after
consuming.
b. Illness duration: More than 48 hours.
c. Medical proof: Required.
C. Psychological Trauma Only Claims with Medical Evidence
Payment range: CDN$2,000 - CDN$17,500 plus certain
additional amounts.
a. Psychological trauma only, after consuming.
b. Anxiety onset after August 17, 2009.
c. Medical proof: Required.
A list of over 242 Recalled Products which were identified
as potentially contaminated with the bacteria listeria
monocytogenes, can be found on the website
http://www.mapleleafclaim.com.
Opting Out of the Class Action Settlement
The only option that allows claimants to ever be part of
any other lawsuit against Maple Leaf Foods regarding the legal
claims in this case, is by submitting a signed "Opt Out" form
postmarked no later than Friday August 7, 2009.
Under the settlement approved by the courts, if a claimant
chooses to do nothing by the claims deadline of November 2,
2009, they will receive no compensation and give up all of their
rights to further legal action in this matter.
For further information: visit http://www.mapleleafclaim.com/or
contact the Claims Administrator: Bruneau Group Inc.: Maple Leaf
Settlement Administrator, 1-800-801-2521, Fax: (613) 562-0321,
info@mapleleafclaim.com.
METLIFE: 2nd Cir. Gets Final Briefs re Debevoise Disqualification
-----------------------------------------------------------------
Daniel Wise at the New York Law Journal reports that MetLife and
the 8.6 million-member plaintiff class that is suing the
insurance giant completed a final round of briefing last week
over the Honorable Thomas C. Platt's last-minute disqualification
of Debevoise & Plimpton as MetLife's trial counsel.
The parties' briefs lay factual contentions on the plaintiffs'
claim that Debevoise must be disqualified under the attorney-
witness rule because there is a likelihood the testimony of four
Debevoise lawyers will be adverse to MetLife.
The class in In re MetLife DeMutualization Litigation,
CV-00-2258 (E.D.N.Y.), seeks $8 billion on its claim that class
members were shortchanged as a result of a misleading prospectus
issued by MetLife in conjunction with its conversion in 2000 from
a mutual company to a stock company publicly traded on the New
York Stock Exchange.
Both sides have included four Debevoise lawyers on their witness
lists: Carl Micarelli, Esq., a litigator; Seth Rosen, Esq., a tax
partner; and Wolcott B. Dunham, Esq., and James C. Scoville,
Esq., both mergers and acquisitions partners.
On Sept. 1, Judge Platt disqualified Debevoise, relying on a
ruling he made two years earlier on a discovery motion. In that
ruling, which involved attorney-client privilege, the judge held
that Debevoise had a conflict because it had previously
represented MetLife's policyholders and was continuing to
represent the company after the two entities' interests had
become adverse, 495 F. Supp.2d 310 (2007).
Platt's ruling came less than a week before the Sept. 8 scheduled
start of jury selection.
Mr. Wise's complete report is available at:
http://www.law.com/newswire/cache/1202433896113.html
Previous reporting about the Debevoise Disqualification issue
appeared in the Class Action Reporter on Sept. 7, 2009.
The class is represented by:
Jared Stamell, Esq.
Stamell & Schager, LLP
One Liberty Plaza, 35th Floor
New York, New York 10006
- and -
David S. Mandel, Esq.
Mandel & Mandel LLP
1200 Alfred I. duPont Bldg.
169 E. Flagler Street
Miami, FL 33131
In the appeal, MetLife is represented by Theresa Wynn
Roseborough, Esq., and Duncan J. Logan, Esq., of its in-house
staff, and:
Michael B. Mukasey, Esq.
Mary Jo White, Esq.
Bruce E. Yannett, Esq.
Debevoise % Plimpton LLP
919 Third Avenue
New York, NY 10022
MICROSOFT CORP: Wireless Device Opt-Out Notices Due by Nov. 9
-------------------------------------------------------------
A settlement has been reached in two class action lawsuits in the
Los Angeles County Superior Court against Microsoft -- John Yu v.
Microsoft Corporation, Case No. BC316448 and Roman Shersher v.
Microsoft Corporation, Case No. BC340630. The lawsuits involve
certain Microsoft Wireless Devices bought from September 1, 2002
through July 31, 2009. Buyers can receive a cash payment for
each Microsoft Wireless Device bought new and not for resale from
a retailer or other entity that regularly sold such devices or
from Microsoft's Web site. The Court-ordered notice and other
documents at this Web site explain the settlement and the
benefits it provides.
Frequently Asked Questions
Q: What is this settlement about?
A: A settlement has been reached in two class action lawsuits in
the Los Angeles County Superior Court against Microsoft -- John
Yu v. Microsoft Corporation, Case No. BC316448 and Roman Shersher
v. Microsoft Corporation, Case No. BC340630. The lawsuits involve
certain Microsoft Wireless Devices bought from September 1, 2002
through July 31, 2009. Under the terms of the settlement,
Microsoft will provide cash payments to eligible buyers for each
Microsoft Wireless Device bought new and not for resale from a
retailer or other entity that regularly sold such devices or from
Microsoft's Web site from September 1, 2002 through July 31,
2009.
Q: What are the key dates?
SUBMIT A CLAIM FORM: The claim period expiration date will be no
earlier than June 7, 2010 and may be later. When the court enters
its Judgment the expiration date of the claim period will be
posted on this Web site.
EXCLUDE YOURSELF: 11/09/2009
OBJECT: 11/09/2009
GO TO APPROVAL HEARING: 12/8/09
Q: What benefits are available under the settlement?
A: You can receive a cash payment of up to 10% of the
Manufacturer's Estimated Retail Price for eligible Microsoft
Wireless Devices bought from a retailer or other entity that
regularly sold such devices or from Microsoft's Web site from
September 1, 2002 through July 31, 2009. Eligible devices are
listed below. Payments will be made from a Settlement Fund of
$1.6 million that Microsoft will establish. Payments will be 10%
of MERP, unless the total valid Claim Forms submitted during the
Claim Period would exceed the balance in the $1.6 million
Settlement Fund after the amount of Court-ordered attorneys'
fees, costs and expenses to Class Counsel is deducted. In that
case, the 10% payment rate will be reduced so that the total
amount paid on all of the claims will equal, but not exceed, the
Settlement Fund's balance after deducting the amount of Court-
ordered attorneys' fees, costs and expenses. An example of such a
possible reduction is set forth below. Microsoft will contribute
any balance in the Settlement Fund after payments to Class
Members and Plaintiffs' attorneys' fees and costs to the Boys and
Girls Clubs of America.
Manufacturer's Estimated Retail Prices: The amount of the
payments to Settlement Class Members who submit valid claims
during the Claim Period will be determined by reference to the
following MERP's of the Wireless Devices:
(a) Settlement Class Members who bought a BBN Wireless B
Station MN500 (MERP $149.95) are eligible to receive a payment of
up to $15.00;
(b) Settlement Class Members who bought a BBN Wireless B USB
Adapter MN510 (MERP $79.95) are eligible to receive a payment of
up to $8.00;
(c) Settlement Class Members who bought a BBN Wireless B
Notebook Adapter MN520 (MERP $79.95) are eligible to receive a
payment of up to $8.00;
(d) Settlement Class Members who bought a BBN Wireless B
Desktop Kit MN610 (MERP $219.95) are eligible to receive a
payment of up to $22.00;
(e) Settlement Class Members who bought a BBN Wireless B
Notebook Kit MN620 (MERP $219.95) are eligible to receive a
payment of up to $22.00;
(f) Settlement Class Members who bought a BBN Wireless G Base
Station MN700 (MERP $109.95) are eligible to receive a payment of
up to $11.00;
(g) Settlement Class Members who bought a BBN Wireless G USB 2
Adapter MN710 (MERP $79.00) are eligible to receive a payment of
up to $7.90;
(h) Settlement Class Members who bought a BBN Wireless G
Notebook Adapter MN720 (MERP $84.95) are eligible to receive a
payment of up to $8.50;
(i) Settlement Class Members who bought a BBN Wireless G PCI
Adapter MN730 (MERP $84.95) are eligible to receive a payment of
up to $8.50; and
(j) Settlement Class Members who bought a BBN Wireless G
Notebook Kit MN820 (MERP $179.00) are eligible to receive a
payment of up to $17.90.
Example of possible reduction in amount of payment to less than
10% of MERP: If the Court awards Class Counsel $448,000 in
attorneys' fees, costs and expenses, the $1.6 million Settlement
Fund's remaining balance would be $1,152,000 ($1,600,000 less
$448,000). If timely and valid Claim Forms are submitted that
would result in payments of $1.3 million, then the percentage
used to determine payments to Settlement Class Members who
submitted timely and valid claims would be 8.8615% (10% x
1,152,000/1,300,000), instead of 10%, of MERP. This is an example
to show how a reduction, if needed, will be calculated. Whether a
reduction will be needed and the amount, if any, will be known
after all Claim Forms are processed.
Q: How can I file a claim?
A. To file a claim, you must complete a Claim Form and return it
postmarked during the Claim Period. The Claim Period begins on
August 27, 2009, and ends 180 days after Judgment approving
settlement. This expiration date will be no earlier than June 7,
2010, and may be later. When the Court enters its Judgment, the
expiration date of this 180-day period will be posted on this Web
site.
A PDF version of the Claim Form may be downloaded at
http://is.gd/3urSSor an XPS version of the Claim Form may be
downloaded at http://is.gd/3urVh
Alternatively, a claim form can be requested by calling
1-800-437-7918 or writing to:
Yu-Shersher Settlement Administration
P.O. Box 11487
Birmingham, AL 35202-1487
The completed Claim Form must be mailed via U.S. Mail to the
Claims Administrator at the following address:
Q: Am I a member of the class?
A: You are a member of the class entitled to submit a claim for
settlement benefits if you bought a Microsoft Wireless Device in
the United States from September 1, 2002 through July 31, 2009
new (i.e., not second hand), and not for resale to others, from a
retailer or other entity that regularly sold such devices or from
Microsoft's Web site. The eligible Microsoft Wireless devices
are: BBN Wireless B Station MN500, BBN Wireless B USB Adapter
MN510, BBN Wireless B Notebook Adapter MN520, BBN Wireless B
Desktop Kit MN610, BBN Wireless B Notebook Kit MN620, BBN
Wireless G Base Station MN700, BBN Wireless G USB 2 Adapter
MN710, BBN Wireless G Notebook Adapter MN720, BBN Wireless G PCI
Adapter MN730, and BBN Wireless G Notebook Kit MN820.
Q: Where can I get more detailed information about the
settlement?
A: This Web site includes links to documents that contain
detailed information about the settlement, including those titled
"Summary Notice," "Detailed Notice," "Revised Stipulation of
Settlement," "Amendment to the Revised Stipulation of
Settlement," and the "Second Amendment to Revised Stipulation of
Settlement and Order." The Revised Stipulation of Settlement and
the Amendments to the Revised Stipulation of Settlement are also
available for public review at the office of the Clerk of the
Court, Superior Court of California, County of Los Angeles, 600
South Commonwealth Avenue, Los Angeles CA 90005. Or, if you have
questions that are not addressed in this Notice, you may contact
Class Counsel:
Jordan L. Lurie, Esq.
Zev B. Zysman, Esq.
Weiss & Lurie
10940 Wilshire Boulevard, 23rd Floor
Los Angeles, CA 90024
Telephone: 1-800-437-7918
- or -
Ira Spiro, Esq.
Spiro Moss LLP
11377 W. Olympic Blvd, 5th Fl.
Los Angeles, CA 90064
Telephone: 1-866-522-7202
Additional documents concerning this matter are available at:
http://www.microsoft.com/hardware/support/bbn/
Product ID Help
You are eligible to submit a Claim Form if you bought any of the
following Microsoft Wireless Devices in the United States, new
(i.e., not second hand) and not for resale, from a retailer or
other entity that regularly sold such devices or from Microsoft's
Web site from September 1, 2002 through July 31, 2009:
(a) Microsoft BBN Wireless B Station MN500
(b) Microsoft BBN Wireless B USB Adapter MN510
(c) Microsoft BBN Wireless B Notebook Adapter MN520
(d) Microsoft BBN Wireless B Desktop Kit MN610
(e) Microsoft BBN Wireless B Notebook Kit MN620
(f) Microsoft BBN Wireless G Base Station MN700
(g) Microsoft BBN Wireless G USB 2 Adapter MN710
(h) Microsoft BBN Wireless G Notebook Adapter MN720
(i) Microsoft BBN Wireless G PCI Adapter MN730
(j) Microsoft BBN Wireless G Notebook Kit MN820
WHERE TO LOOK FOR THE MAC ID AND PRODUCT ID NUMBERS OF YOUR
MICROSOFT WIRELESS DEVICE
If you still have your Wireless Device, you must write both its
MAC ID and Product ID numbers on the Claim Form. The MAC ID and
Product ID numbers are printed on a sticker on the Wireless
Device.
Microsoft Corp. is represented in this matter by:
Ronald K. Meyer, Esq.
MUNGER, TOLLES & OLSON LLP
355 South Grand Avenue, 35th Floor
Los Angeles, CA 90071-1560
Also participating in the settlement, on the Plaintiffs' behalf,
is:
Jonathan Shub, Esq.
SEEGER WEISS LLP
1515 Market Street, Suite 1380
Philadelphia, PA 19102
Telephone: (215) 564-2300
Fax: (215) 851-8029
MSC.SOFTWARE CORP: Shareholder Suits Settlement Awaits Approval
---------------------------------------------------------------
The proposed settlement of the shareholder class action suits
filed against MSC.Software Corporation and the company's
directors is pending final approval.
In July 2009, four substantially similar shareholder class action
suits were filed by individual stockholders in the Superior Court
of California in Orange County.
The lawsuits are:
-- Erwin Burth v. Donald Glickman, et al., Case No.
30-2009-00282743,
-- Shaun Kroeger v. Donald Glickman, et al., also naming
Parent and Merger Subsidiary as defendants, Case No.
30-2009-00284475,
-- Richard Caselli v. Donald Glickman, et al., Case No.
30-2009-00285360, and
-- Dean Murzello v. MSC, et al., also naming Symphony,
Elliott Management Company and Parent as defendants, Case
No. 30-2009-00286068.
The complaints seek to enjoin the proposed acquisition of MSC by
Parent, and allege claims for breach of fiduciary duty against
the individual defendants and for aiding and abetting a breach of
fiduciary duty against the corporate defendants.
On Aug. 7, 2009, the court entered an order that, among other
things, consolidated all four cases into the Burth action.
On Sept. 3, 2009, plaintiffs filed a consolidated amended
complaint against MSC and the company's directors, Symphony,
Parent, Merger Subsidiary and Elliott that alleges claims for
breach of fiduciary duty against the individual defendants and
for aiding and abetting a breach of fiduciary duty against the
corporate defendants. The amended complaint also asserts that
the proxy statement contains a number of material misstatements
and omissions.
On Sept. 10, 2009, after extensive discovery had been taken,
counsel for the parties in the lawsuit entered into a memorandum
of understanding in which they agreed upon the terms of a
settlement of the litigation, which would include the dismissal
with prejudice of all claims against all of the defendants,
including MSC and its directors. The proposed settlement is
conditional upon, among other things, the execution of an
appropriate stipulation of settlement, consummation of the merger
and final approval of the proposed settlement by the court. The
memorandum of understanding further provides that MSC will keep
plaintiffs' counsel reasonably informed of material developments
in discussions concerning the acquisition of MSC, according to
the company's Form 8-K filed with
the U.S. Securities and Exchange Commission dated Sept. 11, 2009.
MSC.Software Corporation -- http://www.mscsoftware.com/--
develops, markets, and supports simulation software and related
services.
SHORETEL INC: Defends Amended Consolidated Securities Complaint
---------------------------------------------------------------
ShoreTel, Inc. continues to defend the consolidated class-action
suit, In Re ShoreTel, Inc. Securities Litigation, according to
the company's Sept. 10, 2009, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended June
30, 2009.
On Jan. 16, 2008, a purported stockholder class action lawsuit,
captioned "Watkins v. ShoreTel, Inc., et al.," was filed in the
U.S. District Court for the Northern District of California
against ShoreTel, certain of its officers and directors, and the
underwriters of its initial public offering.
On Jan. 29, 2008, a second purported stockholder class-action
complaint, captioned, "Kelley v. ShoreTel, Inc., et al.," was
filed in the U.S. District Court for the Northern District of
California against the same defendants.
Both complaints purport to bring suit on behalf of those who
purchased the company's common stock pursuant to its initial
public offering on July 3, 2007. Both complaints purport to
allege claims for violations of the federal securities laws and
seek unspecified compensatory damages and other relief (Class
Action Reporter, June 23, 2008).
The lawsuits were consolidated, and a consolidated amended class
action complaint, captioned In Re ShoreTel, Inc. Securities
Litigation, was filed on June 27, 2008. The consolidated
complaint purports to bring suit on behalf of those who
purchased the company's common stock pursuant to the initial
public offering on July 3, 2007 and purports to allege claims
for violations of the federal securities laws. The consolidated
complaint seeks unspecified compensatory damages and other
relief.
On Feb. 2, 2009, the Court issued an order granting the
company's motion to dismiss the complaint but granted the
Plaintiffs 30 days to file an amended complaint (Class Action
Reporter, Feb. 23, 2009).
A second consolidated amended class action complaint was
subsequently filed on March 2, 2009.
The consolidated action is purportedly brought on behalf of those
who purchased the company's common stock pursuant to the initial
public offering on July 3, 2007, purports to allege claims for
violations of the federal securities laws, and seeks unspecified
compensatory damages and other relief.
ShoreTel, Inc. -- http://www.shoretel.com/-- is a provider of
Internet protocol telecommunications systems for enterprises.
The Company's systems are based on its distributed software
architecture and switch-based hardware platform, which enable
multi-site enterprises to be served by a single
telecommunications system. ShoreTel's solution consists of
ShoreGear switches, ShorePhone IP telephones and ShoreWare
software applications. It provides its systems to enterprises
across all industries, including to small, medium and large
companies, and public institutions. Its enterprise customers
include multi-site Fortune 500 companies. As of June 30, 2007,
ShoreTel had sold its IP telecommunications systems to over
5,000 enterprise customers, including CNET Networks, Robert Half
International, SEGA, Wedbush Morgan Securities, and the City of
Oakland, California.
SMITH & WESSON: Consolidated Securities Suit Still in Discovery
---------------------------------------------------------------
Discovery is ongoing in a consolidated securities class action
lawsuit against Smith & Wesson Holding Corporation, according to
the company's Sept. 9, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter period ended
July 31, 2009.
The company, its Chairman of the Board, its Chief Executive
Officer, and its former Chief Financial Officer were named in
three similar purported securities class-action lawsuits. The
complaints in these actions, which have been consolidated
into one action, were brought individually and on behalf of all
persons who purchased securities of our company between June 15,
2007 and Dec. 6, 2007.
The consolidated suit is Hwang, et al. v. Smith & Wesson Holding
Corporation, et al., Case No. 07-cv-30238 (D. Mass.) (Ponsor,
J.).
The plaintiffs seek unspecified damages for alleged violations
of Section 10(b) and Section 20(a) of the Exchange Act.
The company has filed a Motion to Dismiss the litigation. A
hearing was held on the company's motion to dismiss on Jan. 12,
2009. On March 26, 2009, the motion was granted as to the
company's Chairman of the Board and denied as to the remaining
defendants.
Trial is scheduled to begin on Feb. 7, 2011.
Representing the plaintiffs are:
Jeffrey C. Block, Esq.
Berman DeValerio Pease Tabacco Burt & Pucillo
One Liberty Square, 8th Floor
Boston, MA 02109
Telephone: 617-542-8300
Fax: 617-542-1194
E-mail: jblock@bermanesq.com
- and -
David A. Rosenfeld, Esq.
Coughlin Stoia Geller Rudman & Robbins LLP
58 South Service Road, Suite 200
Melville, NY 11747
Phone: 631-367-7100
Fax: 631-367-1173
E-mail: drosenfeld@csgrr.com
Representing the defendants are:
John A. Sten, Esq.
Greenberg Traurig, LLP
One International Place
Boston, MA 02110
Telephone: 617-310-6283
Fax: 617-310-6001
E-mail: stenj@gtlaw.com
- and -
Francis D. Dibble, Jr., Esq.
Bulkley, Richardson & Gelinas, LLP
1500 Main Street, Suite 2700
P.O. Box 15507
Springfield, MA 01115-5507
Telephone: 413-272-6246
Fax: 413-272-6804
E-mail: fdibble@bulkley.com
Smith & Wesson Holding Corporation -- http://smith-wesson.com/
-- is a manufacturer and exporter of firearms. The company
manufactures an array of pistols, revolvers, tactical rifles,
hunting rifles, black powder firearms, handcuffs, and firearm-
related products and accessories for sale to a variety of
customers, including gun enthusiasts, collectors, hunters,
sportsmen, competitive shooters, protection focused individuals,
law enforcement agencies and officers, and military agencies in
the United States and worldwide. It manufactures these products
at its facilities in Springfield, Massachusetts; Houlton, Maine,
and Rochester, New Hampshire. The company also markets
shotguns. In addition, the company pursues opportunities to
license its name and trademarks to third parties for use in
association with their products and services.
TRAFIGURA: Claims Vindication in Abidjan Toxic Waste Litigation
---------------------------------------------------------------
Reuters reports from London that international commodities trader
Trafigura said on Sunday it had reached a settlement with
thousands of people in the Ivory Coast who said they had fallen
ill from toxic waste dumped around the economic capital Abidjan.
Trafigura said in an e-mailed statement received by Reuters that
lawyers representing the 31,000 claimants had accepted that
experts were unable to identify a link between the slops
deposited in 2006 and any deaths, miscarriages, still births or
other serious injuries.
"This settlement completely vindicates Trafigura," company
director Eric de Turckheim said in the statement.
Details of the settlement were not disclosed, Reuters relates,
adding that a class action had been scheduled to be heard in a
court in London next month.
Coverage of this matter previously appeared in the Class Action
Reporter on Oct. 2, 2008.
The claimants are represented by:
Martyn Day, Esq.
Leigh Day & Co
Priory House
25 St. John's Lane
London EC1M 4LB UNITED KINGDOM
Telephone: 020 7650 1200
Fax: 020 7253 4433
ULTA SALON: Nov. 16 Hearing Set for $3.75M Securities Settlement
----------------------------------------------------------------
The Honorable Robert W. Gettleman will convene a fairness
hearing on Nov. 16, 2009, at 10:00 a.m., to consider the
proposed $3,750,000 settlement in In Re Ulta Salon, Cosmetics &
Fragrance, Inc., Securities Litigation, Case No. 07-7083 (N.D.
Ill.).
In December 2007 and January 2008, three putative securities
class-action complaints were filed against the company and
certain of its current and then-current executive officers. Each
suit alleges that the prospectus and registration statement
filed pursuant to the company's initial public offering
contained materially false and misleading statements and failed
to disclose material facts. Each suit claims violations of
Sections 11, 12(a)(2) and 15 of the U.S. Securities Act of 1933,
and the two later filed suits added claims under Sections 10(b)
and 20(a) of the U.S. Securities Exchange Act of 1934, as well
as the associated Rule 10b-5.
On March 18, 2008, the suits were consolidated and plaintiffs in
Mirsky v. Ulta Salon, Cosmetics & Fragrance, Inc. et al., Case
No. 07-07083, were appointed lead plaintiffs.
The lead plaintiffs filed their amended complaint in May 2008,
alleging no new violations of the securities laws not asserted
in the prior complaints. It adds no new defendants and drops
one of the then-current officers as a defendant.
On May 29, 2009, the company and its primary insurance carrier
engaged in a mediation with counsel representing the putative
class. Although defendants continue to deny plaintiffs'
allegations, in the interest of putting this matter behind it,
the company and its insurer have reached a tentative settlement
with plaintiffs, subject to final approval by the Court.
On Aug. 7, 2009, the Court entered an order preliminarily
approving the settlement, approving the form and manner of notice
to putative class members, and setting a final hearing to
determine whether to approve the settlement on Nov. 16, 2009.
All amounts to be paid under the tentative settlement will be
paid out of proceeds of the company's directors and officers
liability insurance coverage, according to its Sept. 10, 2009,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Aug. 1, 2009.
Valley Forge Administrative Services, Inc., has set up a
specialized Web site at http://www.ultaclaims.com/to provide
claimants with information about the litigation and claims
process.
The plaintiffs are represented by:
Lori Ann Fanning, Esq.
Miller Law LLC
115 South LaSalle Street, Suite 2910
Chicago, IL 60603
Phone: 312-332-3400
Fax: 312-676-2676
E-mail: LFanning@MillerLawLLC.com
- and -
Carol V. Gilden, Esq.
Cohen Milstein Hausfeld & Toll, PLLC
190 S. LaSalle Street, Suite 1705
Chicago, IL 60603
Phone: 312-357-0370
Fax: 312-357-0369
E-mail: cgilden@cmht.com
- and -
Deborah R. Gross, Esq.
Law Offices of Bernard M. Gross, P.C.
The Wanamaker Building
100 Penn Square East, Suite 450
Philadelphia, PA 19107
Phone: 215-561-3600
E-mail: debbie@bernardmgross.com
The defendants are represented by:
Sean M. Berkowitz, Esq.
Latham & Watkins LLP
233 South Wacker Drive
5800 Sears Tower
Chicago, IL 60606
Phone: 312-876-7700
Fax: 312-993-9767
E-mail: sean.berkowitz@lw.com
Ulta Salon, Cosmetics & Fragrance, Inc. -- http://www.ulta.com/
-- is a beauty retailer that that provides one-stop shopping for
prestige, mass and salon products and salon services in the
United States.
ULTA SALON: Defends Store Managers' Employment Suit in Calif.
-------------------------------------------------------------
Ulta Salon, Cosmetics & Fragrance, Inc. defends a putative
employment class action lawsuit in State Court in California,
according to its Sept. 10, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Aug. 1,
2009.
In July 2009, the lawsuit was filed against the company and
certain unnamed defendants in California.
The suit alleges that Ulta misclassified its store General
Managers and Salon Managers as exempt (from the Fair Labor
Standards Act and California Labor Code).
The suit seeks to recover damages and penalties as a result of
this alleged misclassification.
On Aug. 27, 2009, the company filed its answer to the lawsuit and
on Aug. 31, 2009, the company moved the action to Federal Court.
Ulta Salon, Cosmetics & Fragrance, Inc. -- http://www.ulta.com/
-- is a beauty retailer that that provides one-stop shopping for
prestige, mass and salon products and salon services in the
United States.
UNITED STATES: Lawsuit Seeks to Expand House of Representatives
---------------------------------------------------------------
"On first blush," The Wall Street Journal's Law Blog Newsletter
says, "it strikes us as a wildly ambitious stunt: to challenge
the constitutionality of the structure of the House of
Representatives through a lawsuit. But this is America, land of
the wild challenge, the big dreamin' lawsuit, the constitutional
challenge. Without 'em, frankly, we'd hardly have any need for
Law Blogs."
Last week, a group called Apportionment.us filed a lawsuit,
Clemons, et al. v. U.S. Dep't of Commerce, et al., Case No.
09-CV-104 (N.D. Miss.), on behalf of five people, one resident
from each of the following states: Montana, Delaware,
Mississippi, South Dakota, and Utah. The quintet's complaint:
that their votes carry far less weight in the House of
Representatives than do those from residents of other sates, like
Rhode Island and Iowa.
The Law Blog explains that the group alleges this is the case
because the population variance between the most under-
represented congressional district in the nation and most over-
represented district exceeds 80%. For example, according to the
complaint, Montana has one representative for every approximately
905,000 people while its neighbor to the south, Wyoming, has one
representative for approximately every 495,000 people. (The suit
deals only with the House, not the Senate where, of course,
residents of Montana have far more representation, per capita,
than do residents of nearly every other state.)
The group's demand: that the House of Representatives be ordered
to add to its current roster of 435 members.
A copy of the complaint is available at http://is.gd/3qAFM
A press release from Apportionment.us distributed via PR Newswire
is available at http://is.gd/3qBfK
The New York Times' coverage of the suit is available at
http://www.nytimes.com/2009/09/18/us/politics/18baker.html?_r=1&hp
The Plaintiffs are represented by:
Michael P. Farris, Esq.
c/o Patrick Henry College
One Patrick Henry Circle
Purcellville, VA 20132
- and -
Phil R. Hinton, Esq.
Wilson, Hinton & Wood, P.A.
P.O. Box 1257
Corinth, MS 38835-1257
WHOLE FOODS: Suit Claims Grocer Doesn't Honor 10% Volume Discount
-----------------------------------------------------------------
Courthouse News Service reports that Whole Foods Market
California does not honor its advertised 10 percent discount for
"volume purchases," a class action claims in Los Angeles Superior
Court.
New Securities Fraud Cases
IMMERSION CORP: Barroway Files Shareholder Suit in N.D. Calif.
--------------------------------------------------------------
Notice is hereby given that a class action lawsuit was filed in
the United States District Court for the Northern District of
California on behalf of purchasers of securities of Immersion
Corporation (Nasdaq: IMMR) between May 3, 2007 and June 30, 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 Immersion and certain of its officers and
directors with violations of the Securities Exchange Act of 1934.
Immersion develops, manufactures, licenses, and supports a range
of hardware and software technologies, and products that enhance
digital devices with touch interaction. More specifically, the
Complaint alleges that the Company failed to disclose and
misrepresented the following material adverse facts known to
defendants or recklessly disregarded by them: (1) that
Immersion's revenue recognition procedures with respect to its
Medical line of business were not in accordance with Generally
Accepted Accounting Principles ("GAAP"); (2) that Immersion's
reported revenue and earnings were overstated because of the
Company's accounting irregularities; (3) that, as a result of the
foregoing, Immersion's financial statements were materially false
and misleading at all relevant times; and (4) that, as a result
of the foregoing, Immersion's statements about its financial
well-being were lacking in any reasonable basis when made.
As a result of defendants' false and misleading statements,
Immersion stock traded at artificially inflated prices during the
Class Period, reaching a high of $20.50 per share on July 13,
2007. Subsequently, in February 2008, Immersion announced a
correction of its income tax expense for its interim 2007
results, causing the Company's stock to drop somewhat, but the
stock continued to trade at artificially inflated levels due to
the Company's reported profitability. Then, on July 1, 2009,
before the market opened, the Company issued a press release
announcing that the Audit Committee of the Company's Board was
conducting an internal investigation into certain previous
revenue transactions in its Medical line of business. On this
news, Immersion's stock dropped over 23% from a close of $4.94
per share on June 30, 2009 to a close of $3.80 per share on
July 1, 2009.
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 November 2, 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: Darren J. Check, Esq.
David M. Promisloff, Esq.
Barroway Topaz Kessler Meltzer & Check, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: 610-667-7706
E-mail: info@btkmc.com
OMNITURE CORP: Kendall Files Fraud Suit in Utah State Court
-----------------------------------------------------------
Kendall Law Group filed a class action lawsuit against Omniture
(NASDAQ: OMTR) and company executives over the recent takeover
announcement of Omniture by Adobe Systems for $1.8 billion.
The class action complaint, filed in the 4th District Court of
Utah County, alleges that the company and its insiders breached
their fiduciary duties to shareholders. First, the merger
agreement makes veiled reference to certain compensation
arrangements between Adobe and company insiders. In fact,
Omniture CEO Joshua James has a secured a position with Adobe
after the merger. Second, the merger agreement has support
agreements and a "top up" provision, which has the practical
effect of requiring only 45% of Omniture's publicly held shares
to effectuate the short form merger. Third, Omniture and its
executives have agreed to onerous deal protection devices in the
merger agreement, such as a $64 million termination fee; a "no
solicitation" clause; and a matching rights provision. These
devices seek to make Adobe's takeover offer a foregone
conclusion.
Defendants include the company, Omniture, its CEO Joshua James,
and members of the Board of Directors. The plaintiffs include
Shailen Lodhia, who is a long term Omniture investor with
significant experience in Omniture's industry, as owner of
ShailenLodhia.com.
Kendall Law Group has significant experience in shareholder class
actions. Led by a former federal judge and US Attorney, the firm
has the credentials to take on complicated shareholder class
actions. To learn more about this action and your rights as an
Omniture shareholder, contact:
Hamilton Lindley, Esq.
Kendall Law Group LLP
3232 McKinney, Ste. 700
Dallas, TX 75204
Telephone: (214) 744-3000
Fax: (214) 744-3015
E-mail: hlindley@kendalllawgroup.com
Web: http://www.kendalllawgroup.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
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Information contained herein is obtained from sources believed to
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The CAR subscription rate is $575 for six months delivered via
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are $25 each. For subscription information, contact Christopher
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