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/raid1/www/Hosts/bankrupt/CAR_Public/090929.mbx C L A S S A C T I O N R E P O R T E R Tuesday, September 29, 2009, Vol. 11, No. 192 Headlines APPLE: Minn. iPhone User Sues For Not Having MMS by "Late Summer" AT&T WIRELESS: Class Action Over AT&T Premium Phones Revived BUSCH ENTERTAINMENT: Sea World Workers Lodge Overtime Complaint CORUS BANKSHARES: Nov. 13 Hearing Scheduled on Motion to Dismiss DEERE & CO: Trial Underway in Brubaker Retiree Litigation LOWES INC: Overtime Settlement Contemplates $9.8 Mil. for Lawyers NATIONWIDE PROPERTY: Auto Rental Fee Claim Forms Sent to Class OCHSNER HEALTH: Sued for Mislabeling & Losing Track of Embryos PEROT FAMILY: Suits Consolidated; Motion to Dismiss Next Month STATE FARM: Suit Claims Wrong Reimbursement Policy for Shingles TEXAS INDUSTRIES: Crestmore Chrome Claims Now Total 2,500 TEXAS INDUSTRIES: Oro Grande Chrome Claims Now Total 270 TORONTO-DOMONION: Visa Card Holders Receive Rebate Notices VARIAN INC: Settles Suits Opposing Aglient Deal for $625,000 New Securities Fraud Cases PROSHARES ULTRA: Bernstein Liebhard Files Complaint in S.D.N.Y. ULTRASHORT FINANCIALS: Berger & Montague Files Suit in S.D.N.Y. ********* APPLE: Minn. iPhone User Sues For Not Having MMS by "Late Summer" ----------------------------------------------------------------- Dan Nosowitz at Gizmodo.com reports that a class-action lawsuit identified as Case File No. 23423 has been filed by Kyle Irving, a Minneapolis, Minn., iPhone owner user, against Apple and AT&T for failing to provide MMS by "late summer" as promised. MMS for the iPhone, Mr. Nosowitz relates, came out after Labor Day. AT&T WIRELESS: Class Action Over AT&T Premium Phones Revived ------------------------------------------------------------ Jeff Gorman at Courthouse News Service reports that a California appeals court reinstated a class action accusing AT&T Wireless Services of selling premium cell phones that were useless. Joshua Morgan and a group of California consumers sued AT&T, alleging fraud and consumer law violations. They said AT&T sold them premium phones but then upgraded the network, rendering the premium phones useless. The trial court ruled for AT&T, stating that the plaintiffs did not identify an actionable misrepresentation in their 47-page complaint. The 2nd District Court of Appeal in Los Angeles reversed the dismissal, finding that the class members alleged sufficient causes of action for fraud and violations of the Unfair Competition Law and Consumers Legal Remedies Act. "Plaintiffs assert that AT&T sold an expensive product that needed a specific service to operate and implied that it would provide that service for some years . . . and that plaintiffs and other class members were deceived because AT&T failed to disclose it would essentially 'turn off' the service within two years," Justice Wilhite wrote. A copy of the appellate court's slip opinion in Morgan, et al. v. AT&T Wireless Services, Inc., No. B206788 (Cal. App., 2d Dist.), is available at: http://www.courtinfo.ca.gov/opinions/documents/B206788.PDF The trial court proceeding is Morgan, et al. v. AT&T Wireless Services, Inc., No. BC318474 (Calif. Super. Ct., Los Angeles Cty.) (Chaney, J.). BUSCH ENTERTAINMENT: Sea World Workers Lodge Overtime Complaint --------------------------------------------------------------- Courthouse News Service reports that Sea World San Diego faces a class-action overtime complaint in San Diego Superior Court. A copy of the Complaint in Fox, et al. v. Busch Entertainment Corp. dba Sea World San Diego, et al., Case No. 37-2009-00098964- CU-OE-CTL (Calif. Super. Ct., San Diego Cty.), is available at: http://www.courthousenews.com/2009/09/25/EmploySea.pdf The Plaintiffs are represented by: Glenn C. Nunes, Esq. THE NUNES LAW GROUP 15760 Ventura Blvd., Suite 860 Encino, CA 91436 Telephone: 818-783-7965 - and - Christopher J. Hamner, Esq. HAMNER LAW OFFICES, LP 15760 Ventura Blvd., Suite 860 Encino, CA 91436 Telephone: 818-386-0444 CORUS BANKSHARES: Nov. 13 Hearing Scheduled on Motion to Dismiss ---------------------------------------------------------------- As previously reported in the Class Action Reporter, during the first quarter of 2009, Corus Bankshares, Inc., and Mr. Robert J. Glickman, the Company's former Chief Executive Officer, were named as defendants in a purported class action lawsuit filed in the U.S. District Court for the Northern District of Illinois alleging violations of federal securities laws. In April 2009, a second purported securities class action lawsuit was filed in the Northern District of Illinois against Corus and Mr. Glickman and adding as additional defendants Tim H. Taylor and Michael E. Dulberg. Later in April 2009, two additional securities class actions were filed in the Northern District of Illinois against Corus and Messrs. Glickman, Taylor, and Dulberg. One of the two most recent lawsuits also added as additional defendants members of the Company's Board of Directors, specifically Messrs. Joseph P. Glickman, Robert J. Buford, Kevin R. Callahan, Rodney D. Lubeznik, Michael J. McClure, and Peter C. Roberts. These four lawsuits: -- Jones v. Corus Bankshares, Inc., et al., Case No. 09-cv-01538 (N.D. Ill., filed Mar. 11, 2009) (Bucklo, J.); -- Brady v. Corus Bankshares, Inc., et al., Case No. 09-cv-02154 (N.D. Ill., filed Apr. 7, 2009); -- Kinney v. Corus Bankshares, Inc., et al., Case No. 09-cv-02443 (N.D. Ill., filed Apr. 22, 2009); and -- Chan v. Corus Bankshares, Inc., et al., Case No. 09-cv-02429 (N.D. Ill., filed April 22, 2009); were brought on behalf of shareholders who purchased the Company's common stock between January 25, 2008 and January 30, 2009, allege primarily that the defendants violated the federal securities laws by disseminating materially false and misleading statements during the above-described period. The lawsuits seek unspecified damages. Corus and the individual defendants filed an unopposed motion to reassign the related, second-filed case to the judge assigned to the first-filed lawsuit, and that motion was granted. Subsequently, the other two cases were also reassigned to this judge. On June 17, 2009, the court entered an order naming a lead plaintiff for the consolidated cases and approving lead plaintiff's choice of counsel. The court gave the lead plaintiff leave to file a consolidated, amended complaint and ordered that all other complaints would be dismissed upon the filing of the consolidated, amended complaint. The lead plaintiff filed its consolidated, amended complaint on August 3, 2009 naming only Corus and Messrs. Glickman and Taylor as defendants. Defendants intend to file a motion to dismiss the complaint. The court has set a briefing schedule on that motion and has scheduled the case for further status and ruling on the motion on November 13, 2009. Because these lawsuits were recently filed and there are significant uncertainties involved in any potential class action litigation, Corus says in its Form 10-Q delivered to the Securities and Exchange Commission on Sept. 25, 2009, management is unable to predict the outcome of the purported class action lawsuits and therefore cannot currently reasonably determine the estimated future impact on the financial condition or results of operations of the Company. Corus and the individuals named intend to vigorously defend these lawsuits. In the consolidated action, the Plaintiffs are represented by: Lori Ann Fanning, Esq. Marvin Alan Miller, Esq. MILLER LAW LLC 115 South LaSalle Street, Suite 2910 Chicago, IL 60603 Telephone: (312) 332-3400 Fax: (312) 676-2676 E-mail: LFanning@MillerLawLLC.com Mmiller@millerlawllc.com - and - Sarah R. Holloway, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 100 Pine Street, Suite 2600 San Diego, CA 92101 Telephone: 415-288-4545 E-mail: sholloway@csgrr.com - and - Danielle Suzanne Myers, Esq. John J. Rice, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS, LLP 655 W. Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: dmyers@csgrr.com jrice@csgrr.com Corus Bankshares and Messrs. Glickman and Taylor are represented by: Michael Jon Gill, Esq. Michele Louise Odorizzi, Esq. David D. Pope, Esq. John Joseph Tharp, Jr. MAYER BROWN LLP 71 South Wacker Drive Chicago, IL 60606 Telephone: (312) 782-0600 DEERE & CO: Trial Underway in Brubaker Retiree Litigation --------------------------------------------------------- Jennifer DeWitt at Davenport, Iowa's Quad-City Times reports that the first week of a bench trial before the Honorable Charles Wolle is over and another week of testimony and argument is expected in Brubaker, et al. v. Deere & Company, Plan Administrator and Named Fiduciary of the John Deere Health Benefit Plan for Salaried Employees, et al., Case No. 08-00113 (S.D. Iowa). Ms. DeWitt's report is available at http://is.gd/3GLlA LOWES INC: Overtime Settlement Contemplates $9.8 Mil. for Lawyers ----------------------------------------------------------------- As reported in the Sept. 25, 2009, edition of the Class Action Reporter, a Los Angeles Superior Court judge gave final approval to a class action overtime pay settlement involving Lowes Home Improvement which calls for a maximum payment of $29.5 million. A copy of the settlement agreement is available from FindLaw at http://is.gd/3Iy4y The settlement agreement indicates that class counsel will be asking the Court to award them $9.8 million in compensation. The Plaintiffs are represented by: Stanley D. Saltzman, Esq. Louis M. Marlin, Esq. Marcus J. Bradley, Esq. MARLIN & SALTZMAN 29299 Can Wood Street, Suite 208 Agoura Hills, CA 91301-1555 Telephone: 818-991-8080 - and - Robert Parris, Esq. R. REX PARRIS LAW FIRM 963 West Avenue J Lancaster, CA 93534-3428 Telephone: 661-949-2595 Lowe's is represented by: Phillip J. Eskenazi, Esq. HUNTON & WILLIAMS LLP 550 South Hope Street, Suite 2000 Los Angeles, CA 90071 Telephone: 213-532-2000 NATIONWIDE PROPERTY: Auto Rental Fee Claim Forms Sent to Class -------------------------------------------------------------- Epiq Systems, Inc., the Claims Administrator in Van Horn, et al. v. Nationwide Property and Casualty Insurance Company, et al., Case No. 08-CV-605 (N.D. Ohio) (Gwin, J.), has distributed claim forms to potential class members. As reported in the Class Action Reporter, the lawsuit is about whether Nationwide breached the contract with its policyholders by prematurely terminating the car rental benefits that it owed its policyholders when it makes an "offer" to settle its automobile policyholders' total loss claims. The litigation covers anyone who was insured by Nationwide Property between Oct. 2, 1993 and Feb. 10, 2009. Additional information about the litigation and proposed settlement is available at http://nationwideclassaction.com/ The Class is represented by: Brian S. Kabateck, Esq. Richard L. Kellner, Esq. KABATECK BROWN KELLNER LLP 644 South Figueroa Street Los Angeles, California 90017 Phone: (213) 217-5000 Fax: (213) 217-5010 - and - Austin Tighe, Esq. FEAZELL & TIGHE LLP 6300 Bridgepoint Parkway, Suite 220 Austin, Texas 78730 Phone: (512) 372-8100 Fax: (512) 372-8140 - and - Alberto R. Nestico, Esq. KISLING, NESTICO & REDICK LLC 3200 W. Market Street, Suite 300 Akron, Ohio 44333 Phone: (330) 869-9007 Fax: (330) 869-9008 Defense Counsel is: Michael H. Carpenter, Esq. CARPENTER LIPPS & LELAND LLP 280 Plaza, Suite 1300 280 North High Street Columbus, OH 43215 OCHSNER HEALTH: Sued for Mislabeling & Losing Track of Embryos -------------------------------------------------------------- Bigad Shaban, a WWL-TV Eyewitness News reporter in New Orleans, reports that a class action lawsuit was filed last week against Ochsner Health Systems Center for mislabeling and losing track of embryos for its in vitro fertilization program. The class-action lawsuit was filed on a couple's behalf and seeks damages for the loss or destruction of their embryos, past and future medical expenses, loss of enjoyment of life and keen mental anguish, fear, embarrassment, humiliation, and emotional distress. Friday, Mr. Shaban reports, Ochsner issued a public apology. "We are disappointed in ourselves in what we have learned to date. We are deeply sorry for the concerns, anxiety and fear we know this causes our patients," said Dr. Patrick Quilan, Ochsner CEO. The Plaintiffs are represented by: Kara H. Samuels, Esq. GAINSBURGH, BENJAMIN, DAVID, MEUNIER & WARSHAUER, LLC 2800 Energy Centre, 1100 Poydras Street New Orleans, LA 70163-2800 Telephone: 504-522-2304 Fax: 504-528-9973 PEROT FAMILY: Suits Consolidated; Motion to Dismiss Next Month -------------------------------------------------------------- Brendan Case and Gary Jacobson at The Dallas Morning News report that two lawsuits against The Perot Family Trust and others related to the collapse of the $2.5 billion Parkcentral Global Hub Ltd. hedge fund have been consolidated and a motion to dismiss is expected next month. The two lawsuits over who is responsible and if anyone's legally liable for the hedge fund's downfall are: -- Levine Capital Ltd. v. The Perot Family Trust, et al., Case No. 09-cv-00826 (N.D. Tex., filed May 4, 2009); and -- Southern Avenue Partners, L.P. v. The Perot Family Trust, et al., Case No. 09-cv-00765 (N.D. Tex., filed Apr. 27, 2009). Messrs. Case and Jacobson relate that the defense team, led by: Barry F. McNeil, Esq. HAYNES & BOONE, LLP 2323 Victory Avenue, Suite 700 Dallas, TX 75219 Telephone: 214.651.5580 has until next month to file a motion to dismiss the case. Mr. McNeil promised that his filing would be "darn persuasive." "In my judgment, the lawsuit is just frivolous," Mr. McNeil told Messrs. Case and Jacobson. The Plaintiffs are represented by: Darren J. Robbins, Esq. James I. Jaconette, Esq. COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: 619-231-1058 - and - Joel M. Fineberg, Esq. R. Dean Gresham, Esq. Fineberg / Gresham 3811 Turtle Creek Blvd., Suite 1900 Dallas, TX 75219 Telephone: 214-219-8828 - and - Ellen A. Presby, Esq. PRESBY LAW OFFICE 10000 North Central Expressway, Suite 400 Dallas, TX 75231 Telephone: 214-890-4045 STATE FARM: Suit Claims Wrong Reimbursement Policy for Shingles --------------------------------------------------------------- Courthouse News Service reports that State Farm "violates the uniform building code adopted in virtually every state in the country" by paying for only "spot" coverage of shingles, a class action claims in Kansas City, Mo., Federal Court. A copy of the Complaint in O'Neal, et ux. v. State Farm Fire & Casualty Company, Case No. 09-cv-00778 (W.D. Mo.), is available at: http://www.courthousenews.com/2009/09/25/Insure.pdf The Plaintiffs are represented by: John J. Schirger, Esq. Stephen R. Miller, Esq. Matthew W. Lytle, Esq. MILLER SCHIRGER, LLC 800 W. 46th Street, Suite 630 Kansas City, MO 64112 Telephone: 816-561-6500 - and - Michael D. Pospisil, Esq. John M. Edgar, Esq. John F. Edgar, Esq. EDGAR LAW FIRM, LLC 1032 Pennsylvania Ave. Kansas City, MO 64105 Telephone: 816-531-0033 TEXAS INDUSTRIES: Crestmore Chrome Claims Now Total 2,500 --------------------------------------------------------- Texas Industries, Inc., disclosed last week that five more lawsuits have been filed in 2009 against the company by individuals alleging personal injury and wrongful death because of exposure to chrome 6 and other toxic or harmful substances in the air, water and soil caused by emissions from the company's Crestmore plant. The plaintiffs allege causes of action that vary somewhat from suit to suit, but typically include, among other things, negligence, intentional and negligent infliction of emotional distress, trespass, public and private nuisance, strict liability, willful misconduct, fraudulent concealment, wrongful death and loss of consortium. The plaintiffs generally request, among other things, general and punitive damages, medical expenses, loss of earnings, property damages and medical monitoring costs. Some of the suits include additional defendants, such as predecessor owners of Riverside and the owner of another cement plant located approximately four miles from the Crestmore plant. As reported in the Class Action Reporter on July 21, 2009, Texas Industries, Inc.'s subsidiary, Riverside Cement Co., continues to defend a purported class-action complaint styled, Virginia Shellman, et al. v. Riverside Cement Holdings Company, et al., Case No. _________ (Calif. Super. Ct., Riverside Cty.). Lawsuits on behalf of approximately 2,500 individual plaintiffs have been filed against Texas Industries in Riverside County, Calif., to date. While Shellman proceeds, all other cases filed in Riverside County are stayed. The Shellman action purports to be a class action for medical monitoring for a putative class defined as individuals who were allegedly exposed to chrome 6 emissions from the company's Crestmore cement plant. The complaint alleges an increased risk of future illness due to the exposure to chrome 6 and other toxic chemicals. The suit requests, among other things, punitive and exemplary damages and establishment and funding of a medical testing and monitoring program for the class until their exposure to chrome 6 is no longer a threat to their health. Texas Industries, Inc. -- http://www.txi.com/-- is a supplier of heavy construction materials in the United States through its three business segments: cement, aggregates and consumer products. The company's cement segment produces gray portland cement and specialty cements. Its cement production and distribution facilities are concentrated primarily in Texas and California. The company's aggregates segment produces natural aggregates, including sand, gravel and crushed limestone, and specialty lightweight aggregates. Its consumer products segment produces primarily ready-mix concrete and, to a lesser extent, packaged products. The company is a supplier of natural aggregates and ready-mix concrete in Texas and northern Louisiana, and to a lesser extent, in Oklahoma and Arkansas. TEXAS INDUSTRIES: Oro Grande Chrome Claims Now Total 270 -------------------------------------------------------- Texas Industries, Inc., disclosed last week that it knows of 270 lawsuits filed against the company by individuals alleging personal injury and wrongful death because of exposure to toxic chemicals at its Oro Grande, Calif., cement plant. Texas Industries disputes these claims. Prior to the filing of the lawsuits, the air quality management district in whose jurisdiction the plant lies conducted air sampling from locations around the plant. None of the samples contained chrome 6 levels above 1.0 nanogram per cubic meter. Texas Industries, Inc. -- http://www.txi.com/-- is a supplier of heavy construction materials in the United States through its three business segments: cement, aggregates and consumer products. The company's cement segment produces gray portland cement and specialty cements. Its cement production and distribution facilities are concentrated primarily in Texas and California. The company's aggregates segment produces natural aggregates, including sand, gravel and crushed limestone, and specialty lightweight aggregates. Its consumer products segment produces primarily ready-mix concrete and, to a lesser extent, packaged products. The company is a supplier of natural aggregates and ready-mix concrete in Texas and northern Louisiana, and to a lesser extent, in Oklahoma and Arkansas. TORONTO-DOMONION: Visa Card Holders Receive Rebate Notices ---------------------------------------------------------- CBC News reports that Toronto-Dominion Bank has recently mailed rebate notices to its clients who opened Visa credit card accounts before Sept. 1, 2001, and to businesses that opened accounts before June 1, 2003. The rebates, which are credited to cardholders' accounts, are part of a $55-million class action settlement approved by the Ontario Superior Court of Justice in Cassano, et al. v. The Toronto-Dominion Bank, Court File No. 97-CV-1208598 CP (Ont. Super. Ct. J.) (Cullity, J.), on July 9, 2009, that requires TD to pay $11 million to members of the class action. The suit stems from allegations that TD charged cardholders "undisclosed, inadequately disclosed or unauthorized fees or charges in respect of debits and credits incurred on their TD Visa accounts in a foreign currency," according to literature from the company that accompanies the rebate notice. According to Windsor, Ont.-based lawyer, Harvey Strosberg, Esq., at Sutts, Strosberg, LLP, who represented the plaintiffs in the class action proceeding, TD charged cardholders a 1% foreign currency fee without properly informing them of the charge. TD Visa denies any wrongdoing in the case. A TD Visa customer service representative told CBC News Friday that the average rebate amount per person will be around $8. All eligible TD Visa cardholders were automatically entered in the class action unless they chose to opt out last year. TD Visa customers who have questions are advised to call 1-800-983-8472. Information about the class action can also be found at http://www.tdvisaclassaction.com/ VARIAN INC: Settles Suits Opposing Aglient Deal for $625,000 ------------------------------------------------------------ On September 25, 2009, Varian, Inc., Agilent Technologies, Inc., and Cobalt Acquisition Corp, a wholly owned subsidiary of Agilent entered into a memorandum of understanding regarding the settlement of purported class action lawsuits that were filed on behalf of Varian stockholders following the announcement of the Agreement and Plan of Merger, dated as of July 26, 2009, by and among the Varian, Agilent and Cobalt. The Merger Agreement contemplates the merger of Cobalt with and into Varian, with Varian surviving as a wholly owned subsidiary of Agilent. As reported in the Class Action Reporter on August 7 and 17, 2009, several purported stockholder class actions were filed in the Superior Court for the County of Santa Clara in connection with the announcement of the proposed Merger. Two other complaints were subsequently filed, and all of the cases were consolidated as In re Varian, Inc. Shareholder Litigation. The plaintiffs in the complaints, which named as defendants Varian and its board of directors as well as Agilent and Cobalt, generally alleged that Varian's directors, in approving the proposed Merger, breached fiduciary duties owed to the Company's stockholders because they failed to take steps to maximize the value to the Company's public stockholders and failed to disclose adequate information in the proxy statement for the Merger. The complaints further alleged that Varian, Agilent and Cobalt aided and abetted the alleged breach of fiduciary duties. The Complaints sought class certification, damages and certain forms of equitable relief, including enjoining the consummation of the Merger. Varian, the individual defendants, Agilent and Cobalt continue to believe the claims to be without merit. Nevertheless, without admitting any liability or wrongdoing, the defendants have agreed in principle to settle the Litigation in order to avoid the potential cost and distraction of continued litigation and to eliminate any risk of any delay to the Merger posed by the Litigation. Pursuant to the settlement anticipated by the parties' agreement in principle, plaintiffs' counsel may seek fees and costs of up to $625,000, subject to Court approval. The settlement is subject to execution and delivery of a stipulation of settlement and other definitive documentation, confirmatory discovery, the closing of the Merger, notice to stockholders, and Court approval. If the settlement becomes effective, the Litigation will be dismissed in its entirety with prejudice. Pursuant to the terms of the settlement, Varian has agreed to make available certain additional information to its stockholders, and has done so in a Form 8-K delivered to the Securities and Exchange Commission on Sept. 25, 2009. New Securities Fraud Cases PROSHARES ULTRA: Bernstein Liebhard Files Complaint in S.D.N.Y. --------------------------------------------------------------- The law firm of Bernstein Liebhard LLP filed a class action lawsuit on September 25, 2009, in the United States District Court for the Southern District of New York, on behalf of all persons who purchased or otherwise acquired shares in the UltraShort ProShares Financials fund (NYSE: SKF), an exchange- traded fund offered by ProShares Trust, pursuant or traceable to ProShares' false and misleading Registration Statement, Prospectuses, and Statements of Additional Information issued in connection with shares of the SKF Fund. The Class is seeking to pursue remedies under Sections 11 and 15 of the Securities Act of 1933. The complaint names ProShares, ProShare Advisors LLC, SEI Investments Distribution Co., Michael L. Sapir, Louis M. Mayberg, Russell S. Reynolds, III, Michael Wachs, and Simon D. Collier, as defendants. ProShares sells its Ultra and UltraShort ETFs as "simple" directional plays. As marketed by ProShares, Ultra ETFs are designed to go up when markets go up; UltraShort ETFs are designed to go up when markets go down. The SKF Fund is one of ProShares' UltraShort ETFs. The SKF Fund seeks investment results that correspond to twice the inverse (-200%) daily performance of the Dow Jones U.S Financials Index ("DJFIX"), which measures the performance of the real estate sector of the U.S. equity market. Accordingly, the SKF Fund is supposed to deliver double the inverse return of the DJFIX, which fell approximately 52.2 percent from January 2, 2008, through December 17, 2008, ostensibly creating a profit for investors who anticipated a decline in the U.S. financials market. In other words, the SKF Fund should have appreciated by over 104 percent during this period. However, the SKF Fund only appreciated approximately 2.2 percent during this period. The complaint alleges the Defendants violated the Securities Act by failing to disclose the following risks, inter alia, in the Registration Statement: (1) if SKF Fund shares were held for a time period longer than one day, the likelihood of catastrophic losses was huge; and (2) the extent to which performance of the SKF Fund would inevitably diverge from the performance of the DJFIX -- i.e., the overwhelming probability, if not certainty, of spectacular divergence. Plaintiff in the SKF Action seeks to recover damages on behalf of all Class members who purchased or otherwise acquired shares of ProShares SKF. If you purchased or otherwise acquired ProShares SKF shares, and either lost money on the transaction or still hold the shares, you may wish to join in the action to serve as lead plaintiff. In order to do so, you must meet certain requirements set forth in the applicable law and file appropriate papers no later than October 20, 2009. The current deadlines for the SRS and SKF cases to move for lead plaintiff are as follows: SRS Fund -- October 5, 2009 SKF Fund -- October 20, 2009 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. Under certain circumstances, one or more class members may together serve as lead plaintiff. Your ability to share in any recovery is not, however, affected by the decision whether or not to serve as a lead plaintiff. You may retain Bernstein Liebhard LLP, or other counsel of your choice, to serve as your counsel in this action. If you purchased or otherwise acquired shares in any of the funds listed above, and either lost money on the transaction or still hold the shares, please call our office to discuss your rights. If you would like to discuss the SKF or SRS Actions, claims concerning any leveraged ProShares funds, or if you have any questions concerning this Notice, please contact Christian Siebott or Joseph R. Seidman, Jr. at (877) 779-1414. Bernstein Liebhard has pursued hundreds of securities and consumer cases and recovered approximately $2 billion for its clients. It has been named to "The National Law Journal's" "Plaintiffs' Hot List" in each of the last six years. You can view a copy of the SKF or SRS complaints online at http://www.bernlieb.com/or obtain it from the court. Christian Siebott, Esq. Joseph R. Seidman, Jr., Esq. Bernstein Liebhard LLP 10 East 40th Street New York, New York 10016 Telephone: (877) 779-1414 http://www.bernlieb.com/ ULTRASHORT FINANCIALS: Berger & Montague Files Suit in S.D.N.Y. --------------------------------------------------------------- Berger & Montague, P.C. filed a class action lawsuit on September 25, 2009, in the United States District Court for the Southern District of New York, on behalf of all persons who purchased or otherwise acquired shares in the UltraShort Financials ProShares Fund (the "SKF Fund"), an exchange-traded fund offered by ProShares Trust, pursuant or traceable to ProShares' false and misleading Registration Statement, Prospectus, and Statements of Additional Information issued in connection with the SKF Fund's shares. The Class is seeking to pursue remedies under Sections 11 and 15 of the Securities Act of 1933. If you sustained substantial losses on your purchases of the SKF Fund and would like to consider serving as lead plaintiff, or have any questions about the lawsuit, please contact Barbara A. Podell, Esq., of Berger & Montague, P.C., at 888-891-2289, or via email at bpodell@bm.net. Lead Plaintiff motion papers must be filed no later than October 20, 2009. A Lead Plaintiff is a court-appointed representative who acts on behalf of other class members in directing the litigation. If you are a member of this class, you can view a copy of the complaint online at http://www.bergermontague.com/ The complaint names ProShares, ProShares Advisors LLC, SEI Investments Distribution Co., Michael L. Sapir, Louis M. Mayberg, Russell S. Reynolds, III, Michael Wachs, and Simon D. Collier, as defendants. ProShares sell its UltraShort ETFs like the SKF Fund, as "simple" directional pays. As marketed by ProShares, UltraShort ETFs are designed to go up when markets go down. The SKF Fund seeks investment results that correspond to twice the inverse (-200%) daily performance of the Dow Jones U.S. Financials Index ("DJFI"), which measures the performance of the financial services industry of the U.S. equity market. The complaint alleges that, although ProShares represents that the SKF Fund delivers double the inverse return of the DJFI, the Fund is defective as a directional play or a hedge. For example, from September 15, 2008 through October 31, 2008, which was a period of extreme financial tumult in the U.S. financials markets, the DJFI fell 17.37%. The SKF Fund should have appreciated by 34.74%, according to Defendants' representations, but it actually fell 5.98% during this period. Therefore, SKF performed nearly the opposite of how it was represented and marketed. The complaint alleges the Defendants violated the Securities Act by failing to disclose that the SKF Fund is altogether defective as a directional investment play and fails to perform anywhere near investors' reasonable expectations. Defendants failed to disclose the following risks in the Registration Statement: (i) the mathematical probability that SKF's performance will fail to track the performance of the DJFI over any period longer than a single trading day; (ii) that greater volatility experienced by the DJFI will result in SKF underperforming the DJFI by a material amount; (iii) that SKF is not a directional play on the performance of financial stocks, but instead is dependent on the volatility and path the DJFI takes over any time period greater than a single day; (iv) that SKF was not a simple investment that could be used over time to hedge against a downturn in financial stocks; and (v) that based upon the mathematics of compounding and the volatility of the DJFI, SKF was highly unlikely to achieve its stated investment objectives over time periods longer than a single trading day. For more information about this case and a more thorough explanation of the Lead Plaintiff selection process, please contact: Sherrie R. Savett, Esq. Barbara A. Podell, Esq. Phyllis M. Parker, Esq. Eric Lechtzin, Esq. Kimberly A. Walker, Investor Relations Manager BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: 215-875-3000 Berger & Montague, founded in 1970, is a pioneer in class action litigation. The firm's approximately 60 attorneys concentrate their practice in complex litigation, including securities fraud and corporate governance, antitrust, civil rights, consumer protection and environmental and mass torts, and have recovered billions of dollars for consumers and investors. ********* 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 * * *