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/raid1/www/Hosts/bankrupt/CAR_Public/091117.mbx C L A S S A C T I O N R E P O R T E R Tuesday, November 17, 2009, Vol. 11, No. 227 Headlines AARP: Accused of Misrepresenting Medical Insurance Coverage ABBOTT MEDICAL: Contact Lens Solution Purchasers' Class Certified ATLANTIC RECORDING: Judge Sides With RIAA in 'Sham' Litigation BROWN GROUP: Proposed Payment Plan in Colo. Chemical Release Suit BURGER KING: NFA Files Class Action Suit Over Maximum Pricing CHEVRON: 'Crude' Documentary Examines Class Action Lawsuit CISCO OIL: S.D. Ga. Orders Public Notice of Fuel Fraud Proceeding CITIBANK: Class Action Sought in R.I. Credit Card Rate Lawsuit CITY OF CHARLOTTE: Report on Builders' Class Action Settlement CITY OF HEATH: Sued, with Redflex, for Traffic Ticket Refunds CITY OF MENASHA: Notice to Holders of Steam Utility Revenue Bonds FACEBOOK: Kershaw Cutter Investigating Social Networking Games HORIZON LINES: Del. Ct. Dismisses Securities Class Action Suit INFINEON TECHNOLOGIES: Rules DRAM Class Certification Appropriate KIA MOTORS: Hagens Berman Investigates Defective Kia Air Bags MAIL BOXES ETC: Opt-Out Notices Sent to 3,000 Franchisees MARSH & MCLENNAN: Settles Class Action Lawsuits for $435 Million NEW MOTION: Preliminary Settlement Approved for 6 Million Users NEW ORLEANS: La. App. Ct. Okays School Worker Class Certification PRESSURE SENSITIVE LABELS: Plaintiff Recoveries Total $46.5 Mil. STATE FARM: Calif. Shop Owners Intent on Pursing Class Action * New U.K. Legislation Will Allow Consumer Classes to Sue Banks New Securities Fraud Cases BOEING CO: Dreamliner Optimism Leads to Securities Class Action HEMISPHERX BIOPHARMA: Dyer & Berens Files Complaint in E.D. Pa. HEMISPHERX BIOPHARMA: Holzer Holzer Files Complaint in E.D. Pa. STEC INC: Abbey Spanier Files Securities Complaint in C.D. Calif. * PwC Sees Decrease in Securities Class-Action Suits ********* AARP: Accused of Misrepresenting Medical Insurance Coverage ----------------------------------------------------------- Jon Hood at ConsumerAffairs.com reports that AARP is taking more heat over marketing of one of its insurance plans, as a Texas couple files a class action lawsuit claiming that ads led them to believe the group's Medical Advantage Plan -- which is no longer being sold through AARP -- was a "primary insurance plan," rather than one providing limited coverage for crucial medical care. James and Alison Halperin received a packet touting the Medical Advantage Plan in early 2008, and were so excited that they dropped their existing policy and signed up. Shortly thereafter, Alison was diagnosed with breast cancer and informed that she would need costly surgery. In case that wasn't bad enough, the Halperins were treated to another kick in the gut when they found out their new AARP-provided plan wouldn't cover the urgent procedure. The Halperins' policy, provided by UnitedHealth Group, is a so- called limited benefit plan: its coverage is limited to a specific dollar amount. Typical insurance plans, by contrast, cover a percentage of all health-related costs, regardless of how high the bill ends up being. Unfortunately for the Halperins, AARP's plan is especially stingy in its coverage of surgical procedures, providing anywhere from a few hundred to $10,000, depending on what kind of surgery is needed. The plan's appeal lies in its relatively low premiums, attractive for consumers who might have trouble attaining a traditional plan or who are struggling in the still-gloomy economy. The plans are targeted to consumers between 50 and 64. An AARP spokesman said the plans were "not designed to be comprehensive insurance, nor should they be communicated in this manner." The Halperins accuse Washington, D.C.-based AARP of violating the city's Consumer Protections Procedure Act. Their complaint alleges that "AARP has preyed upon Plaintiffs and thousands of Americans over age 50 by luring unsuspecting consumers in need of affordable health care to enroll in AARP's health insurance program." Plan Canceled The Halperins' allegations are only the latest in a series of claims that AARP misled consumers as to the extent of the plan's coverage. Last year, Sen. Chuck Grassley of Iowa sent a letter to AARP's then-CEO Bill Novelli voicing concerns that consumers who purchased the plan might not realize that it only provides limited coverage. Grassley also sounded the alarm about Essential Plus Health Insurance, a second AARP policy with similar terms as the Medical Advantage Plan. "Insurance is supposed to limit your exposure to the potentially high cost of a serious illness," Grassley told USA Today. "These plans do the opposite." The ensuing firestorm led AARP to stop offering the plans, technically known as "fixed-cash benefit indemnity plans." Unkind year All in all, 2009 has not been kind to AARP, Mr. Hood continues. Approximately 60,000 seniors have canceled their memberships since July, apparently in protest of the group's support for health insurance reform. A competing, conservative-backed group - creatively named the American Seniors Association - has been trying to woo AARP members over to its side. While AARP originally refused to back a specific bill, the group last week endorsed the Affordable Health Care for America Act, the bill currently snaking its way through Congress. A copy of the Complaint in Halpern, et ux. v. AARP, et al., Case No. 09-cv-02104 (D.C.), is available at: http://www.courthousenews.com/2009/11/13/AARP.pdf The Plaintiffs are represented by: David S. Wachen, Esq. SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A. 12505 Park Potomac Ave., 6th Floor Potomac, MD 20854 Telephone: 301-230-5200 - and - Jeffrey U. Carton, Esq. Jerome Noll, Esq. MEISELMAN, DENLEA, PACKMAN, CARTON & EBERZ, P.C. 1311 Mamaroneck Ave. White Plains, NY 10605 Telephone: 914-517-5000 - and - Austin Tighe, Esq. FEAZELL & TIGHE LLP 6300 Bridgepoint Parkway Bridgepoint 2, Suite 20 Austin, TX 78730 Telephone: 512-372-8100 ABBOTT MEDICAL: Contact Lens Solution Purchasers' Class Certified ----------------------------------------------------------------- An Orange County Superior Court Judge has certified a class action against Abbott Medical Optics, Inc., on behalf of all California consumers who purchased a contact lens solution the Centers for Disease Control have linked to a parasitic infection that can cause blindness or the complete loss of an eye. "This decision was made possible by the landmark ruling of the California Supreme Court in May that upheld the rights of consumers to file class action lawsuits to protect themselves against misleading advertising," said plaintiffs' lead trial lawyer Mark Robinson, Esq., at Robinson, Calcagnie & Robinson in Newport Beach. The Supreme Court's ruling in In re Tobacco II cases, No. S147345, reinstated a class action suit by smokers against the tobacco industry. Mr. Robinson argued for tobacco smokers in the case. Orange County Superior Court Judge David C. Velasquez issued the certification ruling Nov. 12 against Santa Ana-based AMO, formerly known as Advanced Medical Optics, which produced Complete(R) MoisturePlus(TM) contact lens solution. The FDA in 2007 directed the company to conduct a Class I recall of the product, an action it reserves for situations in which it is reasonably probable that use of the product will cause serious injury or death. Complete(R) MoisturePlus(TM) was part of the Complete(R) line of eye care products that Abbott Laboratories, Inc., obtained when it acquired Advanced Medical Optics earlier this year for $2.8 billion. The plaintiffs are asking the company to refund to all California consumers the money they paid to purchase Complete(R) MoisturePlus(TM). Lazar vs. Advanced Medical Optics, Case No. 07 CC 01296 (Calif. Super. Ct., Orange Cty.), was filed on behalf of all California consumers who purchased Complete(R) MoisturePlus(TM). It alleges that AMO misled consumers into believing the product would effectively "clean" and "disinfect" their contact lenses even though the solution did not disinfect against Acanthamoeba and other harmful organisms that are known to contaminate contact lenses. The Acanthamoeba keratitis infection can inflict terrible pain, rob victims of their vision, cause permanent blindness and, in some cases, can result in the surgical removal of the eye. "This is a truly horrific infection that AMO could have and should have prevented. AMO put all consumers at risk," said Ronald Labriola of Moore Labriola in Newport Beach, California, co-lead counsel for the Class. Labriola also represents over 60 people who suffered significant injuries after using Complete(R) MoisturePlus(TM). "A product manufacturer cannot mislead consumers into believing that a product does something that it does not do, nor can it profit from such misrepresentations," said James Quadra, Esq., at Moscone, Emblidge & Quadra in San Francisco, co-lead counsel for the Class. "Consumers deserve compensation for AMO's conduct." A similar, nationwide class action against AMO is pending in federal court in San Francisco. Consumers who purchased Complete(R) MoisturePlus(TM) and want to participate in either class action should contact: Mark Robinson, Esq. Robinson, Calcagnie & Robinson Telephone: 949-720-1288 Ronald Labriola, Esq. Moore Labriola, LLP Telephone: 949-209-9820 James Quadra, Esq. Moscone, Emblidge & Quadra, LLP Telephone: 415-362-3599 Wendy Fleishman, Esq. Lieff Cabraser Heimann & Bernstein, LLP Telephone: 212-355-9500 Michael Schmidt, Esq. The Schmidt Firm Telephone: 866-223-3784 ATLANTIC RECORDING: Judge Sides With RIAA in 'Sham' Litigation -------------------------------------------------------------- David Kravets at Wired News reports that a judge has dealt a major blow to a proposed class-action lawsuit alleging the Recording Industry Association of America's nearly six-year-old courthouse campaign against file sharers amounted to nothing more than "sham" litigation. The Honorable Anna J. Brown ruled in Andersen v. Atlantic Recording Corp., et al., Case No. 07-cv-00934 (D. Ore.), that the RIAA has the right to bring civil lawsuits and is protected under a legal doctrine allowing special interests to form trade groups to protect their interests. The RIAA, the judge added, had an "objective basis" to bring lawsuits against individuals connected to IP addresses upon which file sharing is occurring. A copy of Judge Brown's 27-page Opinion dated Nov. 12, 2009, is available at: http://www.wired.com/images_blogs/threatlevel/2009/11/andersendecision.pdf "The court, therefore, concludes on this record that plaintiff has not established defendants filed a series of lawsuits based on a policy of initiating legal proceedings without regard to the merits," U.S. District Judge Brown says. Judge Brown's decision, however, did not immediately dismiss a proposed class action to represent the perhaps 30,000 individuals the RIAA has sued, although the decision likely portends as much. "In summary, the court concludes defendant's conduct in initiating the first action against plaintiff is protected by the Noerr-Pennington Doctrine, and, therefore, defendants are entitled to summary judgment with respect to all of plaintiffs claims to the extent they arise out of defendants' initiation of the first action," the judge ruled. She ordered the RIAA and plaintiff's lawyers, by December 1, to report to her what should happen next. The RIAA has maintained that if it won on the claim decided Thursday -- one of four in the lawsuit -- that the entire case should be dismissed. One of the class-action attorneys in the case: Lory Ray Lybek, Esq. LYBECK MURPHY, LLP 7525 SE 24th St., Suite 500 Mercer Island, WA 98040 Telephone: 206-230-4255 does not agree. In a telephone interview with Mr. Kravets, Mr. Lybeck said the court could proceed with a class action, in which the lawsuit's other allegations can be litigated. Those allegations include civil conspiracy, abuse of legal process and negligence. Tanya Andersen of Oregon brought the proposed class action. The RIAA dropped an infringement case against her in 2007 after concluding her hard drive did not contain purloined music tracks as alleged. The RIAA initially claimed a Kazaa directory that linked to her internet-protocol address was unlawfully distributing thousands of songs. A judge awarded her $68,685 in legal fees, and she counter-sued with the proposed class action, alleging the RIAA has engaged in a game of "sham" litigation. BROWN GROUP: Proposed Payment Plan in Colo. Chemical Release Suit ----------------------------------------------------------------- DISTRICT COURT CITY AND COUNTY OF DENVER STATE OF COLORADO CAROL ANTOLOVICH et al., ) ) Plaintiffs. ) v. ) ) BROWN GROUP RETAIL, ) Case Number: 2000CV1021 INCORPORATED,a Pennsylvania ) Corporation, et al., ) ) Defendants. ) NOTICE OF PROPOSED ALLOCATION PLAN FOR CLASS ACTION THIS NOTICE MAY EFFECT YOUR RIGHTS PLEASE READ CAREFULLY TO: (1) ALL PERSONS WHO AS OF MARCH 1, 2000 OWNED OR RESIDED ON REAL PROPERTY WITHIN THE CLASS AREA (AS DEFINED BELOW) SOUTH OF EAST MEXICO AVENUE; AND (2) ALL PERSONS WHO AS OF MARCH 26, 2001, OWNED OR RESIDED ON REAL PROPERTY WITHIN THE CLASS AREA NORTH OF EAST MEXICO AVENUE. The "Class Area," which is within Denver County is defined as follows: NORTHERN BOUNDARY CHERRY CREEK SOUTHERN BOUNDARY EAST EVANS AVENUE EASTERN BOUNDARY SOUTH MONACO PARKWAY WESTERN BOUNDARY SOUTH HOLLY STREET IF YOU DID NOT EXCLUDE YOURSELF FROM THIS CASE BY FORMAL WRITTEN NOTICE AFTER NOTICE OF THIS ACTION WAS SENT IN NOVEMBER 2002, THEN YOU ARE AFFECTED BY THE PROPOSED ALLOCATION PLAN FOR THIS CASE. THE REASONS FOR THIS NOTICE Certain persons approved by the Court to serve as Class Representatives filed a lawsuit on behalf of the people identified above as members of the Class. The lawsuit claimed that industrial chemicals were released into the soil and groundwater at the former Redfield Rifle Scopes Manufacturing Facility at 5800 East Jewell Avenue. The suit claimed that the chemical contamination left the Redfield Rifle Scopes Site and entered the soil and groundwater in and through the Class Area. The suit was filed against Brown Group Retail Inc., the owner of the site and a former operator of the facility, as well as Redfield Rifle Scopes Inc., an operator of the facility. This lawsuit sought to compensate members of the Class for damages they incurred because of the Redfield contamination, based on legal claims for trespass, nuisance, negligence, strict liability, unjust enrichment, and punitive damages. The case was eventually presented to a jury in an approximately three month trial beginning in September 2003. The jury found Brown Group Retail, Inc. liable for negligence and awarded damages to residential property owners after a reduction in the verdict for non-parties. The jury did not award any damages to the non-owner residents who were members of the class. The Plaintiffs appealed the jury determination, the appeals are now final. The amount awarded by the jury, plus certain interest and costs, is now ready to be distributed according to a Proposed Allocation Plan, which the Court has approved preliminarily. Persons and entities that have been identified as members of the Class are being advised by mail of their options with respect to allocation of the amounts available for allocation. This notice is being published because some Class Members may not receive the mailed notice. If you are a member of the Class but have not received mailed information about your options, you should provide your name and current address by calling or writing to the following address and telephone number: Antolovich Class Action The Hannon Law Firm, LLC 1641 Downing Street Denver, Colorado 80218 Telephone: (303) 861-8800 You will then be mailed a more detailed explanation of your options with respect to allocation available for distribution in this lawsuit and be placed on the mailing list for future information regarding this lawsuit. Dated: October 30, 2009 By: Hon. Morris B. Hoffman District Court Judge BURGER KING: NFA Files Class Action Suit Over Maximum Pricing ------------------------------------------------------------- Christa Hoyland at QSRweb.com reports that Burger King's National Franchisee Association (NFA) has filed its second class-action lawsuit against the quick-service burger chain. The first regards the franchisor's attempt to divert funds from a fountain beverage rebate program to Burger King's marketing fund. The second, filed Tuesday on behalf of owners of Burger King restaurants in the United States, concerns Burger King Corporation's "maximum pricing" policy. The lawsuit alleges that BKC is violating the terms of the parties' franchise agreements by purporting to mandate maximum prices for certain products, even though the franchise agreements do not grant BKC the right to set prices. At issue is the company's decision to price its Double Cheeseburger for $1, a price point franchisees voting against on several occasions this summer. National Franchisee Assoc. v. Burger King Corp., Case No. 09-cv- 23435 (S.D. Fla.) (Moore, J.), seeks a declaratory judgment from the court. Specifically, the NFA is asking the court to declare that "BKC does not have the authority under the Franchise Agreements to dictate maximum prices," according to a news release. Burger King believes, however, that it has the right to make such changes. The company provided the following statement: "BKC believes the lawsuit is without merit. The U.S. Court of Appeals for the Eleventh Circuit decided earlier this year that BKC has the contractual right to require franchisee participation in its BK Value Menu program." NFA Disputes Policy The NFA consists of 19 regional franchisee associations, represents more than 80 percent of U.S. franchised Burger King restaurants and serves as the official voice of the BKC franchisee community. The NFA said it filed the lawsuit after unsuccessful attempts to encourage BKC to respect the historic rights of its independent franchisees. The lawsuit states: The dispute between the parties is triggered by the position recently taken by BKC, contrary to decades of practice, that the general language of [the Franchise Agreement] gives it the power to set prices for its independently owned franchises. The NFA is asking the court to declare that the franchise agreements do not grant BKC the right to set prices, as shown by, among other things, the parties' consistent practice and understanding that as independent business owners the franchisees retain the right to set their own menu board prices. "Our franchisee community is united in protecting our entrepreneurial rights as independent business owners, but we are also disappointed that we need to take legal action against our franchisor," said William Harloe Jr., NFA chairman and a Maryland-based franchisee. "The mission statement of the NFA is to preserve the economic well being of all members. After attempts to compromise on maximum pricing were unsuccessful, we have been forced to pursue a judicial resolution of this issue." This is the second class action lawsuit that NFA franchisees have initiated against their franchisor this year. In May 2009, the NFA filed lawsuits against Burger King, Coca-Cola, and Dr. Pepper on behalf of all franchisees. That action seeks a declaratory judgment from the court that the franchisees are the intended third-party beneficiaries under certain soft drink agreements and are entitled to receive their franchisee restaurant operating rebates, in full, as they have since 1990. Mr. Harloe said that the NFA and its member franchisees prefer to resolve the franchisee restaurant operating funds and maximum pricing lawsuits amicably but that circumstances have left no alternative except to pursue legal remedies to questions concerning franchise agreements. CHEVRON: 'Crude' Documentary Examines Class Action Lawsuit ---------------------------------------------------------- Kenneth Turan at Tribune Newspapers reports that "Crude" sounds like the standard "this is an outrage" environmental degradation documentary, the latest in a line that includes "An Inconvenient Truth" and films about the deaths of the oceans, the evaporation of water, the murder of dolphins, even the disintegration of dirt. "Crude" fits that bill, but it is something considerably more interesting as well. The outrage in question is the subject of a class action suit filed by 30,000 residents of Ecuador against Chevron, the world's fifth-largest corporation, alleging that 18 billion gallons of toxic wastewater were dumped into the Amazon between 1972 and 1990, fatally poisoning the land and water and sickening inhabitants. The lawsuit, with a potential cost to Chevron of $27 billion, has been going on for so long (16 years and counting) that the original American oil company in Ecuador, Texaco, was acquired by Chevron and no longer exists. Director Joe Berlinger ("Brothers Keeper," " Metallica") has been working on "Crude" for three years, and though he feared he was coming too late to the story, a verdict is still not in sight. "Crude" begins with a typical back-and-forth. In 2008, news clips show Pablo Fajardo, the lead attorney for the plaintiffs, and his associate, Luis Yanza, receiving the prestigious Goldman Environmental Prize. Then comes Chevron's reaction, as a representative says that the men have in effect made up the story for which they're being honored. What's going on here? Next we see the charismatic Mr. Fajardo back in Ecuador and visiting a tiny Amazon enclave where the residents discuss the progress of the lawsuit. We also spend a great deal of time with a Spanish-speaking environmental lawyer from New York named Steven Donziger, someone who specializes in class action suits and is a key legal adviser to Mr. Fajardo. We see and hear Mr. Donziger in all kinds of privileged situations, even with Joseph Kohn, the Philadelphia attorney whose firm is bankrolling the case and hopes to profit financially if Chevron loses. Mr. Donziger not only discusses legal strategy but works hard to get the kind of publicity that will galvanize public opinion. His courtship of the forceful Trudie Styler, the co-founder, along with her husband, rock star Sting, of the Rainforest Foundation, is a study in real-world political action. Chevron's strategy is twofold. First is the culture of denial. To see apparently sincere Chevron representatives flat-out contradict everything the plaintiffs are saying shows the power stonewalling has to, at the very least, create doubt. Because that strategy doesn't work as well in Ecuador, where the damage is visible and hard to talk away, Chevron is ready with a moving-target series of fallback positions: Nothing was done that wasn't permitted by law, the Ecuadorean government signed off on a cleanup, most of the damage was done by the state-owned Petroecuador. Chevron also likes to claim that the only reason the suit was filed in the first place is because greedy U.S. attorneys are after the company's money. It's true that the plaintiffs wouldn't have a prayer without American money and celebrity involvement, but does that mean their claims are any less just? It's still a David-and-Goliath story. What's different is that David now has some choice stones, Mr. Turan writes. CISCO OIL: S.D. Ga. Orders Public Notice of Fuel Fraud Proceeding ----------------------------------------------------------------- Teresa Stepzinski at The Florida Times-Union reports that public notices soon will appear nationwide announcing a class-action lawsuit on behalf of past customers of two Camden County truck stops and a gas station originally owned by Fairley Cisco. Last week, Senior U.S. District Judge Anthony Alaimo directed the lawyers in Smith, et al. v. Georgia Energy USA, LLC, et al., Case No. 08-cv-00020 (S.D. Ga.), to place public notice of lawsuit in newspapers including The Times-Union, Savannah Morning News and USA Today. Notice must also be placed in major trucking industry publications, and Web sites available to the general public, Alaimo ruled. The notice will run once a week for four consecutive weeks beginning no later than the end of the month. The lawyers then must advertise the notice on at least two top Jacksonville and Coastal Georgia radio stations, Judge Alaimo ordered The notice must state that individuals or entities that bought fuel from any of the Cisco stations from Jan. 1, 2005, to Feb. 12, 2008, might be members of the class action. It also must briefly explain the suit, and provide information about consumers' rights in the case, according to Judge Alaimo's order. The lawsuit was filed by plaintiffs Jonathan Smith, Streamline Logistics LLC, Betty Padgett, B&L Express Inc., John Darnell, Linda Fifield and Henry Edwards on behalf of themselves and others unnamed on Feb. 14, 2008, in U.S. District Court at Brunswick. Their lawyers said in court documents that at least 300 people have contacted them about joining the lawsuit, which seeks $9,999,000. The suit is just one of three cases bearing the Cisco name. In addition to being a defendant in the class-action suit, Cisco, 67, of St. Marys, is among several defendants indicted in a federal fraud case and a state racketeering complaint involving the three businesses. Although separate, the three cases contain similar accusations: that fuel customers were cheated deliberately and systematically at the Cisco Travel Plazas at Exit 1 and Exit 6 on Interstate 95 and the Cisco Express convenience store and gas station. Cisco and his co-defendants have pleaded not guilty to the indictment. They also have denied any wrongdoing or liability in the class action suit and the racketeering complaint, court records show. Closed since January, the three fuel stops and stores will be auctioned Dec. 1 on the Camden County Courthouse steps for Alabama businessman Michael Nicholson, who had bought them from a Tennessee bank. The Plaintiffs are represented by: C. Dorian Britt, Esq. Robert Bartley Turner, Esq. SAVAGE, TURNER, PINSON & KARSMAN, PC P.O. Box 10600 Savannah, GA 31412 Telephone: 912-231-1140 - and - Jeremy S. McKenzie, Esq. TATE LAW GROUP, LLC 2 East Bryan Street, Suite 600 Savannah, GA 31401 Telephone: 912-234-3030 - and - Nathan T. Williams, Esq. CLARK & WILLIAMS, PC #5 St. Andrews Ct. Brunswick, GA 31527 Telephone: 912-264-0848 Cisco Oil, Inc., Cisco Travel Plaza, Inc., Cisco Travel Plaza, Inc. II, Althea Cisco Shave and Tammy Cisco Walker are represented by: Steven Blackerby, Esq. Terry L. Readdick, Esq. Laura E. Roberts, Esq. BROWN, READDICK, BUMGARTNER, CARTER, STRICKLAND & WATKINS, LLP P.O. Box 220 Brunswick, GA 31521-0220 Telephone: 912-264-8544 Fairley Cisco is represented by: Peter M. Degnan, Esq. Gregory B. Mauldin, Esq. Kyle G.A. Wallace, Esq. ALSTON & BIRD, LLP One Atlantic Center 1201 W. Peachtree St. Atlanta, GA 30309-3424 Telephone: 404-881-7000 - and - Stephen Gunn Dillard, Esq. Terry A. Dillard, Esq. DILLARD & DILLARD P.O. Box 898 Waycross, GA 31502-0898 Telephone: 912-285-2915 - and - Alex L. Zipperer, III, Esq. ZIPPERER, LORBERBAUM & BEAUVAIS P.O. Box 9147 Savannah, GA 31412 Telephone: 912-232-3770 Georgia Energy USA, LLC, Georgia Petro USA, LLC, Georgia Petro II USA, LLC, Global Energy USA, LLC, Kingsland Management II, LLC, Kingsland Management, LLC, Biju Abraham, and Jack Ghazi are represented by: James B. Durham DURHAM, MCHUGH & DUNCAN, PC P.O. Box 2177 Brunswick, GA 31521 Telephone: 912-264-1800 CITIBANK: Class Action Sought in R.I. Credit Card Rate Lawsuit -------------------------------------------------------------- Paul Grimaldi at the Providence Journal reports that a Rhode Island woman is suing Citibank, claiming the financial giant is trying to squeeze money out of its credit-card customers in advance of changes in federal law due to take place in February 2010. Murphy v. Citibank (South Dakota), N.A., Case No. 09c-v-00541 (D. R.I.) (Smith, J.), was filed on Nov. 10, 2009, by: Peter N. Wasylyk, Esq. 307 Chalkstone Avenue Providence, RI 02908 Telephone: 401-831-7730 Telephone: 401-861-6064 E-mail: pnwlaw@aol.com on behalf of Portsmouth resident Michol K. Murphy, and states that Citibank has violated the terms of her credit-card agreement by jacking up the annual percentage rate on her account without cause. Mr. Wasylyk is asking the court to certify the case as a class-action lawsuit. The lawsuit follows in the wake of an August case Mr. Wasylyk filed against Citizens Financial Group on behalf of a Woonsocket man who claims that ATM withdrawals and debit transactions are a trap into which unwary customers fall. That lawsuit -- Hunt v. RBS Citizens, N.A. et al., Case No. 09-cv-00377 (D. R.I.) (Lisi, J.) -- which also seeks certification as a class action, is still pending. Citizens is represented by: Robert G. Flanders, Jr., Esq. HINCKLEY, ALLEN & SNYDER LLP 50 Kennedy Plaza, Suite 1500 Providence, RI 02903 Telephone: 401-274-2000 Fax: 401-277-9600 E-mail: rflanders@haslaw.com Consumers such as Murphy and Hunt have been complaining loudly about the alleged abusive practices of financial institutions, leading to the passage in May 2009 of the federal Credit Card Accountability, Responsibility, and Disclosure Act. In July 2009, Citibank notified Murphy that it was raising the variable annual percentage rate on her card to 29.99 percent, despite that her account was in good standing and that her original credit agreement does not expire until April 30, 2010. CITY OF CHARLOTTE: Report on Builders' Class Action Settlement -------------------------------------------------------------- In Vision Ventures Construction Services, Inc. v. City of Charlotte, et al., Case No. 09-CVS-3551 (N.C. Super. Ct., Mecklenburg Cty.), a Plaintiff Class of building contractors and construction companies asserted that they were improperly charged with a privilege tax in excess of $10.00 per year during three prior years of tax collection. After negotiation between the parties, a settlement was reached and the court approved the terms of the settlement. Pursuant to the settlement agreement, the following payments were made: The total amount of the settlement was $2,617,734 representing all privilege taxes paid in excess of $10.00 per year during the 2006, 2007 and 2008 tax years. There were 2,502 individuals or businesses which were members of the class. Over 90% of class members have been located and paid settlement benefits as of October 15, 2009. 248 class members have yet to be located. A total of $2,092,280.40 of a total of $2,205,304.58 has been paid in settlement benefits to members of the class (a 94% ratio). Attorneys' fees of $391,865.96 were paid to Plaintiffs' counsel which represented a 15% percent award as approved by the court for prosecuting the case and implementing the settlement. Plaintiffs' counsel was also reimbursed for $2,261.19 in administrative costs. Excess tax payments reflected by Class members who opted out of the class settlement totaled $5,354.00. The Defendant City of Charlotte was reimbursed $12,948.27 in administrative costs. Unclaimed settlement funds in the amount $113,024.19 are being distributed as provided by Chapter 116B of the North Carolina General Statutes. The Plaintiff Class was represented by: Jameson P. Wells, Esq. WELLS DAISLEY RABON, P.A. 1616 Cleveland Avenue Charlotte, NC 28203-4855 Telephone: (704) 315-2497 Fax: (704) 347-0684 E-mail: jwells@wdrlawfirm.com http://www.wdrlawfirm.com CITY OF HEATH: Sued, with Redflex, for Traffic Ticket Refunds ------------------------------------------------------------- Jessie Balmert at The Newark Advocate reports that a Pickerington, Ohio, attorney filed a class-action complaint against the city of Heath and RedflexTraffic Systems, seeking reimbursement of all citations doled out since April 6. Mitchell Tallan filed his complaint Thursday, two days after Heath voters approved a charter amendment banning traffic cameras in the city. Unlike other camera-related actions filed against Heath, Mr. Tallan is seeking damages and full reimbursement of all "illegal funds" obtained from speeding tickets from April 6 to Thursday, according to the filing. Mr. Tallan, who filed on behalf of all others who were unjustly cited by the cameras, discussed several reasons why the cameras violated his rights. But the class action might not last because Mr. Tallan said Tuesday he plans to modify the complaint to include just his citation. The action claims the citations violated due process and abused police powers, among other complaints. The filing also states that the prosecution of the citations was inconsistent and discriminatory, according to court records. "Ordinances were passed primarily to generate revenue for the city of Heath rather than to promote safety and therefore constitute a misuse and abuse of police powers," according to the filing. The lawsuit stems from a speeding ticket Mr. Tallan received Oct. 31 for an alleged violation Oct. 25 at the intersection of Ohio 79 and Coffman Boulevard, according to the filing. CITY OF MENASHA: Notice to Holders of Steam Utility Revenue Bonds ----------------------------------------------------------------- Pursuant to Section 21D(a)(3)(A)(i) of the Securities Exchange Act of 1934 (15 U.S.C. Section 78u-4(a)(3)(A)(i)), notice is given that a class action has been filed in which claims are asserted on behalf of all persons or entities who purchased or otherwise acquired City of Menasha, Calumet and Winnebago Counties, Wisconsin, $12,660,000 Taxable Steam Utility Revenue Bond Anticipation Notes, CUSIP Number 586499AA3, due September 1, 2009, from February 1, 2005, to September 1, 2009, and/or Menasha $11,500,000 Taxable Steam Utility Revenue Bond Anticipation Notes, CUSIP Number 586499AB1, due September 1, 2009, from December 1, 2006 to September 1, 2009. Purchasers or holders of the 2005 BANs issued by Menasha are referred to herein as the "2005 Class," and purchasers or holders of the 2006 BANs issued by Menasha are referred to herein as the "2006 Class." The complaint in Lafayette Life Insurance Company, et al., v. City of Menasha, Wisconsin, et al., Case No. 09-CV-00064 (N.D. Ind.) (Springmann, J.), asserts claims under section 10(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78j(b)) and Rule 10b-5 (17 C.F.R. Section 240.10b-5), on behalf of purchasers or holders of the 2005 and/or 2006 BANs during their respective Class Periods. These claims allege that Defendants intentionally or with extreme recklessness misrepresented the truth about the following matters: (1) the viability and terms of Steam Supply Agreements Defendants purportedly had in place; (2) Defendants' ability to repay the 2005 BANs and the 2006 BANs as they became due; (3) the total cost of the steam utility project; (4) Menasha's ability and commitment to issuing bonds or appropriate other funds to pay the 2005 BANs and 2006 BANs; and (5) representations regarding existing contracts, environmental permits and approvals. As a result of these material misrepresentations, the repayment obligations included in the 2005 BANs and 2006 BANs were never satisfied and the Plaintiffs suffered damages therefrom. In addition to the federal securities claims asserted, the complaint also asserts on behalf of the holders of the 2005 and 2006 BANs the following state law claims against the Defendants: (1) violation of various states' securities laws; (2) breach of contract; (3) common law fraud; (4) negligent misrepresentation; (5) unjust enrichment; (6) breach of fiduciary duty; (7) theft by virtue of business; (8) fraudulent transfer; (9) request for accounting of funds; (10) promissory estoppel; and (11) unlawful taking in violation of Article I of the Wisconsin Constitution. Plaintiffs seek to recover damages on behalf of all class members and are represented by Ice Miller LLP, of Indianapolis, Indiana. If you purchased or acquired the 2005 or 2006 BANs during their respective Class Periods you may, not later than 60 days from the date hereof, move the Court to serve as a lead plaintiff, pursuant to Section 21D(a)(3) of the Securities Exchange Act of 1934 (15 U.S.C. Section 78u-4(a)(3)). If you are a holder of the 2005 or 2006 BANs and would like more information about this litigation or your rights as a potential class member, please contact: Michael A. Wukmer, Esq. Jacob R. Cox, Esq. Michael T. McNally, Esq. ICE MILLER LLP One American Square, Suite 2900 Indianapolis, IN 46282-0200 Telephone: (317) 236-2439 E-mail: michael.wukmer@icemiller.com http://www.icemiller.com/ The Defendants are represented by: Brian E Casey, Esq. BARNES & THORNBURG LLP 600 1st Source Bank Center 100 N. Michigan Street South Bend, IN 46601-1632 Telephone: 574-237-1285 FACEBOOK: Kershaw Cutter Investigating Social Networking Games -------------------------------------------------------------- Ryan Tate at Gawker.com reports that Facebook and MySpace might finally pay the price for the big social gaming scandal: At least one law firm is investigating whether to launch a class action suit on behalf of duped users. Sacramento-based Kershaw, Cutter & Ratinoff, LLP, is looking for people who faced "unauthorized charges imposed on Facebook and MySpace users who participate in social games like 'Farmville' and 'Mafia Wars.'" The firm, which said it has launched an investigation into such scams, specializes in class action suits, among other areas. Mike Arrington's TechCrunch has posted a series of articles at http://www.techcrunch.com/2009/10/31/scamville-the-social-gaming-ecosystem-of-hell/ on the issue of sleazy revenue models for online games, exposing the practice of sneaking mobile data subscriptions and pricey "learning CD" packages past players trying to earn online "points." Mafia Wars and Farmville creator Zynga gets a third of its revenue from such "commercial offers," while Facebook in turn gets 10-20 percent of its money from Zynga, according to Arrington. Zynga has yanked some of its ads; Facebook, in turn, has suspended one of Zynga's smaller games. But there's evidence this issue could have been addressed much sooner. TechCrunch found video -- see http://www.youtube.com/watch?v=S7YaVVpK1G4-- shot this past spring in which Zynga's CEO said he "did every horrible thing in the book to, just to get revenues right away." That sounded bad enough when it was reprinted on a tech blog; imagine how it's going to sound in court. HORIZON LINES: Del. Ct. Dismisses Securities Class Action Suit -------------------------------------------------------------- Ben Hallman at The Am Law Litigation Daily reports that a Delaware federal district court judge has dismissed a securities class action against a shipping company and three of its senior officers for failing to show that the officers had made misleading statements about a price-fixing fraud that sent three other executives to prison. In October 2008, three former executives of Horizon Lines, a large commercial shipping company, pled guilty to federal charges that they had orchestrated an illegal price-fixing conspiracy over rates the company charged to ship goods from Puerto Rico to the United States. In the week that followed, Horizon's stock price dipped 38 percent. The lawsuit was brought in 2008 against Horizon, the three officers who pled guilty (and who were sentenced to six-and-a- half years in prison), and three officers who signed off on financial documents and who made public statements about the performance of the company -- Charles Raymond, Mark Urbania, and John Keenan. The plaintiffs tried to link the three officers who admitted to the fraud to the three financial officers who made public statements about the company. Plaintiffs also sought to hold Horizon Lines liable for false and misleading statements as a "controlling person" under the Securities Exchange Act. In dismissing the case, federal district court judge C.J. Bartle ruled that there wasn't sufficient evidence to link the officers who plead guilty to the fraud to the officers who made public statements and who signed off on company financial documents. Further, he wrote, there was no evidence that that the defendants knowingly made untrue statements of material fact. Nor, he noted, did plaintiffs try to link a misleading statement to the three defendants. Paul Lockwood, Esq., of Skadden, Arps, Slate, Meagher & Flom represented Horizon. Joseph Click, Esq., of Blank Rome represented Raymond; Kevin Brady, Esq., and Jeremy Anderson, Esq., of Connolly Bove Lodge & Hutz represented Urbania, and William Lafferty, Esq., of Morris Nichols Arsht & Tunnell represented Keenan. John Browne, Esq., Laurne McMillen, Esq., and Sean O'Dowd, Esq., of Bernstein Litowitz Berger & Grossmann represented the lead plaintiff, the Police and Fire Retirement System of the City of Detroit. INFINEON TECHNOLOGIES: Rules DRAM Class Certification Appropriate ----------------------------------------------------------------- Jim Middlemiss at the Financial Post reports that British Columbia Court of Appeal has overturned a lower court ruling and certified a class action against a group of five technology manufacturers accused of fixing prices on computer memory chips. The court ruled in Pro-Sys Consultants Ltd. v. Infineon Technologies AG that the B.C. Class Proceedings Act should be "construed generously in order to achieve its objectives," which includes behavior modification, improving access to justice and avoiding duplicate court cases. The lower court found that the proposed representative plaintiff for the class did not meet the test and had "irreconcilable conflicts" with other class members when it came to the issues of absorbing any overcharge on the pricing so the court refused to certify. The appeal court noted that a certification hearing "does not involve an assessment of the merits of the claim; rather it focuses on the form of the action in order to determine whether the action can appropriately go forward as a class proceeding." "The appellant was required to show only a credible or plausible methodology" in its evidence, the appeal court ruled in assessing the differences among expert witnesses that testified on issues around the impact on pricing. David Kent, a class-action lawyer at McMillan who represented one of the respondents, said "the bar has been lowered" when it comes to certifying class actions in B.C. He said while the U.S. courts take the approach at certification that judges need to "put their boots on" and "dig in a bit" into the evidence to assess who is right or wrong, the B.C. appeal court is "going in the opposite direction." The ruling is a big win for Vancouver lawyer J.J. Camp, who represented the appellant Pro-Sys. The lawsuit is the latest in a growing number of price-fixing class actions, including a recent Ontario decision involving hydrogen peroxide. The B.C. ruling paves the way for a similar class-action against the memory makers in in Ontario, which has been on hold pending the outcome of this case. An application to certify a Quebec action was dismissed. The responding computer companies included Infineon, Hynix Semiconductor Inc, Samsung Electronics Co. Ltd., Micron Technology Inc. and Elpida Memory, Inc.. They collectively account for more than 76% of the worldwide production of dynamic random access memory (DRAM), which provides high-speed electronic storage and retrieval of information in nearly all computer and telecommunication products used today. Three of the respondents have settled class actions in the U.S. for US$160-million. All of the respondents, with the exception of Micron, which was granted amnesty in exchange for co-operation in the investigation, have pleaded guilty to criminal charges in the U.S. over conspiracy to fix prices internationally and paid fines totaling US$731-million. A number of executives have paid fines or served prison terms. KIA MOTORS: Hagens Berman Investigates Defective Kia Air Bags ------------------------------------------------------------- Hagens Berman Sobol Shapiro has begun an investigation into Kia Motors Corp (000270.KS) and its occupant classification system, or OCS, after claims that adults weighing less than 130 pounds deactivate the air bags in the passenger seat, leaving passengers at significant risk if there's an accident and the air bags don't deploy. The investigation includes all Kia models made between 2006 and 2009. Federal law requires all vehicles to be equipped with front passenger air bags, and problems with the OCS may deprive smaller passengers of any front air bag protection. The OCS is part of the advanced air bag system of a vehicle. These systems use sensors in the passenger seat to determine if the front air bag should be enabled depending on whether the passenger is a child or adult, and there's no way to override the system. HBSS is investigating whether Kia's occupant clarification system fails to correctly detect the presence of smaller adults and deactivates the front air bag for these adult passengers. The law firm is also investigating claims that Kia was aware of the problem and failed to disclose this defect to owners and new purchasers. If you own a Kia manufactured between 2006 and 2009, you can contact Hagens Berman Sobol Shapiro to discuss your options. Owners can e-mail rob@hbsslaw.com or call 602-840-5900 to discuss the investigation. You can also join this investigation at: http://www.hbsslaw.com/kiaairbags HBSS will treat all information shared as confidential. Hagens Berman Sobol Shapiro is a nationally recognized class- action and complex-litigation law firm based in Seattle with offices in San Francisco, Chicago, Boston, Los Angeles and Phoenix. Among recent successes, HBSS negotiated a $300 million settlement in the DRAM memory antitrust litigation, the largest antitrust settlement in U.S. history, recovered $340 million on behalf of Enron employees, and was part of the leadership team in the $3 billion Visa/MasterCard settlement. In pharmaceutical litigation, the firm's recent successes include a $350 million settlement with McKesson, more than $200 million with other parties in drug-pricing litigation, and a $150 million settlement regarding Lupron. HBSS represented Washington and 12 other states against the tobacco industry that resulted in the largest settlement in history. For a complete listing of HBSS cases, visit http://www.hbsslaw.com/ MAIL BOXES ETC: Opt-Out Notices Sent to 3,000 Franchisees --------------------------------------------------------- Janet Sparks at BlueMaumau.org reports that notices have been sent out to approximately 3,000 franchisees of Mail Boxes Etc. and The UPS Store, giving them the option to be a part of a national class action lawsuit against the franchisor or to opt out. They have until December 9, 2009 to send in their election form requesting to be excluded from the class. Otherwise, they will be listed as a class member. The court certified a national class in Morgate LLC v. Mail Boxes Etc., Inc., United Parcel Service, Inc., et al., Case No. BC294647 (Calif. Super. Ct., Los Angeles Cty.), consisting of all franchisees in the US, who operated a Mail Boxes Etc. store and converted to The UPS Store through the Gold Shield Amendment on or before March, 2003, regardless if they are still operating their stores. It also certified a subclass ("the California Sub- class") consisting of all franchisees who meet the above- described criteria and whose centers are or were located in California. Every franchisee who is a member of the California Sub-class is also a member of the Class. The complaint alleges three claims against defendants: negligent misrepresentations; intentional misrepresentations; and misrepresentations based upon disclosures required by the California Franchise Investment Law (CFIL). Plaintiff alleges that the members of the class were misled by false statements and concealment of material facts contained in five documents provided to franchisees during an organized presentation to franchisees by UPS and MBE, known as the "Gold Shield Program." Gold Shield began as a test marketing program after United Parcel Service acquired the Mail Boxes Etc. franchise system, but it soon became the company's approved method of converting MBE stores to UPS's new model. When the franchisor amended its franchise agreements to reflect the changes, franchisee groups responded with lawsuits stating they should have been issued new franchise disclosure documents as a result of the major revisions to the brand and model. The Platinum Shield Association filed its lawsuit in April 2003, representing approximately 150 MBE franchisees, claiming UPS/MBE was in violation of a California franchise statute and common law fraud. Other lawsuits are pending, Ms. Sparks notes. The members of the Class in the California case are represented by: Amy M. Darby, Esq. M. D. Scully, Esq. H. Scott Sirlin, Esq. GORDON & REES, LLP 633 West Fifth Street, Suite 4900 Los Angeles, CA 90071. Telephone: (213) 576-5000 Plaintiffs are seeking the recovery of damages from the MBE defendants. In addition, for the alleged violations of the California Investment Law, they are seeking the option to rescind the Gold Shield amendment of their franchise agreements. MARSH & MCLENNAN: Settles Class Action Lawsuits for $435 Million ---------------------------------------------------------------- Joan E. Solsman at The Wall Street Journal reports that Marsh & McLennan Cos. agreed to pay $435 million to settle class-action shareholder lawsuits without admitting wrongdoing. Marsh & McLennan, one of the world's biggest insurance brokerages, said that while it continues to deny the charges -- stemming from allegations of bid rigging and price fixing by the company's insurance brokerage unit in insurance contracts -- the settlement was in the best interest of the company and its investors. "The resolution of these matters puts the litigation arising from the events of 2004 largely behind us and reduces the company's ongoing legal costs," the company said. The insurance broker agreed to pay $400 million to settle a securities suit and $35 million to settle another suit related to charges under the Employee Retirement Income Security Act. Of the total, $230 million will be covered by insurance. The remainder will be come from cash on hand. The settlement is still subject to court approval in the Southern District of New York. Earlier this month, Marsh & McLennan swung to a third-quarter profit on sharply lower costs, on strength in its risk and insurance-services segment and sharp margin gains, although the consulting business continued to be hurt by the weak economy. NEW MOTION: Preliminary Settlement Approved for 6 Million Users --------------------------------------------------------------- The law firm of Khorrami Pollard & Abir LLP reports that on November 6, 2009, the Honorable Coleman Swart entered an Order granting preliminary approval of a proposed nationwide class action settlement in Allen, et al. v. New Motion, Inc., dba Atrinsic, Inc., et al., Case No. BC386596 (Calif. Super. Ct., Los Angeles Cty.), that would resolve claims of an estimated six million cellular phone users. The action, brought by plaintiff Ladonna Weaver, alleges that New Motion, Inc., violated consumer protection laws by charging consumers' cellular phone bills for monthly subscriptions to various online services or campaigns, without obtaining consumer authorization or consent. New Motion denies these claims. The proposed Settlement Class includes all persons throughout the United States who, from March 3, 2004, through November 6, 2009, were subscribed to one or more of the following services or campaigns operated by New Motion, Inc.: Bid4Prizes, Altnet, Atzmi, Gatorarcade, IMatchUp.com, Zapsters, Ringtone Channel, Mobile Sidewalk, Ringtone.com, MMP3G.com (MX Focus and MM Trivia), Slimlizard, or Q121Mobile. The Settlement provides class members who submit a claim before February 12, 2010, the right to a refund of up to three months of subscription fees (per subscription). For more information on the settlement, including information of how to make an online claim, a settlement Web site has been created by Garden City Group, Inc., at: http://www.newmotionclasssettlement.com/ Inquiries may also be made to the class action law firm Khorrami Pollard & Abir LLP of Los Angeles, California who was appointed as class counsel on behalf of certified settlement class. NEW ORLEANS: La. App. Ct. Okays School Worker Class Certification ----------------------------------------------------------------- Sarah Carr at The Times-Picayune reports that the Louisiana Court of Appeal last week upheld a district court judge's decision that a lawsuit brought by several employees of the New Orleans school system who were fired after Hurricane Katrina can proceed as a class action suit. "This ruling means that 8,500 former New Orleans public school employees . . . will be able to proceed with their claims together (in one lawsuit) instead of having to file thousands of individual lawsuits," the plaintiffs' lead attorney, Willie M. Zanders, said in a prepared statement posted on a Plaintiff- sponsored Web site at http://www.nopsejustice.com/ "We disagree with it, but it is what it is," Bill Aaron, an attorney representing the School Board, told Ms. Carr. He said it will be more inefficient to figure out damages as a class since it will ultimately have to be done on a "case-by-case basis." The appeal court noted that the class probably includes at least 5,000 fired employees, and could be as large as 7,500. Civil District Court Judge Ethel Simms-Julien initially certified the class-action suit nearly a year ago. Mr. Zanders called the 5,000 to 7,500 estimate "conservative." But he added, "we're not going to be hung up on the numbers, we just want to help everyone who is eligible." The defendants, including the Orleans Parish School Board and the state, can now appeal to the Louisiana Supreme Court. Otherwise, the plaintiffs will move forward with trying to prove that the employees were wrongfully terminated, or that the state, which assumed control of Orleans schools after the 2005 hurricane, interfered with the contract between the School Board and its employees by stripping financial resources. "We believe the state played a major part in the termination process," Mr. Zanders said. Mr. Aaron said he wasn't sure at this point whether the School Board or state will choose to appeal to the Supreme Court. But he noted that the court "made it clear and unequivocal that they are not saying the plaintiffs were entitled to win, just that it would be more clear and efficient to handle it as a class action." PRESSURE SENSITIVE LABELS: Plaintiff Recoveries Total $46.5 Mil. ---------------------------------------------------------------- Keating Muething & Klekamp PLL attorney, Richard L. Creighton, Jr., announced that six years of class action antitrust litigation has ended with court approval of two settlements totaling $38.25 million (USD) in what plaintiffs referred to as the "Plant for Paper" deal among competing companies in the international Pressure Sensitive Labelstock industry. The latest settlements bring the total recovered by plaintiffs to $46.5 million. Creighton's client, Bertek Systems, Inc. of Vermont, was one of five plaintiff class representatives in the lawsuit. Bertek Systems is a label converter - a producer of specialty labels. It buys labelstock, the paper product from which labels are made, from various competing manufacturers such as California-based Avery Dennison Corporation, Ohio-based MACtac, and Raflatac which is based in Finland and runs its North American operations out of North Carolina. The class members in the price-fixing lawsuit alleged that, in the mid-1990s, Avery and MACtac were concerned that Raflatac was poised to make serious inroads into the North American labelstock market. The American companies feared Raflatac because it had successfully expanded its market share in Europe by aggressively pricing its products - largely at Avery's expense. Rather than try to compete with Raflatac, Avery and MACtac (together or independently) approached the paper manufacturer UPM-Kymmene Corporation (the Finnish parent company of Raflatac) with an offer to purchase significant quantities of the paper needed to manufacture labelstock from UPM, if UPM would agree to keep Raflatac from building a labelstock manufacturing plant in North Carolina (thus the "Plant for Paper" moniker). The defendant companies never admitted to any wrongdoing and maintained that their actions were legal. The fact that Avery, MACtac, and UPM were communicating about sensitive competition issues came to light in 2002-2003, when UPM attempted to purchase MACtac and merge it with Raflatac. The U.S. Department of Justice reviewed and then subsequently denied permission for the proposed merger. The companies challenged the government's denial of clearance to merge, but a federal judge in Chicago, citing evidence of inappropriate communications, sided with the Department of Justice and blocked the proposed merger. KMK's client, Bertek Systems, filed suit against UPM, Raflatac, Avery, and MACtac in federal court in Philadelphia. Several other label converters filed suits in federal courts in other jurisdictions. The cases were eventually consolidated and sent to the U.S. District Court for the Middle District of Pennsylvania in Scranton. Judge Thomas I. Vanaskie, who presided over the six- year long litigation, certified the case as a class action in 2007. The class plaintiff attorneys in the case reviewed more than four million pages of documents, and from those, singled out a relatively few key documents they alleged proved the defendants conspired to keep a viable competitor out of the North American market. As part of their evidence discovery process, Creighton and other lead counsel travelled across the U.S. and to Helsinki, Finland, to interview and depose witnesses, review documents, and meet with experts. In 2007, UPM and Raflatac agreed to a settlement of $8.25 million to avoid the substantial risks inherent in this type of litigation; as part of the settlement, they agreed to cooperate with the plaintiff attorneys. Earlier this year, Avery agreed to attempt a settlement mediated by Kenneth R. Feinberg, one of the leading mediators in the U.S. Feinberg served as Special Master of the Federal September 11th Victim Compensation Fund and was recently named by the Obama administration as Special Master of Executive Compensation for corporations that received TARP funds. After a long and hard-fought legal battle and intensive negotiations, final settlements were hammered out: Avery agreed to pay $36.5 million, plus up to an additional $500,000 to offset the administrative costs of the class action. MACtac agreed to pay $1.25 million. On September 17, 2009, Judge Vanaskie approved the settlements. The Pressure Sensitive Labelstock class action antitrust case is the 18th antitrust price-fixing case in Creighton's career in which he acted as lead class counsel or co-counsel; combined settlements in these cases have totaled more than $500 million. Additional background, including a case timeline, can be found at: http://www.kmklaw.com/news_pr_detail.aspx?id=207 Richard L. Creighton, Jr., Esq., is a trial attorney with Keating Muething & Klekamp PLL. His practice is concentrated in general civil litigation, with particular emphasis on complex business, antitrust, and tort litigation, including class actions. In recent years, he has served as lead class counsel in several class action cases, including antitrust price-fixing cases. In the business law arena, he has successfully represented a wide variety of clients in contract and/or fraud cases. Creighton also is recognized for his experience in counseling clients and serving as trial counsel in matters involving libel, invasion of privacy, and other First Amendment issues. A licensed instrument rated private pilot, he has successfully represented numerous clients in aviation-related matters, including aviation crash cases and administrative proceedings before the Federal Aviation Administration. Prior to joining Keating Muething & Klekamp PLL, he served as a law clerk to the late Honorable John W. Peck, United States Court of Appeals for the Sixth Circuit. Creighton earned his B.A. from Xavier University, cum laude, and his J.D. from St. Louis University School of Law, cum laude. He can be reached at 513.579.6513 or at rcreighton@kmklaw.com. The law firm of Keating Muething & Klekamp PLL, based in Cincinnati, Ohio, was founded in 1954. KMK has approximately 115 lawyers and a support staff of 150 employees. For the past 55 years, KMK has contributed to the success of many businesses, from Fortune 500 corporations to start-up companies. KMK's mission is to provide high-quality legal counsel to business clients by meeting their identified needs and developing appropriate solutions. Additional information is available at http://www.kmklaw.com/ STATE FARM: Calif. Shop Owners Intent on Pursing Class Action ------------------------------------------------------------- Search-AutoParts.com reports that some 75 California collision repair professionals representing about 40 body shops spent their Thursday evening discussing the details involved in filing a class action lawsuit against State Farm Insurance over alleged steering. The consensus reached at the Nov. 12 gathering was that they should move forward with all deliberate speed. The next step is to continue gathering the evidence and documentation needed to overcome the withering scrutiny that comes with such an important court case. "My intent is to sue the heck out of State Farm; I just want their neck over the barbed wire before I clip it," says industry activist Gene Crozat of G&C AutoBody, who organized the meeting at a Sacramento hotel. A number of shop owners traveled a long distance to be there. The attendees expressed how much they are "frustrated with the current state of affairs and frustrated with steering that just doesn't seem to go away," reports G&C spokesman Peter Bizaca. "They left the meeting feeling good that someone was out there doing something positive," he notes. "They left feeling that they are not alone and that there is hope." "The class action sounds good," says Gary Liu, manager of Bee Automotive Collision Center in San Francisco. "It's something that needs to be done. We've been battling the insurance industry for a long while -- it's like David and Goliath," he points out. "It's hard for a mom and pop shop to fight this battle," Liu continues. "We're going to need help, but we're going to do it." Mr. Liu is particularly pleased that Mr. Crozat and his staff handed out binders filled with information that repairers can use to further pursue their case. The packet includes "instructions on how to get written evidence," such as forms and regulations plus testimonials from G&C customers who have successfully taken State Farm to small claims court. "It was all-encompassing," says Mr. Bizaca as he recounts the agenda. Steering, labor rate surveys and small claims court filings were covered along with contemplating the proposed class action case. "We had shops from all over Northern California," he says. "The tables were filled." Although about 80 shop owners had indicated they would attend, the final tally is still enough to drive home the value of a concentrated effort. "They are ready to participate, but they are aware that it will be difficult," Mr. Bizaca explains. Mainstream media outlets may shine the glare of publicity onto the scenario as the Los Angeles Times and Sacramento Bee each sent reporters to cover the event. "We have the press on top of this," says Mr. Bizaca. A second meeting is to be scheduled in January, set in Orange County to reach repairers throughout the Los Angeles basin and stretching down to the San Diego border region. The Sacramento session stressed that class action lawsuits can be a tough road to navigate, which is why thorough documentation plays such a large role. Two lawyers, Mark Venardi, Esq., and Martin Zurada, Esq., were on hand to present some of the particulars. A united front is imperative, according to Mr. Venardi, who cites a string of unsuccessful class action filings over the years. The burden of proof is strong. Nonetheless, "the legal system is the last potential remedy." Commenting on the trials and tribulations inherent in the longtime shops vs. carriers conflicts within the Golden State marketplace, Zenardi observes that "you can't count on the legislature (and) you can't count on the Department of Insurance -- so what can you do? You can count on yourselves and you can hire a lawyer." California insurance industry representatives, including State Farm executives, have consistently denied that steering takes place, insisting that they strictly adhere to all existing regulations. * New U.K. Legislation Will Allow Consumer Classes to Sue Banks --------------------------------------------------------------- Jill Treanor at The Guardian reports that disgruntled bank customers will be able to band together for the first time to contest unfair terms and overcharging under new rules to be introduced by the U.K. government. Wednesday's Queen's speech, Mr. Treanor reports, will announce legislation that will allow customers to pursue "class action" lawsuits against finance companies. While the practice is commonplace in the U.S., it is almost impossible for customers in Britain to tackle financial services firms for mis-selling their products such as pensions and endownments. The Treasury also intends to hand new powers to the City regulator to allow it to force banks and other financial services firms to compensate customers when large-scale mistakes are discovered. The Financial Services Authority will be given powers of mandatory redress. New Securities Fraud Cases BOEING CO: Dreamliner Optimism Leads to Securities Class Action --------------------------------------------------------------- Kathy Shwiff, writing for Dow Jones Newswires, reports that Boeing Co. faces a possible class-action lawsuit over its long- delayed 787 Dreamliner. The suit, filed on behalf of an institutional investor in federal court in Illinois, accuses Boeing executives and directors of making false and misleading statements between May 4 and June 22 about results of tests on the plane and the company's ability to meet its production schedule. In June, the company postponed the first flight, then scheduled for June 30, because of a need to reinforce an area in the side- body section, according to the suit. Boeing's stock fell 6.5% on June 23 and another 6% the next day, the complaint said. The Dreamliner is now more than two years behind schedule, and Boeing last quarter took a $2.5 billion charge related to development costs associated with the program. The delays have cost the company hundreds of millions of dollars in concessions and penalties to its customers. The Wall Street Journal, citing internal Boeing documents, reported Thursday the company had found another issue in the test plane's composite materials. A Boeing spokesman told Ms. Shwiff Friday that the company hadn't seen the lawsuit and declined to comment on it. HEMISPHERX BIOPHARMA: Dyer & Berens Files Complaint in E.D. Pa. --------------------------------------------------------------- Dyer & Berens LLP filed a class action lawsuit last week in the United States District Court for the Eastern District of Pennsylvania, Civil Action No. 09-cv-5262, on behalf of all purchasers of the securities of Hemispherx Biopharma, Inc. (AMEX: HEB) between February 18, 2009, and October 30, 2009, for violations of the federal Securities Exchange Act of 1934. If you wish to serve as a lead plaintiff, you must move the court no later than 60 days from today. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel: Jeffrey A. Berens, Esq. Dyer & Berens LLP 682 Grant Street Denver, CO 80203 Telephone: (303) 861-1764 E-mail: jeff@dyerberens.com Any member of the putative 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. The complaint alleges that, during the Class Period, defendants misled investors regarding the status of Hemispherx's New Drug Application for Ampligen with the U.S. Food and Drug Administration. Specifically, defendants failed to disclose and misrepresented the fact that the FDA had requested several reports from the Company before the NDA could even be considered, thus delaying the possible approval of Ampligen by several months at a minimum. On November 2, 2009, when the Company belatedly disclosed this information, the per share price of Hemispherx's common stock dropped from $1.45 on the previous day to $1.13, a drop of more than 20%. The next day, one commenter characterized the November 2nd Company "update" as essentially an admission "that its prior public statements were false and misleading." Plaintiff seeks to recover damages on behalf of Hemispherx investors. The plaintiff is represented by Dyer & Berens LLP, which has expertise in prosecuting investor class actions involving financial fraud. The firm's extensive experience in securities litigation, particularly in cases brought under the Private Securities Litigation Reform Act, has contributed to the recovery of hundreds of millions of dollars for aggrieved investors. For more information about the firm, please go to http://www.DyerBerens.com/ HEMISPHERX BIOPHARMA: Holzer Holzer Files Complaint in E.D. Pa. --------------------------------------------------------------- Holzer Holzer & Fistel, LLC filed a class action lawsuit in the United States District Court for the Eastern District of Pennsylvania on behalf of purchasers of Hemispherx Biopharma, Inc. (AMEX: HEB) who purchased shares between February 18, 2009, and October 30, 2009, inclusive. The lawsuit alleges that Hemispherx misrepresented the status of its experimental drug Ampligen. Specifically, the complaint alleges that, among other things, the Company failed to disclose that requests for information from the Food and Drug Administration would delay possible FDA approval of Ampligen by at least several months. If you purchased shares of Hemispherx common stock during the Class Period, you have the legal right to petition the Court to be appointed a "lead plaintiff." A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. Any such request must satisfy certain criteria and be made no later than January 11, 2010. 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. If you are a Hemispherx investor and would like to discuss a potential lead plaintiff appointment, or your rights and interests with respect to the lawsuit, you may contact Michael I. Fistel, Jr., Esq., or Marshall P. Dees, Esq. via email at mfistel@holzerlaw.com, or mdees@holzerlaw.com, or via toll-free telephone at (888) 508-6832. Holzer Holzer & Fistel, LLC -- http://www.holzerlaw.com/-- is an Atlanta, Georgia law firm that dedicates its practice to vigorous representation of shareholders and investors in litigation nationwide, including shareholder class action and derivative litigation. STEC INC: Abbey Spanier Files Securities Complaint in C.D. Calif. ----------------------------------------------------------------- Abbey Spanier Rodd & Abrams, LLP commenced a Class Action lawsuit in the United States District Court for the Central District of California (Case No. 09-cv-01315) on behalf of a class of all persons who purchased or acquired securities of STEC, Inc. (NASDAQ: STEC) between June 16, 2009 and November 3, 2009 inclusive. STEC provides technology solutions and manufactures high performance memory and storage products used in high performance computing. If you would like to discuss this action please contact Nancy Kaboolian at nkaboolian@abbeyspanier.com. The Complaint alleges that Defendants violated the federal securities laws by issuing a series of false and misleading statements during the Class Period thereby artificially inflating the price of STEC securities. More specifically, the Complaint alleges that Defendants misrepresented and failed to disclose (i) that STEC over sold its largest customer more inventory than it required; (ii) the Company overstated the demand for certain products; (iii) that STEC's subsequent revenue and financial results for the following year would be negatively impacted; and (iv) that, as a result, Defendants' statements during the Class Period lacked a reasonable basis. The fraudulent statements made by Defendants during the Class Period artificially inflated STEC's stock price, which enabled Defendants Manouch Moshayedi and Mark Moshayedi to sell 9 million of their personal shares for proceeds of approximately $300 million in a secondary public offering held on August 5, 2009. On November 3, 2009, STEC announced that one of its largest customers, which accounted for 90% of STEC's ZeusIOPS SSD business and which had placed a $120 million order for the second half of 2009, would carry 2009 inventory into 2010, placing STEC's 2010 first quarter results at risk. On this news, shares of STEC fell $9.01 per share, more than 38%, to close on November 4, 2009, at $14.14 per share. Plaintiff seeks to recover damages on behalf of all those who purchased or otherwise acquired STEC securities during the Class Period. If you purchased or otherwise acquired STEC securities during the Class Period and lost money on the transaction or still hold the securities, you may wish to join in the action to serve as lead plaintiff. If you are a member of the class, you may, no later than January 5, 2010, request that the Court appoint you as lead plaintiff. 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 plaintiffs." The attorneys at Abbey Spanier have extensive experience in securities class action cases, and have played lead roles in major cases resulting in the recovery of hundreds of billions of dollars to investors. If you would like to discuss this action or if you have any questions concerning this Notice or your rights as a potential class member or lead plaintiff, you may contact: Nancy Kaboolian, Esq. Abbey Spanier Rodd & Abrams, LLP 212 East 39th St. New York, NY 10016 Telephone: 212-889-3700 E-mail: nkaboolian@abbeyspanier.com * PwC Sees Decrease in Securities Class-Action Suits ---------------------------------------------------- WebCPA.com reports that the number of federal securities class- action lawsuits filed in the first three quarters of 2009 has fallen 25 percent compared to the same period in 2008, according to a new report from PricewaterhouseCoopers. PwC identified 113 cases filed through Sept. 30, 2009, an average of 38 per quarter. If a similar trend continues, the total number of cases for 2009 may only reach the number of cases filed through the first three quarters of 2008. However, while the number of financial-crisis-related cases filed has decreased from those filed in 2008, the percentage of these cases compared to the total number of cases filed remains consistent with 2008, with 44 percent in 2009 and 47 percent in 2008. The report shows an increase of financial-crisis-related filings involving Ponzi schemes, representing approximately 28 percent of such filings. The financial services industry experienced the greatest number of class-action suits, with 52 cases filed, followed by the high- technology and pharmaceutical industries, with a combined total of 29 cases filed. During the third quarter, there was a sharp increase in the number of cases filed in the health care industry. Six cases were filed during the first half of the year, and 13 cases were filed in the third quarter. ********* 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. 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