/raid1/www/Hosts/bankrupt/CAR_Public/100105.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, January 5, 2010, Vol. 12, No. 2
Headlines
AGILENT TECH: Final Approval of Settlement Agreement Pending
COMVERSE TECH: Settles Two Consolidated Suits for $165 Million
COOPER COMPANIES: Trial in Amended Suit Continued to March 2
COSTCO WHOLESALE: Continues to Face Drenckhahn Suit in Calif.
COSTCO WHOLESALE: Discovery Still Ongoing in Castaneda Suit
COSTCO WHOLESALE: Continues to Defend Pytelewski Suit in Calif.
COSTCO WHOLESALE: Faces "Hawk" Complaint in Washington
COSTCO WHOLESALE: Class Certification in Ward Suit Still Pending
COSTCO WHOLESALE: Faces "Domnitz" Complaint in Alameda County
COSTCO WHOLESALE: Faces Suit over Failure to Give Proper Seating
COSTCO WHOLESALE: Still Awaits Decision in Ellis Suit
COSTCO WHOLESALE: Awaiting Approval of "Renewal" Suit Settlement
COSTCO WHOLESALE: April 1 Hearing Set for "Fuel" Suit Settlement
COSTCO WHOLESALE: Plaintiffs' Appeal in "Milk" Suit Pending
COSTCO WHOLESALE: Continues to Defend "Salmon" Suit in Calif.
COSTCO WHOLESALE: Plaintiffs' Appeal in "Waffle" Suit Pending
COSTCO WHOLESALE: Plaintiffs' Appeal Prelim. Injunction Denial
COSTCO WHOLESALE: Faces "Head" Suit over Miscalculated Pay Rates
COSTCO WHOLESALE: Awaiting Settlement Approval in Williams Suit
FLOTEK INDUSTRIES: Faces Stockholder Securities Suit in Texas
FLOWSERVE CORP: Inks Stipulation to Settle Texas Securities Suit
ICT GROUP: Inks MOU to Settle Suit over Planned Sykes Merger
MARVEL ENT: Inks Agreement to Settle 2 Suits over Sale to Disney
STATER BROS: SBM Diaries Continues to Defend "O'Connor" Suit
TAKE TWO: Plaintiffs' Appeal in "GTA" Suit Remains Pending
TAKE TWO: Awaits Court OK of Settlement in Stock Backdating Suit
TOLL BROTHERS: Still Faces Amended Complaint in Securities Suit
UNITED WESTERN: Bank Unit's Motion to Dismiss Remains Pending
UNITED WESTERN: Faces Amended "Richoz" Lawsuit in Illinois
VCG HOLDING: Facing "Ostry" Suit in Colo. over Lowrie Proposal
W HOLDING: Continues to Defend Consolidated Amended Suit in PR
*********
AGILENT TECH: Final Approval of Settlement Agreement Pending
------------------------------------------------------------
Agilent Technologies, Inc., is awaiting final approval of an
agreement to settle class actions over its proposed acquisition
of Varian, Inc., according to the company's Dec. 21, 2009, Form
10-K filing with the U.S. Securities and Exchange Commission for
the fiscal year ended Oct. 31, 2009.
On Aug. 5, 2009, a putative class action was filed in California
Superior Court, County of Santa Clara, entitled Feivel Gottlieb
Plan -- Administrator Feivel Gottlieb Defined Benefit Pension
Plan DTD 01-01-04 v. Garry W. Rogerson, et al., No. 1-09-CV-
149132.
The action was allegedly brought on behalf of a class of
shareholders of Varian, Inc. against Varian, its board of
directors, Agilent and Cobalt Acquisition Corp., a wholly owned
subsidiary of Agilent, in connection with the proposed
acquisition of Varian.
A similar action, entitled Stuart Kreisberg v. Garry W. Rogerson,
et al., No. 1-09-CV-149383, was filed in the same court on Aug.
7, 2009.
The actions were subsequently consolidated under the caption In
re Varian, Inc. Shareholder Litigation, Lead Case No. 1-09-CV-
149132, and a consolidated amended complaint was filed on Aug.
14, 2009.
The consolidated amended complaint is also filed on behalf of an
alleged class of Varian shareholders against Varian, its
directors, Agilent and Cobalt.
The consolidated amended complaint alleges that Varian's
directors breached their fiduciary duties in connection with the
proposed acquisition and asserts, among other things, that the
price and other terms are unfair, that Varian's directors have
engaged in self-dealing, and that the disclosures in Varian's
Aug. 7, 2009 proxy filing are inadequate.
Agilent and Cobalt are alleged to have aided and abetted the
Varian directors' purported breaches of fiduciary duties.
Plaintiffs seek injunctive and other relief, including attorneys'
fees and costs.
On Aug. 19, 2009, another substantially similar putative class
action, entitled Hawaii Laborers Pension Fund v. Varian, Inc., et
al., No. 1-09-CV-150234, was filed in the same court against
Varian, its directors, and Agilent.
Like the consolidated amended complaint, it asserts claims on
behalf of a class of Varian shareholders, alleges that Varian's
directors breached their fiduciary duties in connection with the
proposed acquisition by, inter alia, failing to value Varian
properly, agreeing to improper deal terms, engaging in self-
dealing and making misleading disclosures, alleges that Agilent
aided and abetted those purported breaches of fiduciary duties,
and seeks injunctive and other relief, including attorneys' fees
and costs.
On Sept. 25, 2009, the parties signed a memorandum of
understanding to settle the class actions.
The settlement provides, among other things, that:
(i) Varian would make certain agreed-upon disclosures
designed to supplement those contained in its
definitive proxy statement filed on Aug. 20, 2009;
(ii) the litigation will be dismissed with prejudice as to
all defendants;
(iii) defendants believe the claims are without merit and
continue to deny liability, but agree to settle in
order to avoid the potential cost and distraction of
continued litigation and to eliminate any risk of any
delay to the acquisition; and
(iv) plaintiffs' counsel may seek fees and costs of up to
$625,000, subject to court approval.
There is to be no payment of money to the alleged class members.
The settlement is subject to execution and delivery of a
stipulation of settlement and other definitive documentation,
confirmatory discovery, the closing of the acquisition, notice to
stockholders, and court approval.
Agilent Technologies, Inc. -- http://www.agilent.com/-- is a
measurement company providing bio-analytical and electronic
measurement solutions to the communications, electronics, life
sciences and chemical analysis industries. The company operates
in two business segments: electronic measurement business and the
bio-analytical measurement business.
COMVERSE TECH: Settles Two Consolidated Suits for $165 Million
--------------------------------------------------------------
Comverse Technology, Inc., entered into an agreement to settle a
consolidated shareholder class action captioned In re Comverse
Technology, Inc. Sec. Litig., No. 06-CV-1825.
The suit is pending in the U.S. District Court for the Eastern
District of New York against the company and certain of its
former officers and directors alleging that such defendants had
violated federal securities laws in connection with prior
statements made by the company with respect to, among other
things, its accounting treatment of stock options.
The company also entered into an agreement to settle consolidated
shareholder derivative actions: In re Comverse Technology, Inc.
Derivative Litigation, No. 601272/2006 and In re Comverse
Technology, Inc. Derivative Litigation, No. 06-CV-1849, which are
pending in the New York Supreme Court for New York County and the
U.S. District Court for the Eastern District of New York,
respectively. The suits were filed against certain of the
company's former officers and directors and, in the state court
action, the company's independent registered public accounting
firm, alleging that the defendants breached certain duties to the
company and that certain former officers and directors were
unjustly enriched (and, in the federal action, alleging violation
of federal securities laws).
In connection with such settlements, the company agreed to
dismiss its direct lawsuits under the captions Comverse
Technology, Inc. v. Alexander, No. 08/600142 and Comverse
Technology, Inc. v. Kreinberg, No. 09/600052 in the Supreme Court
of the State of New York against Jacob "Kobi" Alexander, the
company's former Chairman and Chief Executive Officer, David
Kreinberg, the company's former Chief Financial Officer, and
William Sorin, the company's former General Counsel, and Messrs.
Alexander, Sorin and Kreinberg agreed to dismiss their
counterclaims against the company.
As part of the settlement of the consolidated shareholder class
action, the company agreed to make payments to a class action
settlement fund in the aggregate amount of $165.0 million as
follows:
-- $1.0 million paid upon signing of this settlement
agreement;
-- $51.5 million on or before Aug.15, 2010;
-- $30.0 million on or before Feb. 15, 2011; and
-- $82.5 million on or before Aug. 15, 2011.
The company intends to fund the $51.5 million due on or before
Aug. 15, 2010 with proceeds from the sale of certain auction rate
securities to UBS AG. UBS AG has previously agreed to purchase
$51.5 million face amount of such securities for a purchase price
equal to such face amount at the Company's election between June
30, 2010 and July 2, 2012.
The $30.0 million due on or before Feb. 15, 2011 and the $82.5
million due on or before August 15, 2011 are payable in cash or,
at the company's election, in shares of the company's common
stock valued using the ten day average of the closing price of
the company's common stock prior to such election.
In addition, as part of the settlement of the consolidated
shareholder class action and the derivative actions, Mr.
Alexander agreed to pay $60.0 million to the company which will
be deposited into the derivative settlement fund and then
transferred into the class action settlement fund.
The other defendants in the derivative actions agreed to pay to
the company an aggregate of $1.35 million and certain former
directors agreed to relinquish certain unexercised stock options.
The company's settlement of claims against it in the class action
for aggregate consideration of $165.0 million is not contingent
upon Mr. Alexander satisfying his payment obligations.
The agreements in settlement of the above-mentioned actions are
subject to notice to the company's shareholders and approval by
the federal and state courts in which such proceedings are
pending, according to the company's Dec. 18, 2009, Form 8-K
filing with the U.S. Securities and Exchange Commission.
Comverse Technology, Inc. -- http://www.cmvt.com/-- through its
subsidiary, Comverse, Inc., is a provider of software and systems
enabling network-based multimedia enhanced communication and
billing services.
COOPER COMPANIES: Trial in Amended Suit Continued to March 2
------------------------------------------------------------
The U.S. District Court for the Central District of California
has continued the trial date of an amended consolidated complaint
against The Cooper Companies, Inc., to March 2, 2010.
On Feb. 15, 2006, Alvin L. Levine filed a putative securities
class action lawsuit in the U.S. District Court for the Central
District of California, Case No. SACV-06-169 CJC, against the
company, A. Thomas Bender, its Chairman of the Board and a
director, Robert S. Weiss, its Chief Executive Officer and a
director, and John D. Fruth, a former director.
On May 19, 2006, the Court consolidated this action and two
related actions under the heading In re Cooper Companies, Inc.
Securities Litigation and selected a lead plaintiff and lead
counsel pursuant to the provisions of the Private Securities
Litigation Reform Act of 1995, 15 U.S.C. Section 78u-4.
The lead plaintiff filed a consolidated complaint on July 31,
2006. The consolidated complaint was filed on behalf of all
purchasers of the company's securities between July 28, 2004, and
Dec. 12, 2005, including persons who received company securities
in exchange for their shares of Ocular Sciences, Inc. in the
January 2005 merger pursuant to which the company acquired
Ocular.
In addition to the Company, Messrs. Bender, Weiss, and Fruth, the
consolidated complaint named as defendants several of the
company's other current officers and directors and former
officers. On July 13, 2007, the Court granted Cooper's motion to
dismiss the consolidated complaint and granted the lead plaintiff
leave to amend to attempt to state a valid claim.
On Aug. 9, 2007, the lead plaintiff filed an amended consolidated
complaint. In addition to the company, the amended consolidated
complaint names as defendants Messrs. Bender, Weiss, Fruth,
Steven M. Neil, the company's former Executive Vice President and
Chief Financial Officer, and Gregory A. Fryling, CooperVision's
former President and Chief Operating Officer.
The amended consolidated complaint purports to allege violations
of Sections 10(b) and 20(a) of the Securities and Exchange Act of
1934 by, among other things, contending that the defendants made
misstatements concerning the Biomedics product line, sales force
integration following the merger with Ocular, the impact of
silicone hydrogel lenses and financial projections.
The amended consolidated complaint also alleges that the company
improperly accounted for assets acquired in the Ocular merger by
improperly allocating $100 million of acquired customer
relationships and manufacturing technology to goodwill (which is
not amortized against earnings) instead of to intangible assets
other than goodwill (which are amortized against earnings), that
the company lacked appropriate internal controls and issued false
and misleading Sarbanes-Oxley Act certifications.
On Oct. 23, 2007, the Court granted in-part and denied in-part
Cooper and the individual defendants' motion to dismiss.
The Court dismissed the claims relating to the Sarbanes-Oxley Act
certifications and the company's accounting of assets acquired in
the Ocular merger.
The Court denied the motion as to the claims related to alleged
false statements concerning the Biomedics product line, sales
force integration, the impact of silicone hydrogel lenses and the
company's financial projections.
On Nov. 28, 2007, the Court dismissed all claims against Mr.
Fruth. On Dec. 3, 2007, the company and Messrs. Bender, Weiss,
Neil and Fryling answered the amended consolidated complaint.
On April 8, 2008, the Court granted a motion by Mr. Neil for
judgment on the pleadings as to him.
On Oct. 20, 2009, the Court confirmed that Plaintiffs' financial
projection claims had been dismissed in its earlier rulings.
On Jan. 6, 2009, the Court granted plaintiffs' motion for class
certification. The certified class consists of those persons who
purchased or otherwise acquired Cooper common stock between July
28, 2004, and Nov. 21, 2005.
Discovery in this matter has closed. On Oct. 7, 2009, the Court
continued the trial date to March 2, 2010, according to the
company's Dec. 21, 2009, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Oct.
31, 2009.
The Cooper Companies, Inc. -- http://www.coopercos.com/--
develops, manufactures and markets healthcare products, primarily
medical devices, through its two business units: CooperVision,
Inc. and CooperSurgical, Inc. CVI develops, manufactures and
markets a range of contact lenses for the worldwide vision
correction market. CSI develops, manufactures and markets
medical devices, diagnostic products, and surgical instruments
and accessories used primarily by gynecologists and
obstetricians.
COSTCO WHOLESALE: Continues to Face Drenckhahn Suit in Calif.
-------------------------------------------------------------
A class certification motion by the plaintiff's in a putative
class action suit filed against Costco Wholesale Corp. remains
pending, according to the company's Dec. 18, 2009, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Nov. 22, 2009.
The suit is styled Jesse Drenckhahn v. Costco Wholesale Corp.,
United States District Court (Los Angeles), Case No. CV08-1408
FMC (JMJ), and was filed on Dec. 26, 2007.
The suit principally alleges denial of overtime compensation.
The complaint alleges misclassification of certain
California managers.
On March 6, 2008, Costco filed a motion to dismiss. On May 15,
2008, the court partially granted the motion, dismissing certain
claims and refusing to expand the statute of limitations for the
remaining claims.
An answer to the complaint was filed on May 27, 2008.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Discovery Still Ongoing in Castaneda Suit
-----------------------------------------------------------
Discovery is still ongoing in a purported class action styled
Anthony Castaneda v. Costco Wholesale Corp., Superior Court for
the County of Los Angeles, Case No. BC-399302.
The case was purportedly brought as a class action on behalf of
present and former hourly employees in California, in which the
plaintiff principally alleges that the company's routine closing
procedures and security checks cause employees to incur delays
that qualify as uncompensated working time and that effectively
deny them statutorily guaranteed meal periods and rest breaks.
The complaint was filed on Oct. 2, 2008, and its motion to
dismiss was partially granted.
No further updates were reported in the company's Dec. 18, 2009,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Nov. 22, 2009.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Continues to Defend Pytelewski Suit in Calif.
---------------------------------------------------------------
Costco Wholesale Corp continues to defend the complaint styled
Mary Pytelewski v. Costco Wholesale Corp., Superior Court for the
County of San Diego, Case No. 37-2009-00089654, according to the
company's Dec. 18, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Nov. 22,
2009.
The purported class action was filed on May 15, 2009, on behalf
of present and former hourly employees in California, claiming
denial of wages and false imprisonment during the post-closing
jewelry and till "pull," when security measures allegedly cause
employees to be locked in the warehouses.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Faces "Hawk" Complaint in Washington
------------------------------------------------------
Costco Wholesale Corp. faces a purported class action styled
Raven Hawk v. Costco Wholesale Corp., King County Superior Court,
Case No. 09-242196-0-SEA, according to the company's Dec. 18,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Nov. 22, 2009.
A case purportedly brought as a class action on behalf of present
and former hourly employees in California, in which the
The suit was filed on Nov. 9, 2009, in the State of Washington.
Plaintiffs seek restitution/disgorgement, compensatory damages,
various statutory penalties, punitive damages, interest, and
attorneys' fees.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Class Certification in Ward Suit Still Pending
----------------------------------------------------------------
The class certification motion of the plaintiff's in the suit,
Carrie Ward v. Costco Wholesale Corp., U.S. District Court (Los
Angeles), Case No. CV08-02013 FMC (FFM), remains pending.
The putative class action, filed on Jan. 24, 2008, purportedly
brought on behalf of two groups of former California employees-an
"Unpaid Wage Class" and a "Wage Statement Class."
The "Unpaid Wage Class" alleges that the Company improperly
deducts employee credit card balances from final paychecks, while
the "Wage Statement Class" alleges that final paychecks do not
contain the accurate and itemized information legally required
for wage statements
On May 29, 2008, the court granted in part a motion to dismiss,
dismissing with prejudice the wage-itemization claims. On May 5,
2009, the Court denied the company's motion for summary judgment.
No futher developments were reported in the the company's Dec.
18, 2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Nov. 22, 2009.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Faces "Domnitz" Complaint in Alameda County
-------------------------------------------------------------
Costco Wholesale Corp. faces a purported class action styled
Jacqueline Domnitz v. Warehouse Demo Services, Inc., et al., Case
No. RG-0947-8489, according to the company's Dec. 18, 2009, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Nov. 22, 2009.
The suit was filed in the Alameda County Superior Court on Oct.
8, 2009.
Plaintiff purports to sue on behalf of individuals who currently
and formerly provided product demonstration services at company
warehouses in California.
She alleges that class members were and are denied meal and rest
breaks, overtime pay, and other benefits.
Plaintiff seeks restitution/disgorgement, compensatory damages,
various statutory penalties, punitive damages, interest, and
attorneys' fees.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Faces Suit over Failure to Give Proper Seating
----------------------------------------------------------------
Costco Wholesale Corp. faces a purported class action alleging
that it failed to provide reasonable seating to employees in
violation of California law, according to the company's Dec. 18,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Nov. 22, 2009.
The suit was filed on Oct. 28, 2009 and is styled Jade Jue v.
Costco Wholesale Corp., San Mateo County Superior Court, Case No.
489091.
Plaintiff seeks restitution/disgorgement, compensatory damages,
various statutory penalties, punitive damages, interest, and
attorneys' fees.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Still Awaits Decision in Ellis Suit
-----------------------------------------------------
Costco Wholesale Corp. and other parties in Shirley "Rae" Ellis
v. Costco Wholesale Corp., Case No. C-04-3341-MHP (N.D. Calif.),
still await a decision from the Ninth Circuit.
The case, brought as a class action on behalf of certain present
and former female managers, in which plaintiffs allege denial of
promotion based on gender in violation of Title VII of the Civil
Rights Act of 1964 and California state law. Plaintiffs seek
compensatory damages, punitive damages, injunctive relief,
interest and attorneys' fees. Class certification was granted by
the district court on Jan. 11, 2007.
On May 11, 2007, the U.S. Court of Appeals for the Ninth Circuit
granted a petition to hear the company's appeal of the
certification. The appeal was argued on April 14, 2008.
Proceedings in the district court have been stayed during the
appeal.
No further updates were reported in the company's Dec. 18, 2009,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Nov. 22, 2009.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Awaiting Approval of "Renewal" Suit Settlement
----------------------------------------------------------------
Costco Wholesale Corp. continues to await final approval of a
settlement that will resolve two class suits, according to the
company's Dec. 18, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Nov. 22,
2009.
The suits are:
(1) In Evans, et ano., v. Costco Wholesale Corp.,
No. BC351869, filed in theSuperior Court for the County
of Los Angeles), and
(2) Dupler v. Costco Wholesale Corp., Index No. 06-007555,
commenced in the Supreme Court of Nassau County, New
York and removed to the U.S. District Court for the
Eastern District of New York.
The suits asserted that the company violated various provisions
of California and New York common law and statutes in connection
with a membership renewal practice.
Under that practice, members who paid their renewal fees late
generally had their twelve-month membership renewal periods
commence at the time of the prior year's expiration rather than
the time of the late payment.
Plaintiffs in these two actions seek compensatory damages,
restitution, disgorgement, preliminary and permanent injunctive
and declaratory relief, attorneys' fees and costs, prejudgment
interest and, in Evans, punitive damages.
On April 2, 2009, the district court preliminarily approved a
settlement that, if finally approved, will resolve both of these
actions.
The settlement entails a provisional certification of a
nationwide class of present and former Costco members who from
March 1, 2001, to March 31, 2009, paid their membership renewal
fees late and had their renewal periods commence at the prior
year's expiration date rather than the date of payment.
Depending upon their individual circumstances, class members can
be eligible for up to a three-month extension of their current
membership or, if they are no longer Costco members, a temporary
membership of up to three months. Other than payments to two
class representatives, the settlement does not provide for cash
payments to class members.
The company has agreed not to oppose a request for an award of
attorneys' fees to class counsel in an amount up to $5 million .
The court is considering whether the settlement should receive
final approval.
In the third quarter of 2009, the company recorded an adjustment
to deferred membership fees of $27 million and a reserve was
established in the amount of $7 million to cover the expected
costs of the certificates, payment of attorneys' fees to class
counsel, and certain expenses of settlement administration.
Further details of the proposed settlement can be obtained from
the notice to class members, which can be viewed for free at
http://www.costco.com/renewalsettlement.pdf
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: April 1 Hearing Set for "Fuel" Suit Settlement
----------------------------------------------------------------
The U.S. District Court for the District of Kansas has set a
hearing for April 1, 2010, to consider final approval of the
settlement in the matter In re Motor Fuel Temperature Sales
Practices Litigation, according to Costco Wholesale Corp.'s Dec.
18, 2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Nov. 22, 2009.
Numerous putative class actions have been brought around the
United States against motor fuel retailers, including the
company, alleging that they have been overcharging consumers by
selling gasoline or diesel that is warmer than 60 degrees without
adjusting the volume sold to compensate for heat-related
expansion or disclosing the effect of such expansion on the
energy equivalent received by the consumer.
The company is named in these actions:
-- Raphael Sagalyn, et al., v. Chevron USA, Inc., et al.,
Case No. 07-430 (D. Md.);
-- Phyllis Lerner, et al., v. Costco Wholesale Corporation,
et al., Case No. 07-1216 (C.D. Cal.);
-- Linda A. Williams, et al., v. BP Corporation North
America, Inc., et al., Case No. 07-179 (M.D. Ala.);
-- James Graham, et al. v. Chevron USA, Inc., et al.,
Civil Action No. 07-193 (E.D. Va.);
-- Betty A. Delgado, et al., v. Allsups, Convenience
Stores, Inc., et al., Case No. 07-202 (D.N.M.);
-- Gary Kohut, et al. v. Chevron USA, Inc., et al.,
Case No. 07-285 (D. Nev.);
-- Mark Rushing, et al., v. Alon USA, Inc., et al.,
Case No. 06-7621 (N.D. Cal.);
-- James Vanderbilt, et al., v. BP Corporation North
America, Inc., et al., Case No. 06-1052 (W.D. Mo.);
-- Zachary Wilson, et al., v. Ampride, Inc., et al.,
Case No. 06-2582 (D. Kan.);
-- Diane Foster, et al., v. BP North America Petroleum,
Inc., et al., Case No. 07-02059 (W.D. Tenn.);
-- Mara Redstone, et al., v. Chevron USA, Inc., et al.,
Case No. 07-20751 (S.D. Fla.);
-- Fred Aguirre, et al. v. BP West Coast Products LLC,
et al., Case No. 07-1534 (N.D. Cal.);
-- J.C. Wash, et al., v. Chevron USA, Inc., et al.;
Case No. 4:07cv37 (E.D. Mo.);
-- Jonathan Charles Conlin, et al., v. Chevron USA, Inc.,
et al.; Case No. 07 0317 (M.D. Tenn.);
-- William Barker, et al. v. Chevron USA, Inc., et al.;
Case No. 07-cv-00293 (D.N.M.);
-- Melissa J. Couch, et al. v. BP Products North America,
Inc., et al., Case No. 07cv291 (E.D. Tex.);
-- S. Garrett Cook, Jr., et al., v. Hess Corporation,
et al., Case No. 07cv750 (M.D. Ala.);
-- Jeff Jenkins, et al. v. Amoco Oil Company, et al.,
Case No. 07-cv-00661 (D. Utah); and
-- Mark Wyatt, et al., v. B. P. America Corp., et al.,
Case No. 07-1754 (S.D. Cal.).
On June 18, 2007, the Judicial Panel on Multidistrict Litigation
assigned the action, entitled In re Motor Fuel Temperature Sales
Practices Litigation, MDL Docket No 1840, to Judge Kathryn Vratil
in the U.S. District Court for the District of Kansas.
On Feb. 21, 2008, the court denied a motion to dismiss the
consolidated amended complaint.
On April 12, 2009, the company agreed to a settlement involving
the actions in which it is named as a defendant.
Under the settlement, which is subject to final approval by the
court, the company has agreed, to the extent allowed by law, to
install over five years from the effective date of the settlement
temperature-correcting dispensers in the States of Alabama,
Arizona, California, Florida, Georgia, Kentucky, Nevada, New
Mexico, North Carolina, South Carolina, Tennessee, Texas, Utah,
and Virginia.
Other than payments to class representatives, the settlement does
not provide for cash payments to class members.
On Aug. 18, 2009, the court preliminarily approved the settlement
and set a hearing for April 1, 2010, to consider final approval
of the settlement.
Further details of the proposed settlement can be obtained from
the notice to class members, which can be viewed for free at
http://www.costco.com/fuelsettlement.pdf
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Plaintiffs' Appeal in "Milk" Suit Pending
-----------------------------------------------------------
The appeal of the plaintiffs on the dismissal of all claims
against Costco Wholesale Corp. in a consolidated complaint
remains pending, according to the company's Dec. 18, 2009, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Nov. 22, 2009.
The company has been named as a defendant in two purported class
actions relating to sales of organic milk.
The suits are:
(1) Hesse v. Costco Wholesale Corp., No. C07-1975
(W.D. Wash.); and
(2) Snell v. Aurora Dairy Corp., et al., No. 07-CV-2449
(D. Col.).
Both actions claim violations of the laws of various states,
essentially alleging that milk provided to Costco by its supplier
Aurora Dairy Corp. was improperly labeled "organic."
Plaintiffs filed a consolidated complaint on July 18, 2008.
With respect to the company, plaintiffs seek to certify four
classes of people who purchased Costco organic milk.
Aurora has maintained that it has held and continues to hold
valid organic certifications.
The consolidated complaint seeks, among other things, actual,
compensatory, statutory, punitive and/or exemplary damages in
unspecified amounts, as well as costs and attorneys' fees.
On June 3, 2009, the court entered an order dismissing with
prejudice, among others, all claims against the company.
Plaintiffs have appealed the dismissal.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Continues to Defend "Salmon" Suit in Calif.
-------------------------------------------------------------
Costco Wholesale Corp. continues to defend a purported class
action relating to sales of farm-raised salmon, according to the
company's Dec. 18, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Nov. 22,
2009.
The suit is Farm Raised Salmon Coordinated Proceedings, Los
Angeles Superior Court Case No. JCCP No. 4329.
The action alleges that the company violated California law
requiring farm-raised salmon to be labeled as "color added."
The complaint asserts violations of the California Unfair
Competition Law, the California Consumer Legal Remedies Act, and
the California False Advertising Law, and negligent
misrepresentation, and seeks restoration of money acquired by
means of unfair competition or false advertising and compensatory
damages in unspecified amounts, injunctive relief remedying the
allegedly improper disclosures, and costs and attorneys' fees.
A California Superior Court ruling dismissing the action on the
ground that federal law does not permit claims for mislabeling of
farm-raised salmon to be asserted by private parties was reversed
by the California Supreme Court.
The company has denied the material allegations of the complaint.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Plaintiffs' Appeal in "Waffle" Suit Pending
-------------------------------------------------------------
The appeal of the plaintiffs on the denial of class certification
of a purported nationwide class action against Costco Wholesale
Corp. relating to sales of certain waffles, which alleges that
labeling, provided by the company's supplier, of these items was
deceptive and misleading, remains pending, according to the
company's Dec. 18, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Nov. 22,
2009.
The suit is Hodes, et al., v. Van's International Foods, et al.,
filed in the U.S. District Court for the Central District of
California, Case No. CV 09-01530.
The complaint asserts causes of action for fraud, breach of
warranty, false advertising under California Business and
Professions Code sections 17500 et seq., and unfair business
practices under California Business and Professions Code sections
17200 et seq.
Relief sought includes compensatory, consequential, and punitive
damages, restitution, prejudgment interest, costs, and attorneys'
fees.
By orders dated June 23, and July 23, 2009, the district court
dismissed the fraud claim against the company and denied the
plaintiffs' motion for class certification.
On Sept. 23, 2009, the district court dismissed the action for
lack of jurisdiction.
Plaintiffs are appealing the denial of class certification.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Plaintiffs' Appeal Prelim. Injunction Denial
--------------------------------------------------------------
Plaintiffs are appealing the decision of the U.S. District Court
for the Southern District of New York denying their request for a
preliminary injunction seeking to prevent Costco Wholesale Corp.
from selling shrimp trays, according to the company's Dec. 18,
2009, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended Nov. 22, 2009.
A purported nationwide class action styled In Verzani, et ano.,
v. Costco Wholesale Corp., No. 09-CV-2117 was filed against the
company.
The plaintiffs allege claims for breach of contract and violation
of the Washington Consumer Protection Act, based on the failure
of the Company to disclose on the label of its "Shrimp Tray with
Cocktail Sauce" the weight of the shrimp in the item as distinct
from the accompanying cocktail sauce, lettuce, and lemon wedges.
The complaint seeks various forms of damages, including
compensatory and treble damages and disgorgement and restitution,
injunctive and declaratory relief, attorneys' fees, costs, and
prejudgment interest.
On April 21, 2009, the plaintiff filed a motion for a preliminary
injunction, seeking to prevent the company from selling the
shrimp tray unless the company separately discloses the weight of
the shrimp and provides shrimp consistent with the disclosed
weight.
By orders dated July 29 and Aug. 6, 2009, the court denied the
preliminary injunction motion and dismissed the claim for breach
of contract.
Plaintiffs are appealing.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
COSTCO WHOLESALE: Faces "Head" Suit over Miscalculated Pay Rates
----------------------------------------------------------------
Costco Wholesale Corp. continues to face a suit styled Terry Head
v. Costco Wholesale Corp., alleging that the company
miscalculated the rates of pay for all department and ancillary
managers in California in violation of Labor Code Section 515(d),
according to the company's Dec. 18, 2009, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Nov. 22, 2009.
A case purportedly brought as a class action on behalf of certain
present and former Costco managers in California, in which
plaintiffs principally allege that they have not been properly
compensated for overtime work. The suit is styled Greg Randall
v. Costco Wholesale Corp., filed in the Superior Court for the
County of Los Angeles, Case No. BC-296369.
On Feb. 21, 2008 the court tentatively granted in part and denied
in part plaintiffs' motion for class certification. That order
was finalized by the court on May 13, 2008.
The parties in Randall have agreed on a partial settlement of the
action, resolving all claims except for the miscalculation claim,
requiring a payment of up to $16 million by the company, which
was substantially paid in the first quarter of 2010.
The miscalculation claim from the Randall case was refiled as a
separate action by stipulation and styled Terry Head v. Costco
Wholesale Corp., filed in the Superior Court for the County of
Los Angeles, Case No. BC-409805.
On Oct. 2, 2009, the court granted the Company's motion for
summary judgment.
COSTCO WHOLESALE: Awaiting Settlement Approval in Williams Suit
---------------------------------------------------------------
Costco Wholesale Corp. awaits approval of a settlement in the
matter Scott M. Williams v. Costco Wholesale Corp., U.S. District
Court (San Diego), Case No. 02-CV-2003 NAJ (JFS), according to
the company's Dec. 18, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Nov. 22,
2009.
The case is purportedly brought as class actions on behalf of
certain present and former Costco managers in California, in
which plaintiffs principally allege that they have not been
properly compensated for overtime work.
Costco Wholesale Corporation -- http://www.costco.com/--
operates membership warehouses-based offering its members
products in a range of merchandise categories. It buys the
majority of its merchandise directly from manufacturers and route
it to a cross-docking consolidation point (depot) or directly to
its warehouses.
FLOTEK INDUSTRIES: Faces Stockholder Securities Suit in Texas
-------------------------------------------------------------
Flotek Industries, Inc., faces a stockholder class action suit
seeking to pursue remedies under the Securities Exchange Act of
1934.
On Aug. 7, 2009, a class action suit was commenced in the U.S.
District Court for the Southern District of Texas on behalf of
purchasers of the common stock of the company between May 8, 2007
and Jan. 23, 2008, inclusive.
The complaint alleges that, throughout the time period indicated,
Flotek failed to disclose material adverse facts about the
company's true financial condition, business and prospects.
Specifically, the complaint alleges that defendants failed to
disclose the following adverse facts, among others:
(i) the company was experiencing weakness in its Rocky
Mountain sales region due to its decision to not cut
prices to the level of its competitors;
(ii) the company's operating profit margins were being
negatively impacted as customers increasingly opted to
rent equipment instead of purchasing it;
(iii) sales in the company's chemicals division were declining
due to a decrease in fracing activity; and
(iv) as a result of the foregoing, defendants' positive
statements concerning the company's guidance and
prospects were lacking in a reasonable basis at all
relevant times.
Since Aug. 7, 2009, several other class action suits have been
commenced by others concerning the foregoing matters. At this
time and due to the recent filing of the lawsuits the company is
unable to provide further details, according to its Dec. 21,
2009, Form 10-K/A filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2008.
Flotek Industries, Inc. -- http://www.flotekind.com/home.php--
is supplying drilling and production related products and
services to the energy and mining industries. The company's core
focus is oilfield specialty chemicals and logistics, downhole
drilling tools and downhole production tools. Flotek offers its
products primarily through its sales organizations, as well as
through independent distributors and agents. The company's
reportable segments are Chemical and Logistics, Drilling Products
and Artificial Lift. All three segments market products
domestically and internationally. The company acquired the
assets of Teledrift Inc., which designs and manufactures wireless
survey and measurement while drilling tools, on Feb. 14, 2008.
FLOWSERVE CORP: Inks Stipulation to Settle Texas Securities Suit
----------------------------------------------------------------
Flowserve Corp. executed a stipulation of settlement among the
other defendants named therein and the lead plaintiffs to settle
the pending securities class action lawsuit originally filed in
2003, according to the company's Dec. 18, 2009, Form 8-K filing
with the U.S. Securities and Exchange Commission.
The settlement is subject to various customary conditions,
including preliminary approval by the U.S. District Court for the
Northern District of Texas, notice to class members, class member
opt-out thresholds, a final hearing and final approval by the
District Court.
The company will contribute $13.5 million to the $55 million
total conditional settlement amount. The company's insurance
carriers will additionally contribute $40 million to the
conditional settlement amount, with another defendant
contributing the balance. The company's contribution is within
the accrued reserve previously established by the Company for
this matter in the Company's previously reported financial
results in 2009.
Flowserve Corp. -- http://www.flowserve.com/-- is a manufacturer
and aftermarket service provider of comprehensive flow control
systems. The company is engaged in developing and manufacturing
precision-engineered flow control equipment, such as pumps,
valves and seals, for critical service applications
ICT GROUP: Inks MOU to Settle Suit over Planned Sykes Merger
------------------------------------------------------------
ICT Group, Inc., has entered into a memorandum of understanding
with the plaintiffs in order to settle the consolidated amended
complaint resulting from its proposed merger with Sykes,
according to the company's Dec. 21, 2009, Form 8-K filing with
the U.S. Securities and Exchange Commission.
On Oct. 9, 2009, Oct. 13, 2009 and Oct. 29, 2009, three separate
lawsuits were filed by certain shareholders of the company
challenging the Merger, which asserted certain claims as class
action lawsuits on behalf of all of the holders of the company's
common stock and asserted other claims as derivative suits on
behalf of the company.
These lawsuits collectively named each of the company's
directors, the company, Sykes, SH Merger Subsidiary I, Inc. and
SH Merger Subsidiary II, LLC as defendants.
On Nov. 17, 2009, these three lawsuits were procedurally and
substantively consolidated by court order and styled In re: ICT
Group, Inc. Shareholder Litigation and assigned Case No. 2009-
10761 on the docket of the Court of Common Pleas of Bucks County,
Pennsylvania.
On Nov. 24, 2009, a First Amended and Consolidated Class Action
and Derivative Complaint was filed alleging class action and
derivative claims against the individual defendants and ICT for
breach of fiduciary duty, gross mismanagement, and corporate
waste and against the company, Sykes, SH Merger Subsidiary I,
Inc., and SH Merger Subsidiary II, Inc., for aiding and abetting
the individual defendants' breach of fiduciary duty in connection
with the proposed merger transaction between Sykes Enterprises,
Inc. and ICT Group, Inc. The Consolidated Complaint supersedes
the three earlier separate complaints.
On Dec. 14, 2009, the company, Sykes and the other named
defendants entered into a memorandum of understanding with the
attorneys representing the plaintiffs in the Consolidated Action.
The MOU sets forth the terms on which the plaintiffs and
defendants have agreed to settle the Consolidated Action, subject
to court approval.
If the court approves the settlement agreement, the Consolidated
Complaint will be dismissed with prejudice. ICT, Sykes and other
defendants deny all of the allegations in the Consolidated
Complaint. The company nevertheless agreed to the settlement in
order to avoid costly litigation and reduce the risk of any delay
to the closing of the Merger.
Pursuant to the terms of the MOU, ICT agreed to make additional
disclosures in the definitive proxy statement to be mailed to the
company's shareholders related to Merger.
The additional disclosures generally relate to ICT financial
projections, the opinion on the fairness of the terms of the
Merger by Greenhill & Co., LLC, ICT's financial advisor, and
other disclosures relating to the background of the Merger. In
return for the additional disclosures, the plaintiffs have agreed
to dismiss the Consolidated Complaint and all members of a
putative opt-out settlement class will release any claims they
have or may have against the defendants in connection with the
matters alleged in the Consolidated Action.
In addition, the defendants have agreed not to oppose a petition
by plaintiffs' counsel for an award of fees and expenses so long
as it does not exceed $250,000 and to bear any cost and
administrative responsibility of notice to the class members in
connection with the settlement and any settlement hearing
regarding the proposed settlement.
ICT Group, Inc. -- http://www.ictgroup.com/-- is a global
provider of outsourced customer management and business process
outsourcing (BPO) solutions. The company's mix of customer
service, technology and back-office solutions includes customer
care/retention, cross-selling/upselling, technical support and
collections, database marketing, data entry/management, e-mail
response management, remittance processing and other back-office
business processing services. The company also offers a suite of
BPO technologies, which are available on a hosted basis, for use
by clients at their own in-house facilities, or on a co-sourced
basis in conjunction with its integrated, multi-channel
operations centers.
MARVEL ENT: Inks Agreement to Settle 2 Suits over Sale to Disney
----------------------------------------------------------------
Marvel Entertainment, Inc., entered into a Memorandum of
Understanding with plaintiffs to settle two consolidated actions
over the buyout of The Walt Disney Co. of Marvel, according to
the company's Dec. 16, 2009, Form 8-K filing with the U.S.
Securities and Exchange Commission.
Marvel, its board of directors and Disney and, in certain
instances, the Acquisition Subsidiaries are named as defendants
in purported class action lawsuits brought by alleged Marvel
stockholders challenging Marvel's proposed merger with Disney.
Two stockholder actions were filed in the Supreme Court of the
State of New York, County of New York. These are:
-- Michael Golombuski v. Marvel Entertainment, Inc.,
et al., filed Aug. 31, 2009, and
-- Alan W. Meerow v. Marvel Entertainment, Inc. et al.,
filed Sept. 15, 2009.
The similar stockholder actions were filed in the Delaware Court
of Chancery. These are
-- Christine Vlatos v. Sid Ganis, et al., filed
Sept. 1, 2009;
-- Paul W. Morand v. Morton F. Handel et al., filed on
Sept. 8, 2009; and
-- Port Authority of Allegheny County Retirement and
Disability Allowance Plan for Employees Represented by
Local 85 of the Amalgamated Transit Union v. Isaac
Perlmutter, et al., filed on Sept. 10, 2009.
The stockholder actions generally allege, among other things,
that:
(i) each member of the Marvel board of directors breached
his fiduciary duties to Marvel and its stockholders by
authorizing the sale of Marvel to Disney,
(ii) the merger does not maximize value to Marvel
stockholders,
(iii) the defendants failed to provide stockholders with
allegedly material information related to the proposed
transaction and
(iv) Disney and Marvel aided and abetted the breaches of
fiduciary duty allegedly committed by the members of
the Marvel board of directors.
The stockholder actions seek class action certification and
equitable relief, including judgments enjoining the defendants
from consummating the merger on the agreed-upon terms.
The two actions in the Supreme Court of the State of New York,
County of New York were consolidated on Oct. 8, 2009 under the
new caption In re: Marvel Entertainment, Inc. Shareholder
Litigation.
The Vlatos and Morand actions in the Delaware Court of Chancery
were consolidated on Oct. 26, 2009 under the new caption In re:
Marvel Entertainment, Inc. Shareholder Litigation. On Oct. 9,
2009, the plaintiffs filed in the Delaware Court a Notice and
Proposed Order of Dismissal without prejudice of the action
entitled Port Authority of Allegheny County Retirement and
Disability Allowance Plan for Employees Represented by Local 85
of the Amalgamated Transit Union v. Isaac Perlmutter, et al.
On Dec. 17, 2009, the Court entered the order dismissing the Port
Authority action.
On Dec. 16, 2009, the parties to the New York Action and the
parties to the Delaware Action entered into a Memorandum of
Understanding providing for the settlement of the Actions.
Pursuant to the terms of the MOU, Marvel agreed to provide
certain additional disclosures to Marvel stockholders in its
definitive proxy statement/prospectus, which Disney filed with
the SEC pursuant to Rule 424 on Dec. 2, 2009.
The settlement is subject to the execution of definitive
documentation, notice to the shareholder class and final approval
of the settlement by the New York Court. Upon final approval,
the Actions will be dismissed with prejudice and all claims of
plaintiffs will be released.
Marvel Entertainment, Inc. -- http://www.marvel.com/-- is a
character-based entertainment company, with a library of over
5,000 characters. The company's library of characters includes
Spider-Man, Iron Man, The Incredible Hulk, Captain America, Thor,
The Avengers, Ghost Rider, The Fantastic Four, X-Men (including
Wolverine), Blade, Daredevil, The Punisher, Namor the Sub-
Mariner, Nick Fury, Silver Surfer and Ant-Man. The company is a
party to a joint venture with Sony Pictures Entertainment Inc.,
called Spider-Man Merchandising L.P., for the purpose of pursuing
licensing opportunities relating to characters based upon movies
or television shows featuring Spider-Man and produced by Sony.
Marvel operates in three integrated and complementary operating
segments: Licensing, Publishing and Film Production.
STATER BROS: SBM Diaries Continues to Defend "O'Connor" Suit
------------------------------------------------------------
Stater Bros. Holdings Inc.'s subsidiary SBM Dairies, Inc.,
continues to defend a suit filed in the Los Angeles Superior
Court, according to the company's Dec. 18, 2009, Form 10-K filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended Sept. 27, 2009.
The suit was filed by Dennis M. O'Connor, et al., against Santee
Dairies, Inc., dba Heartland Farms, nka SBM Dairies, in December
2008
The action seeks individual and potential class action monetary
damages for time spent by non-exempt hourly paid employees for
changing into and out of sanitary uniforms.
No date has been set for trial or a hearing for potential class
certification and SBM Dairies, Inc. is in the process of
conducting discovery.
SBM Dairies, Inc. denies it has any liability in this action and
intends to vigorously defend its interests. Plaintiffs have not
yet made any settlement demand and further evaluation of
potential liability will be completed if the Court certifies a
class action.
Stater Bros. Holdings Inc. -- http://www.staterbros.com/--
through its wholly-owned subsidiary, Stater Bros. Markets,
operates a supermarket chain of 167 stores located throughout
Southern California.
TAKE TWO: Plaintiffs' Appeal in "GTA" Suit Remains Pending
----------------------------------------------------------
The appeal of the plaintiffs on the denial of the U.S. District
Court for the Southern District of New York to certify the
proposed settlement class in a consolidated action against Take-
Two Interactive Software, Inc., remains pending, according to the
company's Dec. 18, 2009, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Oct.
31, 2009.
In July 2005, the company received four complaints for purported
class actions, which were consolidated in the U.S. District Court
for the Southern District of New York.
The plaintiffs, alleged purchasers of the company's Grand Theft
Auto: San Andreas game, assert that the company engaged in
consumer deception and false advertising, breached an implied
warranty of merchantability and were unjustly enriched as a
result of its alleged failure to disclose that Grand Theft Auto:
San Andreas contained "hidden" content.
The complaints seek unspecified damages, declarations of various
violations of law and litigation costs.
In January 2006, the City Attorney for the City of Los Angeles
filed a complaint in the Superior Court of California, alleging
violations of California law on substantially the same basis as
the consumer class action.
The company removed the LA City Attorney lawsuit to federal
court, and it was consolidated with the consumer class action.
In December 2007, the SDNY Court preliminarily approved a
settlement of the consumer class action.
In July 2008, however, the SDNY Court refused to certify the
proposed settlement class on the basis that, under controlling
case law issued after the parties negotiated the settlement, the
plaintiffs could no longer meet their burden of showing that the
case could proceed on the proposed class basis, regardless of
whether the purpose of certification was for litigation or
settlement.
The plaintiffs subsequently applied for, and on April 15, 2009
the U.S. Court of Appeals for the Second Circuit granted,
permission to file an interlocutory appeal.
The appeal is now pending.
The Court of Appeals may dismiss the appeal, reverse the lower
court's ruling and direct the lower court to reconsider approving
the settlement, or take some other action. The company expresses
no opinion as to the outcome of any such appeal. Should the
consumer class action or the related LA City Attorney action
return to an active litigation posture, the company intends to
defend these cases vigorously.
Take-Two Interactive Software, Inc. -- http://www.take2games.com/
-- is a global publisher, developer and distributor of
interactive entertainment software, hardware and accessories.
The company operates in two segments: publishing and
distribution. The publishing segment consists of Rockstar Games,
2K Games, 2K Sports and 2K Play publishing labels. The company
develops, markets and publishes software titles for gaming and
entertainment hardware platforms, including Sony's PLAYSTATION3
(PS3) and PlayStation2 (PS2) computer entertainment systems;
Sony's PSP (PlayStationPortable) (PSP) system; Microsoft's Xbox
360 (Xbox 360) video game and entertainment system; Nintendo's
Wii (Wii) and DS (DS) systems, and for the personal computers
(PC) and Games for Windows. The company's distribution segment,
which includes its Jack of All Games subsidiary, distributes its
products, as well as software, hardware and accessories produced
by others to retail outlets in North America.
TAKE TWO: Awaits Court OK of Settlement in Stock Backdating Suit
----------------------------------------------------------------
Take-Two Interactive Software, Inc., is awaiting approval from
the U.S. District Court for the Southern District of New York of
an agreement to settle a consolidated complaint alleging
backdating of stock options, according to the company's Dec. 18,
2009, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Oct. 31, 2009.
In February and March 2006, four purported class action
complaints were filed against the company and certain of its then
current and former officers and directors in the SDNY Court.
The actions were consolidated, and in April 2007 the lead
plaintiffs filed a consolidated second amended complaint which
contained allegations related to purported "hidden content"
contained in Grand Theft Auto: San Andreas and the backdating of
stock options, including the investigation thereof conducted by
the Special Litigation Committee of the Board of Directors and
the restatement of the company's financial statements relating
thereto.
The complaint was filed against the company, its former Chief
Executive Officer, its former Chief Financial Officer, its former
Chairman of the Board, its Rockstar Games subsidiary, and one
officer and one former officer of the company's Rockstar Games
subsidiary.
The lead plaintiffs sought unspecified compensatory damages and
costs including attorneys' fees and expenses.
In April 2008, the Court dismissed, with leave to amend, all
claims as to all defendants relating to Grand Theft Auto: San
Andreas and certain claims as to the company's former CEO, CFO
and certain director defendants relating to the backdating of
stock options.
In September 2008, the lead plaintiff filed a third amended
consolidated complaint seeking to reinstate these claims which
the company opposed.
On Aug. 31, 2009, the company entered into a memorandum of
understanding with the lead plaintiffs to comprehensively settle
all claims asserted by them against the company, its Rockstar
Games subsidiary and all of the current and former officers and
directors named in the actions.
Under the terms of the proposed settlement, the company will pay
approximately $20.1 million into a settlement fund for the
benefit of class members, approximately $15.3 million of which
will be paid by the company's insurance carriers and the balance
of approximately $4.8 million has previously been accrued for in
the company's financial statements.
In addition to the payment to the settlement fund, the company
will also supplement the substantial changes that it has already
implemented in its corporate governance policies and practices.
The proposed settlement is subject to the completion of final
documentation and preliminary and final approval by the SDNY
Court. Neither the company, its subsidiary nor any of the
individuals admit any wrongdoing as part of the proposed
settlement agreement.
Take-Two Interactive Software, Inc. -- http://www.take2games.com/
-- is a global publisher, developer and distributor of
interactive entertainment software, hardware and accessories.
The company operates in two segments: publishing and
distribution. The publishing segment consists of Rockstar Games,
2K Games, 2K Sports and 2K Play publishing labels. The company
develops, markets and publishes software titles for gaming and
entertainment hardware platforms, including Sony's PLAYSTATION3
(PS3) and PlayStation2 (PS2) computer entertainment systems;
Sony's PSP (PlayStationPortable) (PSP) system; Microsoft's Xbox
360 (Xbox 360) video game and entertainment system; Nintendo's
Wii (Wii) and DS (DS) systems, and for the personal computers
(PC) and Games for Windows. The company's distribution segment,
which includes its Jack of All Games subsidiary, distributes its
products, as well as software, hardware and accessories produced
by others to retail outlets in North America.
TOLL BROTHERS: Still Faces Amended Complaint in Securities Suit
---------------------------------------------------------------
Toll Brothers, Inc., continues to face an amended complaint in a
securities class action suit in the U.S. District Court for the
Eastern District of Pennsylvania.
On April 17, 2007, a securities class action suit was filed
against the company and Robert I. Toll and Bruce E. Toll on
behalf of the purported class of purchasers of the company's
common stock between Dec. 9, 2004 and Nov. 8, 2005.
The original plaintiff has been replaced by two new lead
plaintiffs: The City of Hialeah Employees' Retirement System and
the Laborers Pension Trust Funds for Northern California.
On August 14, 2007, an amended complaint was filed and these
individual defendants, who are directors and/or officers of Toll
Brothers, Inc., were added to the suit: Zvi Barzilay, Joel H.
Rassman, Robert S. Blank, Richard J. Braemer, Carl B. Marbach,
Paul E. Shapiro and Joseph R. Sicree.
The amended complaint filed on behalf of the purported class
alleges that the defendants violated federal securities laws by
issuing various materially false and misleading statements that
had the effect of artificially inflating the market price of our
stock. The plaintiffs further allege that the individual
defendants sold shares for substantial gains during the class
period.
The purported class is seeking compensatory damages, counsel
fees, and expert costs.
No further updates were reported in the company's Dec. 21, 2009,
Form 10-K filing with the U.S. Securities and Exchange Commission
for the fiscal year ended Oct. 31, 2009.
Toll Brothers, Inc. -- http://www.tollcareercenter.com/-- is
engaged in designing, building, marketing and arranging finance
for single-family detached and attached homes in luxury
residential communities. The company is also involved, directly
and through joint ventures, in projects where it is building, or
converting existing rental apartment buildings into high-, mid-
and low-rise luxury homes.
UNITED WESTERN: Bank Unit's Motion to Dismiss Remains Pending
-------------------------------------------------------------
United Western Bank's Motion to Dismiss plaintiffs' claims
against it in the suit styled Anita Hunter, et. al., v. Citibank,
N.A., et al., remains pending, according to United Western
Bancorp, Inc.'s Nov. 4, 2009, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept.
30, 2009.
United Western Bank is the principal subsidiary of United Western
Bancorp
The Bank received this class action complaint in July of 2009
brought by seven named plaintiffs on behalf of a class of
approximately 330 similarly situated people residing throughout
the United States, each of whom lost substantial sums ("Exchange
Funds") entrusted to seven qualified intermediaries ("QIs") to
facilitate their respective Internal Revenue Code Section 1031
Exchanges.
According to the complaint, the QIs were controlled by an
individual named Edward Okun and certain other individuals who
would gain access to the Exchange Funds and convert the Exchange
Funds to their own use for personal gain.
The plaintiffs seek class certification for all similarly
situated plaintiffs who lost Exchange Funds when they placed such
funds using the QIs.
One of the QIs maintained accounts at the Bank for the purpose of
holding Exchange Funds.
The plaintiffs allege that the Bank knowingly aided and abetted
breaches of fiduciary duties by Mr. Okun by facilitating wire
transfers of Exchange Funds from accounts at the QI at the Bank
to accounts controlled by Mr. Okun and his related entities at
other financial institutions.
On Oct. 2, 2009, the Bank filed a Motion to Dismiss with the
court requesting the court to dismiss plaintiffs' claims against
the Bank.
United Western Bancorp, Inc. -- http://www.uwbancorp.com/-- is a
unitary thrift holding company. The company, through its
principal subsidiary, United Western Bank is focused on expanding
its community-based network across Colorado's Front Range market
and mountain communities. The Colorado Front Range area spans
the eastern slope of Colorado's Rocky Mountains, from Pueblo to
Fort Collins, and includes the metropolitan Denver marketplace,
as well as certain mountain communities. During the year ending
Dec. 31, 2008, the Company had seven full service banking
locations in the metropolitan Denver marketplace and a loan
production office servicing the Aspen and Roaring Fork Valley
market areas.
UNITED WESTERN: Faces Amended "Richoz" Lawsuit in Illinois
----------------------------------------------------------
United Western Bancorp, Inc., continues to defend an amended
class action complaint in the U.S. District Court for the
Northern District of Illinois, Eastern Division, according to the
company's Nov. 4, 2009, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Sept. 30, 2009.
The case is captioned William R. and Carolyn Richoz, et al. v.
United Western Trust Company f/k/a Sterling Trust and United
Western Bancorp, Inc.
In October of 2009, plaintiffs filed an amended class action
complaint.
UW Trust Company and the company will request that plaintiffs
amend the complaint to provide for the correct name of UW Trust
Company.
Plaintiffs allege that they were damaged when they invested
proceeds from their self-directed individual retirement accounts
with InvestForClosures and other related entities using UW Trust
Company as custodian for such investments.
Plaintiffs claim UW Trust Company breached its fiduciary duties
owed to plaintiffs as custodian of individual retirement accounts
set up through UW Trust Company by plaintiffs.
Plaintiffs also allege that UW Trust Company knew that these
investment were part of a Ponzi scheme to defraud investors, that
UW Trust Company's actions violated the Texas Securities Act,
Illinois securities laws and the Illinois Consumer Fraud Act and
that UW Trust Company was unjustly enriched in excess of $5
million, should pay compensatory damages of $5 million and
exemplary damages in the amount of $20 million.
United Western Bancorp, Inc. -- http://www.uwbancorp.com/-- is a
unitary thrift holding company. The company, through its
principal subsidiary, United Western Bank is focused on expanding
its community-based network across Colorado's Front Range market
and mountain communities. The Colorado Front Range area spans
the eastern slope of Colorado's Rocky Mountains, from Pueblo to
Fort Collins, and includes the metropolitan Denver marketplace,
as well as certain mountain communities. During the year ending
Dec. 31, 2008, the Company had seven full service banking
locations in the metropolitan Denver marketplace and a loan
production office servicing the Aspen and Roaring Fork Valley
market areas.
VCG HOLDING: Facing "Ostry" Suit in Colo. over Lowrie Proposal
--------------------------------------------------------------
VCG Holding Corp. faces a complaint over an agreement entered
into in connection with Troy Lowrie's proposal to acquire all of
the outstanding shares of common stock of the company, according
to the company's Dec. 11, 2009, Form 8-K filing with the U.S.
Securities and Exchange Commission.
On Dec. 11, 2009, the company was notified of a complaint filed
by Brandon Ostry in the District Court in Jefferson County,
Colorado.
In the complaint, the Plaintiff purports to bring a class action
lawsuit against the company's Chief Executive Officer, Troy
Lowrie and Lowrie Management, LLLP.
The complaint was filed by the Plaintiff on behalf of himself and
all others similarly situated in connection with the proposal by
Mr. Lowrie, Lowrie Management, LLLP and Family Dog, LLC to
acquire all of the outstanding shares of common stock of the
company.
The complaint alleges, among other things, that the consideration
in the Proposal is inadequate and that Mr. Lowrie has conflicts
of interest with respect to the Proposal and has breached his
fiduciary duties under Colorado law in connection with the
Proposal.
The complaint seeks, among other things, certification of the
Plaintiff as a class representative, an injunction enjoining the
consummation of the Proposal, rescinding the transaction if it is
consummated or awarding alleged recessionary damages, an
accounting for alleged damages, profits and special benefits
obtained and for the costs of maintaining the action, including
reasonable attorneys' and experts' fees, and such other relief
the court deems just and proper.
VCG Holding Corp. -- http://www.vcgh.com/-- is in the business
of acquiring, owning and operating nightclubs, which provide live
adult entertainment, restaurant and beverage services.
W HOLDING: Continues to Defend Consolidated Amended Suit in PR
--------------------------------------------------------------
W Holding Company, Inc., continues to defend a consolidated
amended complaint filed in the U.S. District Court for the
District of Puerto Rico alleging fraudulent lending scheme,
according to the company's Dec. 21, 2009, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Sept. 30, 2009.
In September and October 2007, three separate complaints,
entitled:
-- Hildenbrand v. W Holding Company, Inc., et al.,
C.A.No. 07-1886 FAB (D.P.R.),
-- Webb v. W Holding Company, Inc., et al.,
C.A.No. 07-1915 FAB (D.P.R.), and
-- Saavedra v. W Holding Company, Inc., et al.,
C.A.No. 07-1931 FAB (D.P.R),
were filed as putative class actions against the company, its
wholly-owned commercial bank subsidiary, Westernbank Puerto Rico,
and certain of their current or former officers and directors.
Thereafter, all three cases were consolidated into the
Hildenbrand action.
Following the filing of motions mandated by statute, the Court
appointed Felix Rivera, Jose A. Nicolao, Fundacion Rios Pasarell,
Inc. and Efren E. Moreno as lead plaintiffs in Hildenbrand.
Pursuant to an agreed scheduling order, the lead plaintiffs'
Consolidated Amended Complaint was filed April 28, 2008.
The complaint names as defendants the company and Westernbank, as
well as current and former officers of the company and
Westernbank.
The complaint alleges that the individual defendants engaged the
company and Westernbank in a fraudulent lending scheme and issued
misleading information to the market, principally in connection
with the timing and reporting of impairments to loans to Inyx,
Inc.
Plaintiffs allege that these actions artificially inflated the
trading prices of the company's securities. The plaintiffs
brought the action on behalf of all those who purchased the
company's securities during the period between April 24, 2006 and
June 26, 2007, claiming violation of Section 10(b) of the
Exchange Act (and Rule 10b-5 promulgated thereunder) by the
Company, Westernbank and the individual defendants, as well as
violation of Section 20(a) of the Exchange Act by the individual
defendants.
Plaintiffs are seeking unspecified damages for the class arising
from alleged economic losses from investing in the company's
securities.
The company and individual defendants filed motions to dismiss,
arguing that the Consolidated Amended Complaint lacks
particularized factual allegations required to state claims for
securities fraud under Sections 10(b) and 20(a). Briefing on the
motions was completed on Sept. 10, 2008.
On March 24, 2009, the Court denied the defendants' motions to
dismiss.
On April 7, 2009, the company and the individual defendants,
except for a former officer of the company and Westernbank, filed
a motion for reconsideration or, in the alternative, for
certification of an interlocutory appeal, and the former officer
of the company and Westernbank joined in that motion on April 15,
2009.
Discovery was stayed while the defendants' motion was pending.
After briefing by the parties, the defendants' motion for
reconsideration and the request for certification of an
interlocutory appeal were denied by the Court on July 28, 2009.
On Aug. 11, 2009, the company and Westernbank filed their answer
to the Consolidated Amended Complaint, denying liability and
raising numerous affirmative defenses to the claims asserted
against them.
On Aug. 25, 2009, all individual defendants, except for a former
officer of the company and Westernbank, filed their answers to
the Consolidated Amended Complaint, also denying liability and
raising numerous affirmative defenses to the claims asserted
against them.
On Oct. 13, 2009, a former officer of the company and Westernbank
filed his answer to the Consolidated Amended Complaint, denying
liability and raising numerous affirmative defenses, and also
asserting cross-claims against the other defendants, including
the company and Westernbank, and third-party claims against
numerous other current or former officers, directors, or
shareholders. In his cross-claims, the former officer of the
company and Westernbank claims a right to indemnification for any
judgment entered against him and a right to join the class as a
purchaser of Company stock during the alleged class period.
The company, Westernbank, and several individual and third-party
defendants have moved to dismiss the claims asserted by the
former officer and also moved to strike portions of his answer.
The former officer has responded to those motions, including a
request for leave to amend.
The initial pre-trial conference was set for Dec. 18, 2009, and
preliminary dates for the end of discovery and trial are set for
May 10, 2010 and Aug. 2, 2010, respectively, although the parties
have agreed to request an extension of these dates at the initial
pre-trial conference.
W Holding Company, Inc. -- http://www.wholding.com/-- is the
financial holding company for Westernbank Puerto Rico, the
second-largest commercial bank in Puerto Rico, based on total
assets, operating through 56 full-fledged branches, including 20
Expresso of Westernbank branches), including 33 in the
southwestern region of Puerto Rico, 7 in the northeastern region,
14 in the San Juan Metropolitan area and 2 in the eastern region
of Puerto Rico, and a fully functional banking site on the
Internet. W Holding also owns Westernbank Insurance Corp., a
general insurance agent placing property, casualty, life and
disability insurance, whose results of operations and financial
condition are reported on a consolidated basis.
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Class Action Reporter is a daily newsletter, co-published by
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Editors.
Copyright 2010. All rights reserved. ISSN 1525-2272.
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