/raid1/www/Hosts/bankrupt/CAR_Public/100513.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, May 13, 2010, Vol. 12, No. 93
Headlines
ALTRIA GROUP: Intends to File for Rehearing in "Scott" Suit
ALTRIA GROUP: Arguments in "Caronia" Suit Scheduled for May 21
ALTRIA GROUP: Trial in "Donovan" Suit Set to Begin on July 5
ALTRIA GROUP: "Peoples" Suit in Georgia Concluded
ALTRIA GROUP: Eleventh Circuit Dismisses "Jackson" Suit Appeal
ALTRIA GROUP: Continues to Defend Four Suits in Canada
ALTRIA GROUP: Appeal in Israel "Lights" Suit Remains Pending
AMERICAN EXPRESS: Accused in New York of Deceptive Trade
AUSTRALIAN BANKS: 10 Banks Sued for Alleged Fee Gouging
BEST BUY: Class Certification in "Holloway" Suit Still Pending
BEZEQ: Israeli Court Okays Misleading Advertising Class Action
BP PLC: Oil Rig Disaster Sets Off Gusher of Work for Attorneys
CALIFORNIA: Cities Sued Over Medical Marijuana Ordinances
CHASE BANK: 3rd Cir. Says Judges Must Decide Class Action Waivers
CHICAGO: Proposes $16.5 Mil. Settlement in Police Custody Lawsuit
CLAIRE'S BOUTIQUES: Recalls 19,000 Charm Bracelet Sets
COUNTY OF SACRAMENTO: Sued Over Plan to Halt Medi-Cal Treatment
DOLE FOODS: Nicaraguans Could Lose $2.3 Million Court Award
E*TRADE FINANCIAL: S.D.N.Y. Rejects Motion to Dismiss Fraud Suit
EXPRESS SCRIPTS: Class Certification in Two Suits Still Pending
EXPRESS SCRIPTS: Class Certification in "Beeman" Suit Pending
EXPRESS SCRIPTS: Motion to Decertify Class in Ala. Suit Pending
EXPRESS SCRIPTS: "Pearson's" Plaintiffs Appeal Dismissal Ruling
EXPRESS SCRIPTS: "Amburgy" Suit in Missouri Closed, Company Says
FATIMA INT'L: Sued in Michigan Over Alleged Ponzi Scheme
HEARTLAND PAYMENT: Interim OK for $4 Mil. Data Breach Settlement
GENTIVA HEALTH: Sued in E.D.N.Y. for Labor Law Violations
GPT GROUP: Update About Threatened Investors' Lawsuit
IRELAND: Government Faces Class Action Over Garda Retirement
LOWER MERION: FBI Can View Pictures & Insurer Denies Coverage
MORTGAGES LTD: Securities Fraud Suit Filed in D. Ariz.
NEW YORK: High Court Affirms Certification of Foster Care Suit
SEACOR HOLDINGS: Motion to Dismiss Suit Remains Pending in Del.
SMITH INT'L: Faces Suits Over Planned Schlumberger Merger
UK HEALTH TRUSTS: Six Doctors Get Okay to Bring Class Action Suit
VOLVO CARS: N.J. Suit Complains About Defective Transmission
*********
ALTRIA GROUP: Intends to File for Rehearing in "Scott" Suit
-----------------------------------------------------------
Philip Morris USA Inc., intends to file a petition for rehearing
after the Louisiana Fourth Circuit Court of Appeal issued a
decision that affirmed in part prior decisions in the "Scott"
class action ordering the defendants to fund a statewide 10-year
smoking cessation program, according to Altria Group, Inc.'s
April 28, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2010.
In July 2003, following the first phase of the trial in the Scott
class action, in which plaintiffs sought creation of a fund to
pay for medical monitoring and smoking cessation programs, a
Louisiana jury returned a verdict in favor of defendants,
including PM USA, in connection with plaintiffs' medical
monitoring claims, but also found that plaintiffs could benefit
from smoking cessation assistance.
The jury also found that cigarettes as designed are not defective
but that the defendants failed to disclose all they knew about
smoking and diseases and marketed their products to minors. In
May 2004, in the second phase of the trial, the jury awarded
plaintiffs approximately $590 million against all defendants
jointly and severally, to fund a 10-year smoking cessation
program.
In June 2004, the court entered judgment, which awarded
plaintiffs the approximately $590 million jury award plus
prejudgment interest accruing from the date the suit commenced.
PM USA's share of the jury award and prejudgment interest has not
been allocated. Defendants, including PM USA, appealed.
Pursuant to a stipulation of the parties, the trial court entered
an order setting the amount of the bond at $50 million for all
defendants in accordance with an article of the Louisiana Code of
Civil Procedure, and a Louisiana statute, fixing the amount of
security in civil cases involving a signatory to the MSA. Under
the terms of the stipulation, plaintiffs reserve the right to
contest, at a later date, the sufficiency or amount of the bond
on any grounds including the applicability or constitutionality
of the bond cap law. In September 2004, defendants collectively
posted a bond in the amount of $50 million ($12.5 million of
which was posted by PM USA).
In February 2007, the Louisiana Fourth Circuit Court of Appeal
issued a ruling on defendants' appeal that, among other things:
affirmed class certification but limited the scope of the class;
struck certain of the categories of damages included in the
judgment, reducing the amount of the award by approximately $312
million; vacated the award of prejudgment interest, which totaled
approximately $444 million as of February 15, 2007; and ruled
that the only class members who are eligible to participate in
the smoking cessation program are those who began smoking before,
and whose claims accrued by, Sept. 1, 1988.
As a result, the Louisiana Court of Appeal remanded the case for
proceedings consistent with its opinion, including further
reduction of the amount of the award based on the size of the new
class.
In March 2007, the Louisiana Court of Appeal rejected defendants'
motion for rehearing and clarification.
In January 2008, the Louisiana Supreme Court denied plaintiffs'
and defendants' petitions for writ of certiorari. Following the
Louisiana Supreme Court's denial of defendants' petition for writ
of certiorari, PM USA recorded a provision of $26 million in
connection with the case and, as of March 31, 2010, has recorded
additional provisions of approximately $5.5 million related to
accrued interest.
In March 2008, plaintiffs filed a motion to execute the
approximately $279 million judgment plus post-judgment interest
or, in the alternative, for an order to the parties to submit
revised damages figures. Defendants filed a motion to have
judgment entered in favor of defendants based on accrual of all
class member claims after Sept. 1, 1988 or, in the alternative,
for the entry of a case management order.
In April 2008, the Louisiana Supreme Court denied defendants'
motion to stay proceedings and the defendants filed a petition
for writ of certiorari with the United States Supreme Court. In
June 2008, the United States Supreme Court denied the defendant's
petition.
Plaintiffs filed a motion to enter judgment in the amount of
approximately $280 million (subsequently changed to approximately
$264 million) and defendants filed a motion to enter judgment in
their favor dismissing the case entirely or, alternatively, to
enter a case management order for a new trial. In July 2008, the
trial court entered an Amended Judgment and Reasons for Judgment
denying both motions, but ordering defendants to deposit into the
registry of the court the sum of $263,532,762 plus post-judgment
interest.
In September 2008, defendants filed an application for writ of
mandamus or supervisory writ to secure the right to appeal with
the Louisiana Fourth Circuit Court of Appeals and, in December
2008, the trial court entered an order permitting the appeal and
approving a $50 million bond for all defendants in accordance
with the Louisiana bond cap law. In April 2009, plaintiffs filed
a cross-appeal seeking to reinstate the June 2004 judgment and to
award the medical monitoring rejected by the jury. Argument
before the Louisiana Court of Appeal was held in September 2009.
On April 23, 2010, the Louisiana Fourth Circuit Court of Appeal
issued a decision that affirmed in part prior decisions ordering
the defendants to fund a statewide 10-year smoking cessation
program.
In its decision, the Court of Appeal amended and, as amended,
affirmed the amended 2008 trial court judgment and ruled that,
although the trial court erred, the defendants have no right to a
trial to determine, among other things, those class members with
valid claims not barred by Louisiana law.
After conducting its own independent review of the record, the
Court of Appeal made its own factual findings with respect to
liability and the amount owed, lowering the amount of the
judgment to approximately $241 million, plus interest commencing
July 21, 2008, the date of entry of the amended judgment (which
as of April 26, 2010 is approximately $25 million).
In its decision, the Court of Appeal disallowed approximately $80
million in post-judgment interest. In addition, the Court of
Appeal declined plaintiffs' cross appeal requests for a medical
monitoring program and reinstatement of other components of the
smoking cessation program.
The Court of Appeal specifically reserved to the defendants the
right to assert claims to any unspent or unused surplus funds at
the termination of the smoking cessation program. PM USA
currently intends to file a petition for rehearing.
Altria Group, Inc. -- http://www.altria.com/-- directly or
indirectly owns 100% of each of Philip Morris USA Inc., U.S.
Smokeless Tobacco Company LLC, Ste. Michelle Wine Estates Ltd.,
and Philip Morris Capital Corporation. Altria holds a continuing
economic and voting interest in SABMiller plc. The brand
portfolio of Altria's tobacco operating companies includes such
well-known names as Marlboro, Copenhagen, Skoal and Black & Mild.
Ste. Michelle produces and markets premium wines sold under
twenty different labels including Chateau Ste. Michelle and
Columbia Crest, and it exclusively distributes and markets
Antinori, Champagne Nicolas Feuillatte and Villa Maria Estate
products in the United States.
ALTRIA GROUP: Arguments in "Caronia" Suit Scheduled for May 21
--------------------------------------------------------------
Arguments in the "Caronia" suit against Philip Morris USA Inc.,
pending in the U.S. District Court for the Eastern District of
New York, is set for May 21, 2010, according to Altria Group,
Inc.'s April 28, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended March 31, 2010.
Since the dismissal in May 1996 of a purported nationwide class
action brought on behalf of allegedly addicted smokers,
plaintiffs have filed numerous putative smoking and health class
action suits in various state and federal courts. In general,
these cases purport to be brought on behalf of residents of a
particular state or states (although a few cases purport to be
nationwide in scope) and raise addiction claims and, in many
cases, claims of physical injury as well.
Class certification has been denied or reversed by courts in 58
smoking and health class actions involving PM USA in Arkansas
(1), the District of Columbia (2), Florida (2), Illinois (3),
Iowa (1), Kansas (1), Louisiana (1), Maryland (1), Michigan (1),
Minnesota (1), Nevada (29), New Jersey (6), New York (2), Ohio
(1), Oklahoma (1), Pennsylvania (1), Puerto Rico (1), South
Carolina (1), Texas (1) and Wisconsin (1).
A purported class actions pending against PM USA has been brought
in New York (Caronia, filed in January 2006 in the U.S. District
Court for the Eastern District of New York) on behalf of the
state's respective residents who: are age 50 or older; have
smoked the Marlboro brand for 20 pack-years or more; and have
neither been diagnosed with lung cancer nor are under
investigation by a physician for suspected lung cancer.
The plaintiffs seek to impose liability under various product-
based causes of action and the creation of a court-supervised
program providing members of the purported class Low Dose CT
Scanning in order to identify and diagnose lung cancer. The suit
does not seek punitive damages.
In February 2010, the trial court granted in part PM USA's
summary judgment motion, dismissing plaintiffs' strict liability
and negligence claims and certain other claims, granted
plaintiffs leave to amend their complaint to allege a medical
monitoring cause of action and requested further briefing on PM
USA's summary judgment motion as to plaintiffs' implied warranty
claim and, if plaintiffs amend their complaint, their medical
monitoring claim.
On March 10, 2010, plaintiffs filed their amended complaint, and
on March 31, 2010, PM USA moved to dismiss the implied warranty
and medical monitoring claims. Argument is set to be held May
21, 2010.
Altria Group, Inc. -- http://www.altria.com/-- directly or
indirectly owns 100% of each of Philip Morris USA Inc., U.S.
Smokeless Tobacco Company LLC, Ste. Michelle Wine Estates Ltd.,
and Philip Morris Capital Corporation. Altria holds a continuing
economic and voting interest in SABMiller plc. The brand
portfolio of Altria's tobacco operating companies includes such
well-known names as Marlboro, Copenhagen, Skoal and Black & Mild.
Ste. Michelle produces and markets premium wines sold under
twenty different labels including Chateau Ste. Michelle and
Columbia Crest, and it exclusively distributes and markets
Antinori, Champagne Nicolas Feuillatte and Villa Maria Estate
products in the United States.
ALTRIA GROUP: Trial in "Donovan" Suit Set to Begin on July 5
------------------------------------------------------------
The trial in the "Donovan" suit against Philip Morris USA Inc.,
pending in the U.S. District Court for the District of
Massachusetts, is set for July 5, 2010, according to Altria
Group, Inc.'s April 28, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended March
31, 2010.
Since the dismissal in May 1996 of a purported nationwide class
action brought on behalf of allegedly addicted smokers,
plaintiffs have filed numerous putative smoking and health class
action suits in various state and federal courts. In general,
these cases purport to be brought on behalf of residents of a
particular state or states (although a few cases purport to be
nationwide in scope) and raise addiction claims and, in many
cases, claims of physical injury as well.
Class certification has been denied or reversed by courts in 58
smoking and health class actions involving PM USA in Arkansas
(1), the District of Columbia (2), Florida (2), Illinois (3),
Iowa (1), Kansas (1), Louisiana (1), Maryland (1), Michigan (1),
Minnesota (1), Nevada (29), New Jersey (6), New York (2), Ohio
(1), Oklahoma (1), Pennsylvania (1), Puerto Rico (1), South
Carolina (1), Texas (1) and Wisconsin (1).
A purported class actions pending against PM USA has been brought
Massachusetts (Donovan, filed in December 2006 in the U.S.
District Court for the District of Massachusetts) on behalf of
the state's respective residents who: are age 50 or older; have
smoked the Marlboro brand for 20 pack-years or more; and have
neither been diagnosed with lung cancer nor are under
investigation by a physician for suspected lung cancer.
The plaintiffs cases seek to impose liability under various
product-based causes of action and the creation of a court-
supervised program providing members of the purported class Low
Dose CT Scanning in order to identify and diagnose lung cancer.
The Donovan suit does not seek punitive damages.
Defendants' motions for summary judgment and judgment on the
pleadings and plaintiffs' motion for class certification are
pending.
The Supreme Judicial Court of Massachusetts, in answering
questions certified to it by the district court, held in October
2009 that under certain circumstances state law recognizes a
claim by individual smokers for medical monitoring despite the
absence of an actual injury.
The court also ruled that whether or not the case is barred by
the applicable statute of limitations is a factual issue to be
determined by the trial court. The case has been remanded to
federal court for further proceedings and is set for trial on
July 5, 2010.
Altria Group, Inc. -- http://www.altria.com/-- directly or
indirectly owns 100% of each of Philip Morris USA Inc., U.S.
Smokeless Tobacco Company LLC, Ste. Michelle Wine Estates Ltd.,
and Philip Morris Capital Corporation. Altria holds a continuing
economic and voting interest in SABMiller plc. The brand
portfolio of Altria's tobacco operating companies includes such
well-known names as Marlboro, Copenhagen, Skoal and Black & Mild.
Ste. Michelle produces and markets premium wines sold under
twenty different labels including Chateau Ste. Michelle and
Columbia Crest, and it exclusively distributes and markets
Antinori, Champagne Nicolas Feuillatte and Villa Maria Estate
products in the United States.
ALTRIA GROUP: "Peoples" Suit in Georgia Concluded
-------------------------------------------------
The "Peoples" suit where Altria Group, Inc., is a named defendant
has concluded after the time for the plaintiffs to file an appeal
expired, according to the company's April 28, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended March 31, 2010.
In November 2008, a purported class action naming PM USA, Altria
Group, Inc. and the other major cigarette manufacturers as
defendants was filed in the U.S. District Court for the Northern
District of Georgia on behalf of a purported class of cigarette
smokers who seek medical monitoring (Peoples).
Plaintiffs alleged that the tobacco companies conspired to
convince the National Cancer Institute to not recommend spiral CT
scans to screen for lung cancer and plaintiffs assert claims
based on defendants' purported violations of RICO.
The complaint identified the purported class as all residents of
the State of Georgia who, by virtue of their age and history of
smoking cigarettes, are at increased risk for developing lung
cancer; are 50 years of age or older; have cigarette smoking
histories of 20 pack-years or more; and are covered by an
insurance company, Medicare, Medicaid or a third party medical
payor.
Plaintiffs sought relief in the form of the creation of a fund
for medical monitoring and punitive damages.
In September 2009, the district judge entered judgment against
plaintiffs and dismissed the case, concluding that plaintiffs
failed to allege sufficient facts to state a claim for relief
under RICO.
The time for plaintiffs to file an appeal in Peoples has expired
and the case has concluded.
Altria Group, Inc. -- http://www.altria.com/-- directly or
indirectly owns 100% of each of Philip Morris USA Inc., U.S.
Smokeless Tobacco Company LLC, Ste. Michelle Wine Estates Ltd.,
and Philip Morris Capital Corporation. Altria holds a continuing
economic and voting interest in SABMiller plc. The brand
portfolio of Altria's tobacco operating companies includes such
well-known names as Marlboro, Copenhagen, Skoal and Black & Mild.
Ste. Michelle produces and markets premium wines sold under
twenty different labels including Chateau Ste. Michelle and
Columbia Crest, and it exclusively distributes and markets
Antinori, Champagne Nicolas Feuillatte and Villa Maria Estate
products in the United States.
ALTRIA GROUP: Eleventh Circuit Dismisses "Jackson" Suit Appeal
--------------------------------------------------------------
The U.S. Court of Appeals for the Eleventh Circuit has dismissed
the appeal of the plaintiffs in the "Jackson" suit against Altria
Group, Inc., for failing to prosecute, according to the company's
April 28, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2010.
A purported class action similar to the "Peoples" suit was filed
in the U.S. District Court for the Northern District of Georgia
in May 2009. The suit was filed on behalf of a purported class of
cigarette smokers who seek medical monitoring.
Altria Group, Inc., and PM USA are named as defendants.
In February 2010, the district court granted defendants' motions
to dismiss.
Plaintiffs appealed this decision to the U.S. Court of Appeals
for the Eleventh Circuit, but on April 13, 2010, the appellate
court dismissed plaintiffs' appeal for failure to prosecute.
Altria Group, Inc. -- http://www.altria.com/-- directly or
indirectly owns 100% of each of Philip Morris USA Inc., U.S.
Smokeless Tobacco Company LLC, Ste. Michelle Wine Estates Ltd.,
and Philip Morris Capital Corporation. Altria holds a continuing
economic and voting interest in SABMiller plc. The brand
portfolio of Altria's tobacco operating companies includes such
well-known names as Marlboro, Copenhagen, Skoal and Black & Mild.
Ste. Michelle produces and markets premium wines sold under
twenty different labels including Chateau Ste. Michelle and
Columbia Crest, and it exclusively distributes and markets
Antinori, Champagne Nicolas Feuillatte and Villa Maria Estate
products in the United States.
ALTRIA GROUP: Continues to Defend Four Suits in Canada
------------------------------------------------------
Altria Group, Inc., continues to defend four actions in various
Canadian provinces, according to the company's April 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2010.
In June and July 2009, PM USA and Altria Group, Inc. were named
as defendants, along with other cigarette manufacturers, in four
actions filed in various Canadian provinces.
In the Province of Saskatchewan, plaintiffs seek class
certification on behalf of individuals who suffer or have
suffered from various diseases including chronic obstructive
pulmonary disease, emphysema, heart disease or cancer.
In each of the other actions, plaintiffs seek certification of a
class of all individuals who smoked defendants' cigarettes.
Altria Group, Inc. -- http://www.altria.com/-- directly or
indirectly owns 100% of each of Philip Morris USA Inc., U.S.
Smokeless Tobacco Company LLC, Ste. Michelle Wine Estates Ltd.,
and Philip Morris Capital Corporation. Altria holds a continuing
economic and voting interest in SABMiller plc. The brand
portfolio of Altria's tobacco operating companies includes such
well-known names as Marlboro, Copenhagen, Skoal and Black & Mild.
Ste. Michelle produces and markets premium wines sold under
twenty different labels including Chateau Ste. Michelle and
Columbia Crest, and it exclusively distributes and markets
Antinori, Champagne Nicolas Feuillatte and Villa Maria Estate
products in the United States.
ALTRIA GROUP: Appeal in Israel "Lights" Suit Remains Pending
------------------------------------------------------------
The appeal of Philip Morris USA Inc., on the denial of their
motion to dismiss a class action remains pending in the Israel
Supreme Court.
PM USA was named as a defendant in Israel in a "Lights" class
action and a health care cost recovery action.
The defendants' appeal of the district court's denial of their
motion to dismiss was heard by the Israel Supreme Court in March
2005, and the parties are awaiting the court's decision.
No further updates were reported in Altria Group, Inc.'s April
28, 2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended March 31, 2010.
Altria Group, Inc. -- http://www.altria.com/-- directly or
indirectly owns 100% of each of Philip Morris USA Inc., U.S.
Smokeless Tobacco Company LLC, Ste. Michelle Wine Estates Ltd.,
and Philip Morris Capital Corporation. Altria holds a continuing
economic and voting interest in SABMiller plc. The brand
portfolio of Altria's tobacco operating companies includes such
well-known names as Marlboro, Copenhagen, Skoal and Black & Mild.
Ste. Michelle produces and markets premium wines sold under
twenty different labels including Chateau Ste. Michelle and
Columbia Crest, and it exclusively distributes and markets
Antinori, Champagne Nicolas Feuillatte and Villa Maria Estate
products in the United States.
AMERICAN EXPRESS: Accused in New York of Deceptive Trade
--------------------------------------------------------
Dan McCue at Courthouse News Service reports that American
Express and Travelocity.com colluded to charge users of AmEx
prepaid gift cards more than for the same services than they
charge other customers, a class action claims in Manhattan
Federal Court.
Named plaintiff Morris Wilner said he received a $200 American
Express prepaid gift car for signing up with Verizon for
telecommunications services. He said he discovered the pricing
scheme when he tried to use the card to pay for a trip.
Mr. Wilner said he visited American Express's Web site, and was
directed to Travelocity's Awards site, where, using the gift
card, he paid $35 more for airline tickets than he would have had
he paid through other means.
Mr. Wilner claims he went to Avis Rent-A-Car's Web site and found
that renting a standard or full-size car would cost about $70
more per week using the AmEx gift card.
Mr. Wilner claims the price discrepancy led him to believe that
based on the need to coordinate the gift card codes on prepaid
cards with the merchants, defendants American Express Prepaid
Card Management Corp. and American Express Related Services
Company "agreed to and authorized the higher prices for gods and
services paid for by the gift card."
He claims that Travelocity.com not only colluded to charge higher
prices, but agreed not to inform users of the gift cards that
they were paying more for goods and services than people who paid
by other means.
Mr. Wilner seeks compensatory and statutory class damages for
breach of contract, interference with contract and economic
advantage, and deceptive trade. He claims that at least 20,000
of the gift cards have been distributed.
The case is Wilner v. American Express Prepaid Card Management
Corporation, et al., Case No. 10-cv-03655 (S.D.N.Y.) (Baer, J.).
The Plaintiff is represented by:
Abraham Kleinman, Esq.
ABRAHAM KLEINMAN KLEINMAN LLC
626 RXR Plaza
Uniondale, NY 11556-0626
Telephone: 516-522-2621
- and -
Daniel Edelman, Esq.
Cathleen Combs, Esq.
EDELMAN, COMBS, LATTURNER & GOODWIN, LLC
120 South LaSalle St., Suite 1800
Chicago, IL 60603
Telephone: 312-739-4200
AUSTRALIAN BANKS: 10 Banks Sued for Alleged Fee Gouging
-------------------------------------------------------
Adele Ferguson and Michael West at The Sydney Morning Herald
reports that Australia's banks face the biggest class action in
corporate history for overcharging their millions of customers
about $5 billion in penalty and late fees over the past six
years.
Leading litigation funder IMF Australia will pay for more than 10
class actions against the banks, including the big four --
Commonwealth Bank, ANZ, Westpac and National Australia Bank -- in
an effort to claw back at least $400 million in what its lawyers
will claim is a systematic gouging of banking customers.
The action comes at a delicate time for the banks as politicians
accuse them of exploiting their heightened market dominance -- in
the aftermath of the global financial crisis -- to rachet up fees
and charges to unreasonable levels.
Besides the big four, another seven Australian banks are expected
to be targeted for alleged wrongful and unfair overcharging.
These include the Bank of Queensland, Bendigo and Adelaide Bank,
Suncorp, HSBC and Citibank.
For the first time, the Reserve Bank of Australia revealed last
year that banks charged "exception fees" of almost $1.2 billion
in the 2008 financial year. No figures are available before 2008
for exception fees prior to this but IMF estimates they could
total more than $5 billion over six years.
At $1.2 billion, the exception fees are but a fraction of the $10
billion plus that banks levy in fees and charges each year.
Exception fees typically include four types of penalties for
which customers are stung by the banks. These are honour fees
(generally a penalty fee of $40 incurred when a customer
overdraws on a bank account or exceeds an agreed overdraft limit
and the bank pays it out); dishonour fees for cheques that
bounce; late payment fees for credit cards or loan accounts; and
fees for overdrawing on a credit card. These fees typically range
between $25 and $60 on each transaction.
IMF, which has set up a website to attract possible participants
in the class action, will test the legal basis of these fees in
its class action.
"Banks have made billions from these unfair charges," the website
says, urging anyone with at least one exception fee over the past
six years to sign up.
The central legal argument is that one party to a contract, when
it seeks damages from the other party for breaking a contractual
term such as a late payment, can only recover a reasonable pre-
estimate of its actual costs.
In the case of the fees being charged by the banks, which are
many multiples of their actual cost, IMF is expected to contend
that the fees were not legally enforceable and customers should
therefore be entitled to a refund.
Banks generally charge penalty interest as well as an exception
fee, yet the bank often has security over the family home to
cover the amount overdrawn. They also have the technology to stop
customers from going over an agreed limit.
Claims against the banks can go back six years and will involve
repayment of those fees plus interest from the date of the
deduction. IMF subsidiary Financial Redress will organise each
class action.
The case against the banks will begin this week with a dedicated
website to register claims, after the government decided to carve
shareholder class actions from managed investment schemes after a
controversial Federal Court decision last October found they met
the definition of MIS in the Corporations Act and needed to be
registered.
The decision stopped at least 10 class actions in their tracks,
but these actions will now proceed.
Personal claims are expected to average $2000, while business
claims are likely to average $5000.
In recent months, some banks, including National Australia Bank,
abolished these fees, while others have reduced them. From
February 1, NAB launched an advertising campaign, "We're
abolishing our most annoying business fees." In the advertisement
it says: "It's just another way we give our business customers
more."
The Australian Bankers' Association said it had not heard that
IMF was to take this action. "Ultimately, it is for the courts to
decide the merits of the claim," acting chief executive Tony
Burke said.
A spokesperson for ANZ said: "We decline to comment."
A spokeswoman for Westpac pointed out the bank had already taken
action to lower its exception fees. "We were the first bank to
cut our exception fees down to $9," she said. As for the pending
class action, she said: "It is hard to make specific comment
until we see the case."
BEST BUY: Class Certification in "Holloway" Suit Still Pending
--------------------------------------------------------------
The certification in a purported class action against Best Buy
Co., Inc., remains pending in the U.S. District Court for the
Northern District of California, according to the company's April
28, 2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Feb. 27, 2010.
In December 2005, a purported class action lawsuit captioned,
Jasmen Holloway, et al. v. Best Buy Co., Inc., was filed against
us in the U.S. District Court for the Northern District of
California.
This federal court action alleges that the company discriminates
against women and minority individuals on the basis of gender,
race, color and/or national origin in its stores with respect to
our employment policies and practices.
The action seeks an end to discriminatory policies and practices,
an award of back and front pay, punitive damages and injunctive
relief, including rightful place relief for all class members.
A class certification hearing was held in June 2009, and the
company awaits the Court's decision.
Best Buy Co., Inc. -- http://www.bestbuy.com/-- sells consumer
electronics, home office products, entertainment software,
appliances and related services. The company operates retail
stores and Web sites under the brand names Best Buy (BestBuy.com,
BestBuy.ca, BestBuy.com.cn, espanol.BestBuy.com and
BestBuyMobile.com), The Carphone Warehouse (Carphone
Warehouse.com), Five Star (Five-Star.cn), Future Shop
(FutureShop.ca), Geek Squad (GeekSquad.com and GeekSquad.ca),
Magnolia Audio Video (MagnoliaAV.com). It operates through two
business segments: Domestic and International. The Domestic
segment consists of the store, call center and online operations
in all states, districts and territories of the United States
operating under the brand names Best Buy, Best Buy Mobile, Geek
Squad, Magnolia Audio Video and Speakeasy. The International
segment is comprised all Canada store, call center and online
operations, under the brand names Best Buy, Best Buy Mobile,
Future Shop and Geek Squad.
BEZEQ: Israeli Court Okays Misleading Advertising Class Action
--------------------------------------------------------------
Hila Raz at the Haaretz Newspaper reports that the Tel Aviv
District Court approved a request last week to file a class-
action suit against Bezeq for misleading advertisements.
In the petition submitted in 2006, Guy Aloni claimed that the
phone company had misled consumers in its explanations on how it
charges for calls from Bezeq landlines to cell phones. Bezeq's
advertisements said that calls to cell phones would cost 44
agorot a minute, while the actual charge was 47.65 to 52 agorot,
Aloni claimed.
Bezeq argued that at the beginning of the campaign it charged
44.33 agorot a minute, which it then raised to 44.41 agorot.
Since the campaign stated that the price was "about 44 agorot,"
this was not misleading, the company said.
Judge Michal Agmon accepted this part of Bezeq's argument, but
she said that in calling the price "all-inclusive," Bezeq's
campaign was misleading because the company charged
interconnection fees for calls made to other carriers on top of
the 44-agorot base price.
Bezeq claimed that its ad had directed customers to its Web site
for more information. The judge rejected this argument. "In an
advertising campaign focused on the price per minute, there is
potential for taking advantage of the fact that most consumers
are misled into thinking that the final price is the one being
publicized," she wrote.
The group of plaintiffs whom the suit says were harmed by Bezeq's
actions are "Bezeq customers who made calls from their Bezeq
landlines to cell phones from July 1, 2005 to September 1, 2005,
possibly later."
BP PLC: Oil Rig Disaster Sets Off Gusher of Work for Attorneys
--------------------------------------------------------------
Mary Alice Robbins at the Texas Lawyer reports that from Texas to
Florida, the litigation rush is on, as thousands of gallons of
oil spill into the Gulf of Mexico in the wake of the April 20
explosion of a drilling rig off the coast of Louisiana.
Injured workers and families of the 11 individuals missing and
presumed dead after the Deepwater Horizon rig exploded and then
sank have filed personal injury or wrongful death suits.
Shrimpers, charter fishing boats and others who engage in
business along the Gulf Coast have filed individual suits or
class actions in which they allege damages to their livelihoods.
"It's sort of like a gold rush for clients," says:
Brian B. O'Neill, Esq.
FAEGRE & BENSON LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-3901
Telephone: 612-766-8318
E-mail: BOneill@faegre.com
who serves as lead plaintiffs counsel in the litigation stemming
from the Exxon Valdez oil spill that occurred in 1989 off the
coast of Alaska.
Mr. O'Neill, who says he's still involved in the Valdez
litigation, has some advice for lawyers itching to file suits
over the Gulf spill: "If I were a lawyer getting involved in
these cases, I would make sure I have the financial and emotional
resources to wage this war."
The plaintiffs lawyers involved in the consolidated Valdez cases
invested $200 million worth of time and maybe $40 million worth
of cash, Mr. O'Neill says.
Exxon Corp.'s counsel in the Valdez litigation is:
James F. Neal, Esq.
NEAL & HARWELL, PLC
150 4th Avenue North
Nashville, TN 37219-2498
Telephone: (615) 244-1713
E-mail: jneal@nealharwell.com
Mr. Neal, whose voicemail indicated his law office was affected
by the recent floods in Nashville, did not return a telephone
call and an e-mail by press time May 6.
According to the U.S. Supreme Court's 2008 opinion in Exxon
Shipping Co., et al. v. Baker, et al., an Alaskan jury awarded
$287 million in compensatory damages to some plaintiffs, while
other plaintiffs settled their compensatory claims for $22.6
million. As noted in the opinion, the jury also awarded $5
billion in punitive damages, which the 9th U.S. Circuit Court of
Appeals reduced to $2.5 billion. In its 5-3 decision in Exxon
Shipping, the Supreme Court limited the punitive damages to
$507.7 million.
Based on his work in the Valdez case (originally represented the
plaintiffs in the Valdez cases before a conflict of interest
forced him to bow out):
Stephen F. Susman, Esq.
SUSMAN GODFREY L.L.P.
1000 Louisiana, Suite 5100
Houston, TX 77002-5096
Telephone: (713) 651-9366
E-mail: ssusman@susmangodfrey.com
predicts there will be "a huge war" on the defendants' side as to
who was at fault for what happened to the Deepwater Horizon rig.
"Everyone's going to be blaming everyone else," Mr. Susman says.
Plaintiffs attorney:
W. Mark Lanier, Esq.
THE LANIER LAW FIRM, PC
6810 FM 1960 West
Houston, Texas 77069
Telephone: (713) 659-5200
says the Gulf oil spill is much bigger than the Valdez spill.
"This makes the Valdez look like an oil leak in a car," Mr.
Lanier says. "Honestly, this is a monstrosity; it's a
tragedy. . . . There are huge legal problems that need
resolution. It will take the courts to do it."
Mr. Lanier also says, "This is going to be, in my estimation, the
largest tort we've had in this country."
Companies named frequently as defendants in the explosion-related
oil spill suits reviewed by Texas Lawyer are Transocean Ltd., BP
PLC, Halliburton Energy Services Inc. and Cameron International
Corp.
According to an e-mail from BP spokesman Mark Salt, the
Transocean rig was under contract to BP. Salt writes that
Transocean owned and operated the rig, and BP owns the right to
produce and save the oil. Under the Oil Pollution Act, BP has
been named a responsible party, Salt confirms in the e-mail.
In an interview, Mr. Salt says, "We are committed to paying every
legitimate claim."
Transocean spokesman Mike Gesci responded to requests to
interview the company's general counsel and an inquiry about the
firm or firms representing Transocean with an e-mail, which reads
in part: "It is our policy not to comment on pending litigation."
Cameron's attorney:
Howard L. Murphy, Esq.
DEUTSCH, KERRIGAN & STILES
755 Magazine Street
New Orleans, LA 70130
Telephone: (504) 581-5141
E-mail: hmurphy@dkslaw.com
in New Orleans, did not return a telephone call for comment by
press time. Scott Amann, Cameron's vice president for investor
relations, declines comment. As alleged in Nova Affiliated S.A.
v. BP PLC, et al., Case No. 10-cv-01313 (E.D. La.), Cameron
manufactured and/or supplied the Deepwater Horizon's blowout
prevention equipment that failed to operate in the explosion.
Halliburton's attorney for pollution, property damage and
environmental claims stemming from the oil spill:
Donald E. Godwin, Esq.
GODWIN RONQUILLO PC
Renaissance Tower
1201 Elm Street, Suite 1700
Dallas, Texas 75270
Telephone: 214.939.4400
E-mail: dgodwin@GodwinRonquillo.com
says Halliburton was involved in cementing of the well and
provided mud services for the drilling of the well.
Mr. Godwin says his firm has seen petitions in about 55 suits
filed against Halliburton and its affiliates in Florida, Alabama,
Mississippi, Louisiana and Texas, with more continuing to be
filed daily.
"We're still involved in the investigative stage of it," Mr.
Godwin says.
Mr. Godwin says Halliburton, which retained him April 30, "has
been a very old, very significant client of our law firm for many
years."
REFERRALS
In many instances, Texas plaintiff lawyers have gotten involved
in the oil spill litigation as a result of referrals from other
attorneys.
Mr. Lanier says his firm already has more than 100 cases, most of
them received through lawyer referrals.
"We've had two lawyers working around the clock trying to scrub
them to see which ones we want, which we don't," he says.
Mr. Lanier joined several attorneys in filing Nova's class action
in federal court in New Orleans.
"We've been talked to by several dozen lawyers in several
different states," says:
Brent W. Coon, Esq.
BRENT COON & ASSOCIATES
215 Orleans St.
Beaumont, TX 77701
Telephone: 409-835-2666
who predicts that his firm will be working on a number of
different cases involving the oil spill.
Mr. Coon and his firm gained a national reputation representing
plaintiffs in the 2005 explosion of a BP refinery in Texas City.
"We were lead counsel, the liaison counsel for all of those
cases," he says.
What his firm learned from the BP refinery explosion cases, Mr.
Coon says, was to take steps to prevent the potential destruction
of documents or physical evidence a client would be seeking in
discovery. On April 30, 157th District Judge Randy Wilson signed
a temporary restraining order Coon's firm had sought on behalf of
injured worker Stephen Stone and his wife. The couple had filed
Stone, et al. v. Transocean Offshore Deepwater Drilling Inc., et
al., as an intervention in Kleppinger v. Transocean Offshore
Deepwater Drilling Inc., et al.; Kleppinger had been filed April
22 in the 234th District Court in Houston. Mr. Stone, a
longshoreman who lives in Houston, is a friend of an employee of
Mr. Coon's firm and asked the firm to represent him, Mr. Coon
says.
Corpus Christi-based Wigington Rumley & Dunn's involvement in
cases involving the spreading oil slick stems from its
representation of a client in a recent trial in Louisiana.
Wigington associate:
Joseph E. Ritch, Esq.
WIGINGTON RUMLEY & DUNN LLP
14th Floor, South Tower
800 North Shoreline
Corpus Christi, TX 78401
Telephone: 361-885-7500
E-mail: ritch@wigrum.com
says he became friends with several lawyers while he was trying a
case in Plaquemine, La., in February, and those lawyers contacted
him about working on oil spill litigation. On May 4, Wigington
joined a Baton Rouge firm in filing Fish Commander LLC v.
Transocean Offshore Deepwater Drilling, Inc., et al., Case No.
10-cv-01339 (E.D. La.).
Mr. Ritch recently spent several days in New Orleans meeting with
the Fish Commander plaintiff, a family-owned charter fishing
service, and working on the suit.
"My clients want to go back to work," he says. "Right now, they
can't do that."
The plaintiff in Kleppinger sought assistance from:
Steve J. Gordon, Esq.
Gordon & Elias. L.L.P.
5821 Southwest Freeway, Ste. 422
Houston, TX 77057
Telephone: 713-668-9999
in finding her husband, one of the 11 individuals missing since
the rig explosion and now presumed dead. Mr. Gordon is
representing Tracy Kleppinger, wife of Karl Kleppinger Jr., in a
wrongful death suit.
Because the oil rig was a semi-submersible vessel, federal
maritime law governs Tracy Kleppinger's wrongful death claim,
Gordon says. And Gordon says he expects Transocean to file a
limitation action, which could stay the proceedings against
Transocean.
For some lawyers, how best to handle the multitude of cases
arising from the oil spill is an issue. A large group of
plaintiffs lawyers met May 5 in New Orleans to discuss legal
issues and strategy in the litigation.
Daniel F. Becnel Jr. of the Becnel Law Firm in Reserve, La., says
about 250 lawyers attended that meeting and discussed, among
other things, where a multidistrict litigation court should be
designated to handle pretrial issues in the spill cases. Mr.
Becnel says that on April 30, he filed a motion with the U.S.
Judicial Panel on Multidistrict Litigation in Washington, D.C.,
to combine oil spill cases in a MDL court.
Mr. Coon, who attended the May 5 meeting, says one advantage of
having a MDL court is the potential savings on discovery when
cases are consolidated. But Coon says there is also the potential
when one court must make decisions in a large number of cases
that some plaintiffs "have to wait an inordinate amount of time"
to get their cases through the system.
Referring to MDL courts, Mr. Coon says, "Sometimes they work
well; sometimes they work OK; and sometimes they work terribly."
Plans are in the works for a continuing legal education seminar
aimed at civil defense attorneys interested in issues involved in
the oil spill cases. John Kouris, executive director of DRI,
says the 22,000-member organization hopes to offer a seminar on
the spill's likely liability issues within the next four months.
DRI has not yet announced a date and location for the seminar,
Mr. Kouris says.
CALIFORNIA: Cities Sued Over Medical Marijuana Ordinances
---------------------------------------------------------
Amanda Bronstad at The National Law Journal reports that medical
marijuana dispensaries have filed lawsuits against California
cities, including Los Angeles, challenging ordinances that
effectively threaten the existence of their businesses.
Besides the dispensaries, the plaintiffs include medical
marijuana users and organizations that promote the use of medical
marijuana.
Vincent Howard, founding partner of Howard | Nassiri, based in
Anaheim, Calif., who represents at least 10 dispensaries in Los
Angeles, expects more suits to be filed.
"As long as cities want to turn a blind eye and pretend like this
isn't coming, there's going to be a lot of lawsuits and a
proliferation of dispensaries," he said.
"We continue to see in California dispensaries trying all sorts
of creative ways to try to establish their legality under cities'
municipal codes," said Jeffrey Dunn, a partner in the Irvine,
Calif., office of Best Best & Krieger. He is defending Lake
Forest, Calif., in several suits. "To date, none of them has been
successful."
On March 18, the nation's largest medical marijuana organization,
Americans for Safe Access, sued the city of Los Angeles over an
ordinance that requires that dispensaries be located at least
1,000 feet from schools, parks, libraries, churches and other
"sensitive uses."
Earlier this month, city prosecutors sent letters to 439 medical
marijuana dispensaries, demanding they be shut down by June 7.
Violators face six months in jail and a $1,000 fine, which
increases to $2,500 per day after the deadline.
Americans for Safe Access sued on behalf of two dispensaries,
Venice Beach Care Center and PureLife Alternative Wellness
Center. In its complaint, the organization said that the
ordinance is too restrictive. It would be too burdensome for many
dispensaries to relocate, "effectively forcing plaintiffs, as
well as the vast majority of medical marijuana collectives in the
City, to close their doors," the complaint said. "This violates
due process, since plaintiffs have a vested right to operate
their collectives, which cannot be deprived in such an
unreasonable manner."
Joe Elford, chief counsel for Americans for Safe Access, which is
based in Oakland, Calif., did not return a call for comment.
Frank Mateljan, a spokesman for Los Angeles City Attorney Carmen
Trutanich, said: "We're ready to defend the city's ordinance
against any challenges, and we're confident that the ordinance
will stand up in court."
Two other cities that have been sued in recent months include
Lake Forest and Costa Mesa, Calif., both in Orange County. A
proposed class action was filed on April 2 in federal court in
Los Angeles against both cities on behalf of four medical
marijuana users. The plaintiffs alleged that the towns have
discriminated against them under the Americans with Disabilities
Act by denying them fair access to public services.
"Each plaintiff is dependent on the use of medical marijuana to
assist with their being able to participate in major life
activities and receive services or participate in programs
provided by public entities such as: use of public
transportation, public roadways, libraries, parks and other
public services," the complaint alleged.
U.S. District Judge Andrew Guilford in Santa Ana, Calif., on
April 30 denied the plaintiffs' motion for a preliminary
injunction. "Because marijuana cannot be prescribed under the
ADA, the Court finds no likelihood of success on the merits," he
wrote.
A lawyer for the plaintiffs, Matthew Pappas of the Law Offices of
Matthew Pappas in Mission Viejo, Calif., said that he was
exploring his interlocutory appeal options.
"Our position is that the federal government has acted to allow
an exception" under the ADA, he said. He noted that city leaders
in Washington recently approved the use of medical marijuana.
A lawyer for Costa Mesa, James Touchstone of Jones & Mayer in
Fullerton, Calif., did not return a call for comment.
Dunn noted that the Lake Forest ordinance does not ban
dispensaries; it merely disallows them in commercial zones.
"Whether they're in compliance with state law, they're not in
compliance with our zoning," he said.
Lake Forest has sued 21 dispensaries since September, he said.
One dispensary, the Lake Forest Wellness Center and Collective,
countersued on April 13, alleging that the city's actions violate
state law.
"I know the subject of marijuana has been a taboo subject for a
long time, but it's a legal business," said Howard, who
represents the Lake Forest Wellness Center and Collective.
"People should be allowed to move forward and open these
businesses. It's not up to the cities to change California law."
Another suit, filed on April 16, alleged that Costa Mesa
"severely restricts access to medical marijuana effectively
forcing plaintiffs, as well as the vast majority of medical
marijuana collectives in the City, to close their doors."
The suit was filed by the Orange County Directors Association and
two dispensaries, Herban Elements Inc. and Medmar Patient Care
Collective. An attorney for the plaintiffs, Christopher Glew of
Glew & Kim in Santa Ana, did not return a call for comment.
CHASE BANK: 3rd Cir. Says Judges Must Decide Class Action Waivers
-----------------------------------------------------------------
Shannon P. Duffy at The Legal Intelligencer reports that judges,
and not arbitrators, should decide questions relating to the
enforceability of a class action waiver in an arbitration clause
because such questions present issues of "arbitrability" that are
properly decided by courts, an en banc panel of the U.S. Court of
Appeals for the Third Circuit has ruled.
"An unconscionability challenge to the provisions of an
arbitration agreement is a question of arbitrability that is
presumptively for the court, not the arbitrator, to decide," U.S.
Circuit Judge Julio M. Fuentes wrote for a six-judge majority in
Puleo v. Chase Bank USA.
In dissent, U.S. Circuit Judge Marjorie O. Rendell disagreed,
saying "a challenge to a class action waiver in the arbitration
agreement does not implicate the arbitrator's jurisdiction," and
therefore should not be considered a question of arbitrability.
The 6-4 decision upholds a ruling by U.S. District Judge Lawrence
F. Stengel that rejected the consumer-plaintiff's argument that
the arbitrator should be allowed to decide whether the class
action waiver was unconscionable.
Stengel went on to rule that the waiver was not unconscionable
and ordered Francis and Trish Puleo to proceed to arbitration on
their individual claims only.
In the appeal, the Puleos challenged only the first half of
Stengel's ruling, arguing that Stengel should have sent the case
directly to the arbitrator, allowing the arbitrator to tackle the
question of unconscionability.
Court records show that the case was argued before a three-judge
panel -- Rendell, Fuentes and Senior Judge Jane R. Roth -- in
July 2009.
But the panel never issued a decision. Instead, in December 2009,
the court announced that it had voted to rehear the case en banc.
Roth, a senior judge, was eligible to join the en banc court but
did not attend the oral argument and cast no vote in the en banc
decision.
In the suit, the Puleos challenged the retroactive interest-rate
increases on the account balances of their Chase Bank credit
cards.
Francis Puleo claimed that in March 2006, Chase retroactively
increased his interest rate from 4.99 percent to 29.99 percent,
causing him to incur $267 in increased finance charges. Trish
Puleo likewise claimed that in November 2005, Chase retroactively
increased her interest rate from 14.74 percent to 25.99 percent,
causing her to incur $162 in increased finance charges.
Lawyers for Chase argued that such increases -- and the
retroactive application of those increases to the Puleos'
existing balances -- were permitted by the cardmember agreements,
as well as by then-existing state and federal law.
But ever since the suit was filed, the entire focus of the
litigation in federal court has been on whether the Puleos had
the right to pursue their claims as a class action, or whether
they had signed away that right, and the companion question of
whether a judge or an arbitrator should decide whether the class
action waiver was valid.
Stengel issued an order that compelled arbitration but held that
the validity of the class action waiver was a "gateway dispute"
and one that he considered a "question of arbitrability" for the
court to decide. The waiver was valid, Stengel found, leaving the
Puleos with only individual claims to pursue at arbitration.
On appeal, the Puleos' lawyers -- Michael J. Quirk and Mark R.
Cuker of Williams Cuker & Berezofsky -- argued that Stengel erred
by failing to recognize that their decision to agree to arbitrate
meant that the issue of the class action waiver could not be
considered a question of arbitrability.
Fuentes was unimpressed, saying he found the plaintiffs' argument
"self-contradictory."
"In order to present their class claims to an arbitrator, the
Puleos needed to obtain a court order that invalidated the
arbitration agreement's class action waiver and that compelled
class arbitration," Fuentes wrote.
"This is because unless it addressed the validity of the ban on
class arbitration, the district court could not have ordered the
parties to submit their dispute to class arbitration without
running afoul of the [Federal Arbitration Act's] directive that
arbitration agreements be enforced in accordance with their
terms," Fuentes wrote.
"We decline to indulge the Puleos' desire to have it both ways --
i.e., to have the district court compel the parties to arbitrate
class claims without first addressing the validity of the class
action waiver," Fuentes wrote.
Fuentes was joined by Chief Judge Theodore A. McKee and Judges
Dolores K. Sloviter, Anthony J. Scirica, D. Brooks Smith and Kent
A. Jordan.
In dissent, Rendell said the plaintiffs had a valid point that
the majority was ignoring.
"Since it is clear that the parties agree that the case will go
to arbitration -- whether as a class action or as plaintiffs'
individual suit -- there is no issue of 'arbitrability,' and
there is no issue as to the arbitrator's jurisdiction," Rendell
wrote.
"No one -- neither the court nor the arbitrator -- needs to
decide the 'jurisdiction' of the arbitrator. The arbitrator has
jurisdiction over the case; the case will be arbitrated -- no
ifs, ands, or buts," Rendell wrote.
Rendell said her disagreement with Fuentes stemmed from "the
unique features" of the case, including the fact that the
arbitrability of the dispute was not at issue because the
plaintiffs agreed the case should go to arbitration.
"No case cited by the majority supports the proposition that an
unconscionability challenge to a single provision of an
arbitration agreement necessarily raises a question of
arbitrability, particularly where, as here, the party raising the
unconscionability challenge concedes the validity of the rest of
the arbitration agreement and has agreed to go to arbitration,"
Rendell wrote in a dissent that was joined by Judges Thomas L.
Ambro, D. Michael Fisher and Michael A. Chagares.
Chase Bank was represented in the appeal by Nancy R. Thomas and
Robert S. Stern of Morrison & Foerster in Los Angeles.
Thomas declined to be interviewed about the ruling.
Quirk said no decision has yet been made as to whether the
plaintiff will pursue any further appeals including a possible
petition to the U.S. Supreme Court.
CHICAGO: Proposes $16.5 Mil. Settlement in Police Custody Lawsuit
-----------------------------------------------------------------
Hal Dardick at the Chicago Tribune reports that the Chicago City
Council Finance Committee recommended the city pay up to $16.5
million to settle a class-action lawsuit accusing Chicago police
of civil rights violations, and more than half a million people
could be eligible to apply for an award.
The case was filed in 2004 on behalf of people who claimed they
were held too long or otherwise improperly treated by Chicago
police during a span of more than a decade.
If approved by the full council, up to 512,000 people would be
eligible under the federal settlement to seek payments of between
$90 and $3,000.
The first $15 million in costs would be covered by the city, and
the rest by an insurer, said Corp. Counsel Mara Georges, the
city's top lawyer.
Ms. Georges said the city and courts have taken steps to make
sure none of the alleged constitutional violations occur again.
"Each of the problems that were identified have been dealt with,"
she said.
She also noted the plaintiffs' demand before settlement had
swelled to more than $100 million.
"In a case where you have a demand of over $100 million, to
settle it for $16.5 million is a good result," she said.
The class includes up to 12,000 people arrested between March 15,
1999 and Feb. 10, 2008 for alleged felonies who were not given a
probable cause hearing within 48 hours. Awards in those cases
would be limited to $3,000.
The class also includes people held between Oct. 21, 2001 and
March 10, 2010 in interview rooms for more than 16 hours without
a mattress or pad to sleep on, regular meals or sufficient
bathroom access. Those plaintiffs would be eligible for rewards
that top out at $2,000.
Also include are those held overnight in lockups between Oct. 21,
2001 and March 10, 2010 without a proper overnight bedding. Their
payments would be limited to $90.
Authorities have since moved to address the problems that
resulted in the lawsuit.
The Cook County Circuit Court has established a "duty judge"
system to ensure all people arrested on felonies get probable
cause hearings in 48 hours, Georges said.
Padded mats have been purchased for people held overnight in
lockups or interview rooms, and rules have been implemented to
make sure those being held are fed and given proper bathroom
breaks.
CLAIRE'S BOUTIQUES: Recalls 19,000 Charm Bracelet Sets
------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Claire's Boutiques Inc., of Hoffman Estates, Ill., announced a
voluntary recall of about 19,000 "Best Friends" Charm Bracelet
Sets. Consumers should stop using recalled products immediately
unless otherwise instructed.
The heart lock charms attached to the bracelets contain high
levels of cadmium. Cadmium is toxic if ingested by children and
can cause adverse health effects.
No injuries or incidents have been reported.
This recall involves the "Best Friends" three bracelet sets are
silver-colored chains with metal pendants containing one of the
words "Best," "Friends" or "Forever" and heart lock and key
charms with different colored stones. Pictures of the recalled
products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml10/10227.html
The recalled products were manufactured China and sold though
Claire's stores nationwide from February 2009 through January
2010 for about $12.
Consumers should immediately take the recalled bracelets away
from children and return the heart lock charms or the entire
bracelets to any Claire's for a full refund or replacement
product. For additional information, contact Claire's toll-free
at (866) 859-9281 between 9:00 a.m. and 5:00 p.m., Eastern Time,
Monday through Friday or visit the firm's website at
http://www.claires.com/
COUNTY OF SACRAMENTO: Sued Over Plan to Halt Medi-Cal Treatment
---------------------------------------------------------------
Maria Dinzeo at Courthouse News Service reports that in a
boneheaded response to the state budget crisis, Sacramento County
will cut off services to more than 5,000 outpatients suffering
from mental illnesses -- including schizophrenia and bipolar
disorder -- a class action claims in Federal Court. The county
plans to terminate Medi-Cal treatment for two outpatient programs
on July 1.
The county has cut millions of dollars from its mental health
budget since 2009. The two targeted programs assist 5,000 mental
health patients in Sacramento County who suffer from severe
mental illnesses, according to the complaint.
On the chopping block are the county's four "regional support
teams" (RSTs), and an outpatient recovery program that "provides
crises intervention, care management, rehabilitative services and
medication management." The cuts will affect patients such as
lead plaintiff Leslie Napper, who depends on an RST visit for her
medication.
Without regular visits from RST staff, the class says, they "are
likely to stop taking their medications and attending their
counseling sessions and, as a consequence, will become
delusional, suicidal or otherwise present a danger to themselves
and others."
When this happens, the class says, they will be unable to take
care of themselves and will be at serious risk of becoming
homeless or winding up permanently hospitalized.
"It costs far more to institutionalize individuals with mental
illness than it does to provide outpatient mental health services
that allow them to live in community-based settings," the class
says, and once institutionalized, it is extremely difficult for
mentally ill patients to get well enough to leave.
A public meeting on April 1 revealed the county's plan to open
new clinics to absorb the roughly 4,300 patients who receive
outpatient treatment. But the county has released few details
about the locations, hours, staffing and range of services of
these new clinics. The class claims the county did not even
intend to notify the patients that their programs are to be
terminated.
The class seeks an injunction, claiming termination of the
programs would violate the Americans with Disabilities Act and
the Medicaid Act.
A copy of the Complaint in Napper, et al. v. County of
Sacramento, et al., Case No. 10-cv-01119 (E.D. Calif.) (Mendez,
J.), is available at:
http://www.courthousenews.com/2010/05/10/SactoMediCal.pdf
The Plaintiffs are represented by:
William S. Freeman, Esq.
Margaret I. Branick-Abilla, Esq.
Amy E. Nash, Esq.
COOLEY LLP
3175 Hanover St.
Palo Alto, CA 94304-1130
Telephone: 650-843-5000
- and -
Stuart Seaborn, Esq.
Suzanna Gee, Esq.
Jay Koslofsky, Esq.
Sean Rashkis, Esq.
Will Schell, Esq.
DISABILITY RIGHTS CALIFORNIA
100 Howe Avenue, Suite 235N
Sacramento, CA 95825
Telephone: 916-488-9950
- and -
Robert D. Newman, Esq.
Kimberly Lewis, Esq.
Antionette D. Dozier, Esq.
WESTERN CENTER ON LAW AND POVERTY
3701 West Sixth St., Suite 208
Los Angeles, CA 90010
Telephone: 213-487-7211
- and -
Melinda Bird, Esq.
DISABILITY RIGHTS CALIFORNIA
3580 Wilshire Blvd., Suite 902
Los Angeles, CA 90010
Telephone: 213-427-8747
- and -
Kimberly Swain, Esq.
DISABILITY RIGHTS CALIFORNIA
1330 Broadway, Suite 500
Oakland, CA 94612
Telephone: 510-267-1200
DOLE FOODS: Nicaraguans Could Lose $2.3 Million Court Award
-----------------------------------------------------------
Linda Deutsch at The Associated Press reports that lawyers for
six Nicaraguan banana workers who Dole Food Co. attorneys have
accused of fraud will get a chance to explain their position when
a hearing resumes before a California judge.
Los Angeles Superior Court Judge Victoria Chaney is considering
reversing a $2.3 million award to the men after a 2007 jury
verdict. The men claimed in the lawsuit that exposure to
pesticides made them sterile.
Attorneys for Dole on Monday presented arguments and videotapes
suggesting that the men were part of a "fraud army" coached in
their testimony by an American and Nicaraguan lawyer with a plan
to extort billions from Dole in multiple lawsuits.
The case is closely related to one that Chaney dismissed last
year on grounds of fraud.
E*TRADE FINANCIAL: S.D.N.Y. Rejects Motion to Dismiss Fraud Suit
----------------------------------------------------------------
Grant McCool at Reuters reports that investors may proceed with a
class action lawsuit against online broker E*Trade Financial Corp
over allegations of securities fraud in the collapsed subprime
mortgage market, a judge ruled on Tuesday.
E*Trade, which was sued in 2007 in U.S. District Court in
Manhattan, had sought dismissal of the complaint on the grounds
that losses incurred were caused by a "worldwide economic
catastrophe" and that the corporation did not break the law.
The complaint said that E*Trade Chief Executive Officer Mitchell
Caplan, Chief Financial Officer Robert Simmons and President
Dennis Webb misrepresented the company's financial condition.
Class action suitors also said the defendants "knowingly and/or
recklessly purchased high-risk loan pools and asset-backed
securities with inadequate due diligence" while assuring
investors they were safe.
"Plaintiffs have sufficiently pled that defendants had present
knowledge of the risk, and have not merely pled fraud-by-
hindsight," Judge Robert Sweet said in a written ruling. "Because
plaintiffs allege that defendants intentionally misled the
public, rather than simply making bad business decisions,
plaintiffs have pled more than mere mismanagement."
A spokeswoman for E*Trade could not immediately be reached for
comment.
According to court documents, E*Trade admitted that its exposure
to risky asset-backed securities, pools of mortgages known as
collateralized debt obligations and second-lien securities was
about $450 million.
The judge's ruling also said the investors had shown in their
lawsuit that E*Trade's share price fell significantly -- 58.67
percent in one day -- after the company's risky investments and
losses were revealed.
The case is Freudenberg v. E*Trade Financial Corporation, et al,
Case No. 07-cv-08538 (S.D.N.Y.) (Sweet, J.).
EXPRESS SCRIPTS: Class Certification in Two Suits Still Pending
---------------------------------------------------------------
The motion for class certification in two suits against Express
Scripts, Inc., remains pending, according to the company's
April 28, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended March 31, 2010.
The Judicial Panel on Multi-District Litigation on April 29,
2005, transferred a number of previously disclosed cases to the
Eastern District of Missouri for coordinated or consolidated
pretrial proceedings.
The plaintiffs assert that certain of the company's business
practices, including those relating to its contracts with
pharmaceutical manufacturers for retrospective discounts on
pharmaceuticals and those related to the company's retail
pharmacy network contracts, constitute violations of various
legal obligations including fiduciary duties under the Federal
Employee Retirement Income Security Act, common law fiduciary
duties, state common law, state consumer protection statutes,
breach of contract, and deceptive trade practices.
The putative classes consist of both ERISA and non-ERISA health
benefit plans as well as beneficiaries.
The various complaints seek money damages and injunctive relief.
On Feb. 16, 2010, in accordance with the Schedule under the case
management order, Plaintiffs in the matter Correction Officers'
Benevolent Association of the City of New York, et al. v. Express
Scripts, Inc.; and Lynch v. National Prescription Administrators,
et al., filed a motion for summary judgment alleging that
National Prescription Administrators (NPA) was a fiduciary to the
Plaintiffs and breached its fiduciary duty.
Plaintiffs also filed a class certification motion on behalf of
self-funded non-ERISA plans residing in New York, New Jersey, and
Pennsylvania for which NPA was PBM and which used the NPASelect
Formulary from Jan. 1, 1996 through April 13, 2002.
Express Scripts, Inc. -- http://www.express-scripts.com/-- one
of the largest pharmacy benefit management companies in North
America, is leading the way toward creating better health and
value for patients through ConsumerologySM, the advanced
application of the behavioral sciences to healthcare. This
approach is helping millions of members realize greater
healthcare outcomes and lowering cost by assisting in influencing
their behavior. Headquartered in St. Louis, Express Scripts
provides integrated PBM services including network-pharmacy
claims processing, home delivery services, specialty benefit
management, benefit-design consultation, drug-utilization review,
formulary management, and medical and drug data analysis
services. The company also distributes a full range of
biopharmaceutical products and provides extensive cost-management
and patient-care services.
EXPRESS SCRIPTS: Class Certification in "Beeman" Suit Pending
-------------------------------------------------------------
The class certification motion in the matter Jerry Beeman, et al.
v. Caremark, et al., Case No.021327, remains pending in the U.S.
Court for the Central District of California.
On Dec. 12, 2002, a complaint was filed against ESI and NextRX
LLC f/k/a Anthem Prescription Management LLC and several other
pharmacy benefit management companies. The complaint, filed by
several California pharmacies as a putative class action, alleges
rights to sue as a private attorney general under California law.
The complaint alleges that the company, and the other defendants,
failed to comply with statutory obligations under California
Civil Code Section 2527 to provide our California clients with
the results of a bi-annual survey of retail drug prices.
On July 12, 2004, the case was dismissed with prejudice on the
grounds that the plaintiffs lacked standing to bring the action.
On June 2, 2006, the U.S. Court of Appeals for the Ninth Circuit
reversed the district court's opinion on standing and remanded
the case to the district court.
The district court's denial of defendants' motion to dismiss on
constitutionality grounds is currently on appeal to the Ninth
Circuit. Plaintiffs have filed a motion for class certification,
but that motion has not been briefed pending the outcome of the
appeal.
No further updates were reported in the company's April 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2010.
Express Scripts, Inc. -- http://www.express-scripts.com/-- one
of the largest pharmacy benefit management companies in North
America, is leading the way toward creating better health and
value for patients through ConsumerologySM, the advanced
application of the behavioral sciences to healthcare. This
approach is helping millions of members realize greater
healthcare outcomes and lowering cost by assisting in influencing
their behavior. Headquartered in St. Louis, Express Scripts
provides integrated PBM services including network-pharmacy
claims processing, home delivery services, specialty benefit
management, benefit-design consultation, drug-utilization review,
formulary management, and medical and drug data analysis
services. The company also distributes a full range of
biopharmaceutical products and provides extensive cost-management
and patient-care services.
EXPRESS SCRIPTS: Motion to Decertify Class in Ala. Suit Pending
---------------------------------------------------------------
Express Scripts, Inc.'s motion to decertify a class in suit
styled North Jackson Pharmacy, Inc., et al. v. Express Scripts,
Civil Action No. CV-03-B-2696-NE, remains pending in the U.S.
District Court for the Northern District of Alabama.
The suit was filed on Oct. 1, 2003.
The case purports to be a class action against the company on
behalf of independent pharmacies within the United States.
The complaint alleges that certain of the company's business
practices violate the Sherman Antitrust Act, 15 U.S.C Section 1,
et. seq.
The suit seeks unspecified monetary damages (including treble
damages) and injunctive relief.
Plaintiffs' motion for class certification was granted on March
3, 2006.
A motion filed by the plaintiffs in an antitrust matter against
Medco and Merck in the Eastern District of Pennsylvania before
the Judicial Panel on Multi-District Litigation requesting
transfer of this case and others to the Eastern District of
Pennsylvania for MDL treatment was granted on Aug. 24, 2006.
The company filed a motion to decertify the class on Jan. 16,
2007, and it has been fully briefed and argued. The company is
awaiting the Court's decision on such motion.
No further updates were reported in the company's April 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2010.
Express Scripts, Inc. -- http://www.express-scripts.com/-- one
of the largest pharmacy benefit management companies in North
America, is leading the way toward creating better health and
value for patients through ConsumerologySM, the advanced
application of the behavioral sciences to healthcare. This
approach is helping millions of members realize greater
healthcare outcomes and lowering cost by assisting in influencing
their behavior. Headquartered in St. Louis, Express Scripts
provides integrated PBM services including network-pharmacy
claims processing, home delivery services, specialty benefit
management, benefit-design consultation, drug-utilization review,
formulary management, and medical and drug data analysis
services. The company also distributes a full range of
biopharmaceutical products and provides extensive cost-management
and patient-care services.
EXPRESS SCRIPTS: "Pearson's" Plaintiffs Appeal Dismissal Ruling
---------------------------------------------------------------
The plaintiffs in the matter Pearson's Pharmacy, Inc. and Cam
Enterprises, Inc. d/b/a Altadena Pharmacy v. Express Scripts,
Inc., Case No. 3:06-CV-00073-WKW, are appealing the ruling of the
U.S. District Court for the Middle District of Alabama,
dismissing the suit, according to the company's April 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2010.
The suit was originally filed on Jan. 26, 2006.
On Feb. 15, 2006, an amended complaint alleging a class action on
behalf of all pharmacies reimbursed based upon average wholesale
price (AWP) was filed. The complaint alleges that the company
failed to properly reimburse pharmacies for filling
prescriptions.
Plaintiffs seek unspecified monetary damages and injunctive
relief.
On March 31, 2006, the company filed a motion to dismiss the
complaint.
On June 7, 2007, the court dismissed the claims for fraudulent
misrepresentation, fraudulent suppression and unjust enrichment,
leaving only a breach of contract claim.
On June 19, 2009, Express Scripts filed a motion for summary
judgment on the remaining claims.
On Oct. 29, 2009, the court granted summary judgment in Express
Scripts' favor, disposing of all claims.
Plaintiffs filed a notice of appeal on Nov. 17, 2009.
Express Scripts, Inc. -- http://www.express-scripts.com/-- one
of the largest pharmacy benefit management companies in North
America, is leading the way toward creating better health and
value for patients through ConsumerologySM, the advanced
application of the behavioral sciences to healthcare. This
approach is helping millions of members realize greater
healthcare outcomes and lowering cost by assisting in influencing
their behavior. Headquartered in St. Louis, Express Scripts
provides integrated PBM services including network-pharmacy
claims processing, home delivery services, specialty benefit
management, benefit-design consultation, drug-utilization review,
formulary management, and medical and drug data analysis
services. The company also distributes a full range of
biopharmaceutical products and provides extensive cost-management
and patient-care services.
EXPRESS SCRIPTS: "Amburgy" Suit in Missouri Closed, Company Says
----------------------------------------------------------------
The matter Amburgy v. Express Scripts, Inc., Case No. 4:09-CV-
705, is now closed after the plaintiffs time to appeal lapsed,
according to the company's April 28, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
March 31, 2010.
On May 8, 2009, Amburgy filed a class action lawsuit in the U.S.
District Court for the Eastern District of Missouri over ESI's
reported data incident in October 2008 alleging that ESI failed
to take adequate security measures to protect against theft of
the information.
Plaintiff's claims include negligence, breach of contract, and
violations of state data breach notification laws.
Plaintiff sought to certify a nationwide class of all persons
whose information was compromised and sought unspecified monetary
damages and injunctive relief.
ESI's motion to dismiss was granted on Nov. 23, 2009, plaintiff's
time to appeal has lapsed, and the company considers this case
closed.
Express Scripts, Inc. -- http://www.express-scripts.com/-- one
of the largest pharmacy benefit management companies in North
America, is leading the way toward creating better health and
value for patients through ConsumerologySM, the advanced
application of the behavioral sciences to healthcare. This
approach is helping millions of members realize greater
healthcare outcomes and lowering cost by assisting in influencing
their behavior. Headquartered in St. Louis, Express Scripts
provides integrated PBM services including network-pharmacy
claims processing, home delivery services, specialty benefit
management, benefit-design consultation, drug-utilization review,
formulary management, and medical and drug data analysis
services. The company also distributes a full range of
biopharmaceutical products and provides extensive cost-management
and patient-care services.
FATIMA INT'L: Sued in Michigan Over Alleged Ponzi Scheme
--------------------------------------------------------
Jonathan Perlow at Courthouse News Service reports that in a
federal class action, 114 Iraqi-Americans say they were duped in
a $1 billion Ponzi scheme run by two men posing as "altruistic,
religious and civil-minded do-gooders." The class claims "the
geographic scope of the Ponzi scheme spans the globe, perhaps
leading even to the highest levels of the emerging Iraqi state."
The 114 John Doe plaintiffs claim Abdzahra Shalushi and Ahmed
Alabadi were the masterminds of two interrelated Ponzi schemes
that "preyed upon the Iraqi-American community in Southeast
Michigan, and throughout the United States and other countries,
by recruiting individuals to act as agents for their affinity
fraud."
They claim the defendants exploited their "contacts with Arabic
mosques, churches, community organizations, family and friends."
Named as defendants are 20 people and three corporations.
Messrs. Shalushi and Alabadi ran distinct but interconnected
Ponzi schemes, promising quick repayments and guaranteed large
returns from projects in Iraq and other Middle-Eastern countries,
according to the complaint.
But the class says it was a classic Ponzi scheme, using new money
to pay off earlier investors and creditors.
Mr. Shalushi ran his scheme from 2006 to 2008, and Mr. Alabadi
from 1998 to 2008, according to the 36-page complaint.
Also named in the action were Messrs. Shalushi and Alabadi's
alleged shell companies, Fatima International, Adam Trade Group
and Fedek Group, and as 16 purported "agents."
The plaintiffs say the defendants "exploited cultural taboos
forbidding dishonesty and financial self-dealing when dealing
with tribal brothers and sisters, as well as the Arab custom of
doing business with cash and a handshake, to dupe thousands of
Iraqi-Americans into investing in Iraqi and Middle-Eastern
projects. . . .
"The investments of individual Iraqi-American families in these
Ponzi schemes range from a couple of thousand dollars to several
million dollars," the complaint states. "Investors run the gamut
from high school students to housewives to blue-collar tradesman
to multimillionaire businessmen."
The defendants promised annual interest payments of 80 percent to
100 percent and promised to repay principle in 8 to 12 months,
the plaintiffs say.
But after investing, the plaintiffs say, "many families have
lost their homes, businesses, cars, and personal possessions,
their opportunity for an education, their peace of mind, their
hopes for a secure and happy life in America, and even their
marriages. . . .
"It has shattered the social and economic fabric of the Iraqi-
American community, especially in Dearborn, Mich. -- the center
of the Arab Diaspora in the United States," the complaint states.
The plaintiffs say they filed as John Does for their own
protection.
A copy of the Complaint in Does 1-114 v. Shalushi, et al., Case
No. 10-cv-11837 (E.D. Mich.) (Lawson, J.), is available at:
http://www.courthousenews.com/2010/05/10/IraqPonzi.pdf
The Plaintiffs are represented by:
Dave Honigman, Esq.
Gerard Mantese, Esq.
David Hansma, Esq.
MANTESE HONIGMAN ROSSMAN AND WILLIAMSON, P.C.
1361 E. Big Beaver Rd.
Troy, MI 48083
Telephone: 248-457-9200
E-mail: dhonigman@gmail.com
gmantese@manteselaw.com
dhansma@manteselaw.com
HEARTLAND PAYMENT: Interim OK for $4 Mil. Data Breach Settlement
----------------------------------------------------------------
Jaikumar Vijayan at Computerworld reports that a federal court in
Texas has given preliminary approval to a $4 million settlement
of a consumer class-action lawsuit against Heartland Payment
Systems Inc. over the massive data breach the payment processor
disclosed in January 2009.
Under the proposed settlement, Heartland will pay up to $175 to
individuals for out-of-pocket expenses stemming from telephone
usage or postage costs tied to card cancellations and
replacement, or for any unreimbursed charges resulting from
unauthorized use of their cards.
Victims of identity theft resulting from the Heartland data
breach will be eligible for compensation of up to $10,000. As
part of the agreement, Heartland will set aside $2.4 million to
fund consumer claims arising from the breach. Any funds that
remain unclaimed will be given to a nonprofit consumer privacy
organization.
All costs associated with notifying consumers of the settlement
will be borne by Heartland. Attorneys representing class members
will receive a total of $725,000. The named consumer plaintiffs
in the case, meanwhile, will receive between $100 and $200.
The settlement was approved by the U.S. District Court for the
Southern District of Texas late last month. The court's approval
allows Heartland to notify consumers of the proposed settlement.
A final hearing on the reasonableness and adequacy of the
settlement is scheduled for December.
News of the approval was first reported by Bankinfosecurity.com
last week.
Princeton, N.J.-based Heartland, one of the largest processors of
payment card transactions in the country, last January disclosed
that hackers had broken into its systems and stolen credit and
debit card data. Authorities later disclosed that data on as many
as 130 million credit and debit cards had been stolen in the
breach making it the largest of its kind. Heartland's main data
center, which is also the one that was breached, is located in
Texas.
A gang of cyberthieves, led by Miami-based Albert Gonzalez, was
later identified as being responsible for the break-in at
Heartland and other merchants, including TJX and BJs Wholesale
Club. Gonzalez was sentenced in March to 20 years in federal
prison. Other members of his gang received varying terms. Some
are still waiting to be sentenced.
The breach spawned a flurry of lawsuits against Heartland by
banks and consumers seeking compensation for breach-related
costs. The cases were consolidated and split into two streams,
one focused on consumer claims and the other on claims by
financial institutions.
In January, Heartland agreed to set aside $60 million to
reimburse banks issuing Visa cards, for breach related costs.
That settlement however was quickly criticized by lawyers for
some banks who claimed the amount was not nearly enough to cover
the expenses suffered by banks as a result of the breach. Some
argued that the proposed offer was even less than Visa's own
internal estimates which pegs financial damages to banks as a
result of the breach at $140 million.
Heartland also has agreed to pay $3.6 million to settled claims
brought against it by American Express.
The proposed $4 million to settle consumer claims, on the other
hand, appears to have garnered broad support from the plaintiffs
in the case. In a memorandum asking the court to approve it,
lawyers for the plaintiffs called the proposed settlement an
"excellent" one for consumers. Typically, courts have tended to
dismiss consumer class-action lawsuits in data breach cases
involving payment card data. By that measure, Heartland's
settlement offer is unusual even though it might appear small
considering the number of cards that were compromised.
GENTIVA HEALTH: Sued in E.D.N.Y. for Labor Law Violations
---------------------------------------------------------
Cohen Milstein Sellers & Toll PLLC filed a nationwide class
action lawsuit this week against one the country's largest home
health care service providers. Rindfleisch, et al. v. Gentiva
Health Services, Inc., Case No. 10-cv-02011 (E.D.N.Y.), asserts
that Gentiva Health Services, Inc., violates the Fair Labor
Standards Act.
The lawsuit, asserts that Gentiva, which employs some 30,000
health care workers, treats visiting nurses and other health care
providers as exempt from the overtime requirements of the FLSA
and refuses to pay these employees for all hours worked. Gentiva
pays nurses and other health care providers on a "per visit"
basis for some work, an hourly rate for other work, and fails to
pay anything at all for other hours worked. Plaintiffs allege
this hybrid compensation scheme does not meet the requirements of
state or federal wage and hour law.
Attorneys at Martin & Jones, PLLC and Cohen Milstein Sellers &
Toll PLLC have petitioned the court to conditionally certify the
lawsuit as a nationwide FLSA collective action and provide all
similarly situated employees notice for an opportunity to join
the lawsuit so that all current and former Gentiva registered
nurses, therapists, and other health care providers who are not
paid for all hours worked may be eligible to participate in this
legal action.
"Gentiva's hybrid compensation scheme encourages employees to
take on more patient visits and work longer hours, while Gentiva
reaps the benefits by reducing labor costs and boosting profit
margins," said Jill Hernandez, who worked for more than ten years
as a Wage and Hour Investigator with the U. S. Department of
Labor prior to joining Martin & Jones. Jill utilizes her
experience to represent employees for violations under both
federal and state wage and hour law.
Christine Webber, a partner at Cohen Milstein who has represented
thousands of workers in wage and hour cases, noted, "The work
these nurses do is so important -- they are caring for parents
and grandparents, enabling them to stay in their own homes; they
are dedicated to their patients. We are equally dedicated to
ensuring that these health care providers are paid for all the
hours they work."
Martin & Jones, PLLC has offices in North Carolina, where the
first two class representatives live, as well as in Georgia, and
Cohen Milstein Sellers & Toll PLLC has offices in Washington, DC
and New York.
GPT GROUP: Update About Threatened Investors' Lawsuit
-----------------------------------------------------
GPT Group Ltd., based in Sydney, Australia, provided an update
this week about a threatened securities-related lawsuit:
"As previously advised in 2008, Slater and Gordon Lawyers
announced an intention to bring a representative class action
against the GPT Group on behalf of certain investors who acquired
GPT Securities in the period between 28 February 2008 and 7 July
2008.
"While no proceedings have been commenced, GPT has now been
invited to enter into discussions, on a without prejudice basis,
with Slater and Gordon in relation to these matters, failing
which Slater and Gordon advise they have been instructed to
commence proceedings. As previously notified, if any such
proceeding is commenced GPT will vigorously defend it."
IRELAND: Government Faces Class Action Over Garda Retirement
------------------------------------------------------------
Jim Cusack at Independent.ie reports that the Irish Government
could be facing a class action by up to a dozen former senior
officers arising from the introduction of the compulsory
retirement age of 60 for officers of assistant commissioner
upwards in 1996, it has emerged.
Top gardai, including Tony Hickey, who led the investigation into
the murder of Veronica Guerin, and Jim McHugh, who was assistant
commissioner in charge of Dublin, had their careers cut short by
what officers say was the arbitrary reduction of the retirement
age from 65 to 60.
It has been learned that after the retirement age was reduced,
the Garda Commissioner and the Department of Justice were twice
informed by letter by the Chief Superintendents' Association that
it was not in compliance with EU directives. The warnings were
ignored and the compulsory retirement age was retained.
The State and the Commissioner were challenged on the same issue
in the High Court in June 2008 by former assistant commissioner
Martin Donnellan, but the State won.
The Chiefs' Association, however, brought the case to the EU
Commission, which informed the Department of Justice two weeks
ago that the State had infringed EU directives on the issue.
This, according to garda sources, has effectively opened the way
for a challenge by about a dozen senior officers to take action
over their enforced early retirement.
What has rankled several officers is that while the Government
introduced the reduced retirement age for assistant and deputy
commissioners, extensions were subsequently granted to
Commissioner Noel Conroy, who served until he was 65.
The current Commissioner, Fachtna Murphy, 63, has been granted
two extensions and could receive a third this year, also taking
him to 65.
Several of the assistant commissioners applied for an extension
to their service but were refused, according to one source,
"without a valid reason given except the standard bland 'in the
interests of the service'".
It is understood the department claimed that it had received
advice on the issue from the Attorney General, but this was never
produced despite requests by the Chiefs' Association to see it.
The two letters pointing out to the Department of Justice the
non-compliance with the EU directive were produced in court
during Martin Donnellan's unsuccessful challenge to the
compulsory retirement at 60.
The issue was also discussed on at least three occasions at
arbitration meetings at which the Department of Justice held the
position they had no objection to senior officers serving until
65 but that the objection to this came from the commissioners of
the garda.
Minutes from these meetings could prove embarrassing for the
government side.
The official document signed by then minister for justice Nora
Owen around Christmas 1995 claimed that enforced early retirement
would act as a stimulus for aspiring younger officers was
described during Martin Donnellan's case as "gobbledygook" by one
former senior garda officer.
LOWER MERION: FBI Can View Pictures & Insurer Denies Coverage
-------------------------------------------------------------
The Associated Press reports that a judge says the FBI can view
computer evidence gathered through a lawsuit that accuses a
Pennsylvania school district of electronically spying on
students.
The Lower Merion School District admits it secretly captured
56,000 webcam photos and screen shots in a misguided attempt to
locate missing school-issued laptops.
The district concedes some webcam photographs were taken inside
student homes.
One high school student has filed an invasion-of-privacy lawsuit.
And the FBI is investigating whether the district violated
wiretap laws.
The judge agreed Monday to let federal investigators view the
images recovered as they pursue their grand jury investigation.
But the judge wants the privacy of students and their families
protected whenever possible.
Additionally, The Associated Press reports, an insurance company
says it won't pay to defend Lower Merion School District against
accusations of spying on students through laptop webcams.
Graphic Arts Mutual Insurance Company says the alleged spying
isn't covered under its personal injury policy with the Lower
Merion schools.
The New York-based insurer has filed suit against the district
and the family of student Blake Robbins.
The insurance company's stance could leave the district
responsible for litigation and settlement costs.
MORTGAGES LTD: Securities Fraud Suit Filed in D. Ariz.
------------------------------------------------------
A class action lawsuit was filed on May 11, 2010, in the United
States District Court for the District of Arizona on behalf of
proposed Classes of investors in securities issued by Mortgages
Ltd. (and the limited-liability companies it managed) and Radical
Bunny, LLC during the period between September 1, 2005, and June
3, 2008.
If you are a member of the Classes described above, you may, no
later than 60 days from the date of this notice (i.e., no later
than July 10, 2010), move the Court to serve as lead plaintiff of
one or both of the proposed Classes. To serve as lead plaintiff
you must meet certain legal requirements.
The complaint alleges generally that Mortgages Ltd. and Radical
Bunny engaged in the unlawful integrated sale of securities, and
seeks recovery from certain former officers of Mortgages Ltd.,
certain former managers of Radical Bunny, two law firms
(Greenberg Traurig, LLP and Quarles & Brady, LLP), and an
accounting firm, Mayer Hoffman McCann, P.C. (and the accounting
firm's allegedly related business entities, CBIZ, Inc. and CBIZ
MHM, LLC). These named Defendants are alleged to have assisted in
the unlawful sales or otherwise be liable to the Class members.
The complaint alleges claims for primary and secondary liability
under the Arizona Securities Act, for aiding and abetting breach
of fiduciary duties, for negligent misrepresentation, and for
primary and secondary liability under the Arizona Investment
Management Act.
The named plaintiffs who purchased securities offered through
Mortgages Ltd. (and its related entity Mortgages Ltd. Securities,
LLC) are represented by Richard G. Himelrick at the law firm
Tiffany & Bosco, PA. The named plaintiffs who purchased
securities offered through Radical Bunny, LLC are represented by
Andrew S. Friedman at the law firm Bonnett, Fairbourn, Friedman &
Balint, PC.
NEW YORK: High Court Affirms Certification of Foster Care Suit
--------------------------------------------------------------
Jeff Gorman at Courthouse News Service reports that a group of
developmentally disabled children and young adults can bring a
class action against the New York City foster care system for its
alleged "systematic failure" to place children in good homes, New
York's highest court ruled.
SEACOR HOLDINGS: Motion to Dismiss Suit Remains Pending in Del.
---------------------------------------------------------------
SEACOR Holdings Inc.'s motion to dismiss the matter Superior
Offshore International, Inc. v. Bristow Group Inc., et al., No.
09-CV-438, remains pending in the U.S. District Court for the
District of Delaware, according to the company's April 28, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended March 31, 2010.
On June 12, 2009, a purported civil class action was filed
against SEACOR, Era Group Inc., Era Aviation, Inc., Era
Helicopters LLC and two other defendants. SEACOR acquired Era
Group Inc., Era Aviation, Inc., and Era Helicopters LLC in
December 2004.
The complaint alleges that the Defendants violated federal
antitrust laws by conspiring with each other to raise, fix,
maintain or stabilize prices for offshore helicopter services in
the U.S. Gulf of Mexico during the period January 2001 to
December 2005.
The purported class of plaintiffs includes all direct purchasers
of such services and the relief sought includes compensatory
damages and treble damages.
On Sept. 4, 2009, the Defendants filed a motion to dismiss the
complaint. The District Court has yet to rule on that motion.
SEACOR Holdings Inc. -- http://www.seacorholdings.com/-- is a
global provider of equipment and services primarily supporting
the offshore oil and gas and marine transportation industries.
SEACOR offers customers a diversified suite of services including
offshore marine, marine transportation, inland river, aviation,
environmental, commodity trading and logistics and offshore and
harbor towing. SEACOR is focused on providing highly responsive
local service combined with the highest safety standards,
innovative technology, modern, efficient equipment and dedicated
professional employees.
SMITH INT'L: Faces Suits Over Planned Schlumberger Merger
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Smith International, Inc., faces a consolidated action in Texas
and a putative class action in Delaware in relation to its
planned merger with Schlumberger Limited, according to the
company's April 28, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
March 31, 2010.
On Feb. 21, 2010, the company, Schlumberger and Turnberry Merger
Sub, Inc., a wholly-owned subsidiary of Schlumberger, entered
into an Agreement and Plan of Merger, pursuant to which Turnberry
Merger Sub, Inc. will merge with and into the company, with the
company surviving as a wholly-owned subsidiary of Schlumberger.
Subsequent to the announcement of the proposed Merger, five
putative class action lawsuits were commenced on behalf of
stockholders of the company against the company and its directors
and in certain cases against Schlumberger and one of its
affiliates, challenging the proposed transaction.
Four of the lawsuits were filed in the District Court of Harris
County, Texas, which have been consolidated into a single action
in the 164th District Court of Harris County, Texas, and one
lawsuit is pending in the Delaware Court of Chancery.
The plaintiff in the Texas Action has filed a First Amended
Petition. The Actions variously allege that the company's
directors breached their fiduciary duties by, among other things,
causing Smith to enter into the Merger Agreement at an allegedly
inadequate and unfair price and agreeing to transaction terms
that improperly inhibit alternative transactions.
The Texas Action separately alleges that the company aided and
abetted the directors' breaches of fiduciary duties, and both
Actions allege that Schlumberger aided and abetted the directors'
breaches of fiduciary duties.
The complaints seek, among other things, an injunction barring
defendants from consummating the proposed transaction,
declaratory relief and attorneys' fees.
The parties in the Texas Action and Delaware Action have agreed
to an expedited discovery schedule and to the coordination of
pleadings and discovery in advance of any preliminary injunction
hearing, which will be heard only in the Texas Action.
On April 19, 2010, the court in the Delaware Action approved the
parties' agreement concerning the coordination of the Texas and
Delaware actions and agreed to otherwise stay the Delaware
proceedings through any preliminary injunction hearing in Texas.
Smith International, Inc. is a leading supplier of premium
products and services to the oil and gas exploration and
production industry. The company employs over 22,000 full-time
personnel and operates in over 80 countries around the world.
UK HEALTH TRUSTS: Six Doctors Get Okay to Bring Class Action Suit
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The Rochdale Observer reports that six doctors have won the right
to bring a class action against Rochdale's health trust over
accusations of race discrimination.
The GPs, four of whom practice in Rochdale and two in Middleton,
also allege they were victims of age discrimination and
victimisation by bosses at Heywood, Middleton and Rochdale
Primary Care Trust in complaints which date back to 2008.
The four practitioners from Rochdale are Harira Syed and Abdul
Saeed, both of Nye Bevan House, Deeplish, Gowri Swamy of the
Strand Medical Centre, Kirkholt, and Mohammed Humayun of the
Tweedale Street practice.
The Middleton practitioners are James Anglin, of Bowness Road,
and Sajid Khan of Rochdale Road Medical Centre.
At a hearing in Manchester on Monday health chiefs tried to get
the case thrown out arguing the employment tribunal had no
jurisdiction to hear the cases because the doctors were on
contract and not directly employed by the trust.
But lawyers acting for the six claimed there is evidence to
support complaints, which include ignoring race and age
discrimination and not acting in the best interest of the public
by depriving them of experienced doctors after removing medics
from their posts.
Ghazan Mahmood, the barrister acting for the six, told the
Observer: "The pre-hearing was called to determine whether the
tribunal had the jurisdiction to hear these complaints. The PCT
was trying to have the complaints by the GPs struck out. However,
after all the arguments were heard the judge concluded it merited
a full hearing. Each of the doctors in this case has raised
complaints on the grounds of race, age and victimisation. We
believe it is beneficial to the GPs to have this trial because
they will for the first time have a substantive responses to
their complaints. Hitherto, the PCT has failed to respond to
complaints from all six of the doctors, which date back to 2008.
They feel the PCT has put technical hurdles in their way rather
than dealing with the merits of their complaints."
Lesley Mort, executive director of integrated commissioning at
NHS Heywood, Middleton and Rochdale said: "We are co-operating
with legal proceedings relating to this case and will support a
fair and transparent hearing."
The case was adjourned by Judge Peter Russell, pending a full
hearing scheduled for January next year.
VOLVO CARS: N.J. Suit Complains About Defective Transmission
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Courthouse News Service reports that the 2004 Volvo XC 90 has a
defective transmission that disengages during normal driving, and
failed to issue a recall or service bulletin, to hide its
knowledge of it, a class action claims in Bergen County Court,
Hackensack.
A copy of the Complaint in Ludwig, et al. v. Volvo Cars of North
America, Inc., Docket No. L-4624-10 (N.J. Super. Ct., Bergen
Cty.), is available at:
http://www.courthousenews.com/2010/05/10/VolvoCA.pdf
The Plaintiff is represented by:
Howard A. Gutman, Esq.
LAW OFFICE OF HOWARD A. GUTMAN
230 Route 206, Suite 307
Flanders, NJ 07836
Telephone: 973-598-1980
E-mail: Howian@aol.com
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S U B S C R I P T I O N I N F O R M A T I O N
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