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/raid1/www/Hosts/bankrupt/CAR_Public/100714.mbx C L A S S A C T I O N R E P O R T E R Wednesday, July 14, 2010, Vol. 12, No. 137 Headlines ACTIVISION: Class Suit Says CEO Kotick Promised to Pay IW Bonuses AMERICAN AIRLINES: 8th Cir. Upholds Dismissal of Negligence Suit ANADARKO PETROLEUM: Oil Spill Spawns Brower Piven Class Suit ARIZONA: Los Angeles-Based Group Sues Over Immigration Law AUSTRALIA: May Face Suit Over Rent Paid to Aboriginal Communities BANK OF AMERICA: Fails to Meet HAMP Obligations, Suit Claims BEST BUY: Defends "Holloway" Lawsuit in California BLUE SHIELD: Accused of Charging Excessive Insurance Premiums CALAMP CORP: Court Gives Preliminary Approval to Settlement Pact DIRECTV: Sued for Charging Higher "Sales Tax" to Subscribers DISCOVER FINANCIAL: Sued for Engaging in Deceptive Bus. Practices ELECTRONIC ARTS: IP Suit by College Football Players Ongoing FACEBOOK INC: Germany Sues Over Use of Private Information KB HOME: July 26 Hearing Set for Settlement Pact Final Approval LAND O' LAKES: Egg Price-Fixing Suit Remains Pending LIVE NATION: Faces Suit After Rush Concert Cancelled Due to Rain MCNEIL CONSUMER: Recalls Certain Over-The-Counter Products NATIONAL BEEF: NBL Not Liable for Contaminated Wastewater NEW ORLEANS: July 16 Hearing Set for Notice Motion in OPSB Case ORIENTAL TRADING: SmileMakers Recalls Adjustable Football Ring RED HAT: Court Approval of Settlement Agreement Remains Pending ROYAL BANK OF CANADA: Earl Jones Fraud Victims Mull C$40MM Suit SOMANETICS CORP: Faces "Manne" Suit Over U.S. Surgical Merger SPECTRANETICS CORP: Recalls Thrombus Extraction Catheter UNITED STATES: Court Junks Air Traffic Controllers' FLSA Suit WAL-MART STORES: Sued for Underpayment of Retirement Benefits WD-40 CO: Sued in California Over Toilet Bowl Cleaners ********* ACTIVISION: Class Suit Says CEO Kotick Promised to Pay IW Bonuses ----------------------------------------------------------------- James Cottee at games.on.net reports that new allegations have surfaced from the class action suit being brought against Activision by close to 40 current and former Infinity Ward staff. The plaintiffs are now claiming that Activision stationed security guards at all the entrances to Infinity Ward, conducted secret interrogations with staff, and turned their humble offices into a 'police state.' They're also now claiming that Activision CEO Bobby Kotick visited their offices to give his personal assurance that their overdue bonuses would be paid -- and that he did not keep his word. AMERICAN AIRLINES: 8th Cir. Upholds Dismissal of Negligence Suit ---------------------------------------------------------------- Annie Youderian at Courthouse News Service reports that the United States Court of Appeals for the Eighth Circuit upheld the dismissal of a class action accusing American Airlines of false imprisonment and negligence for stranding passengers for nine hours on the tarmac. Lead plaintiff Catherine Ray sued the airlines for false imprisonment and negligence after she waited nine hours for her flight to leave a runway in Austin for the Dallas airport, which had been closed due to bad weather. The airline gave passengers two opportunities to take a bus back to the airport, but Ms. Ray declined. She said the pilot told passengers that if they chose to deplane, they would be "finished with this flight" and would be "on their own." Ms. Ray and her husband stayed on board, which soon became "stuffy" and "smelly," according to the lawsuit. She says passengers were given just "two or three granola bars" and "two soda pops" over nine hours, and one of the toilets in the plane stopped working. The plane was taken to a gate around 9:00 p.m., and many passengers, including Ray and her husband, spent the night in the terminal. A federal judge ruled for American Airlines, and the federal appeals court in St. Louis rejected Ms. Ray's appeal. The three-judge panel dismissed her false imprisonment claim, saying there were no laws capping how many hours an airline could delay its passengers. "Ray has not presented any statute or regulation, federal or state . . . that placed a limit on the number of hours American was permitted to keep passengers aboard one of its airplanes during a delay," Judge Diana Murphy wrote. "Moreover, American provided two opportunities to deplane, and the pilot informed the passengers that the second was their last chance to leave the flight." Ms. Ray's negligence claim fails, the panel ruled, because she "has presented little to no evidence that she suffered physical injury because of American's actions." A copy of the decision in Ray v. American Airlines, Inc., Nos. 09- 2317/09-2357 (8th Cir.), is available at: http://www.ca8.uscourts.gov/opndir/10/07/092317P.pdf ANADARKO PETROLEUM: Oil Spill Spawns Brower Piven Class Suit ------------------------------------------------------------ Brower Piven, A Professional Corporation, said a class action lawsuit has been commenced in the United States District Court for the Southern District of New York on behalf of purchasers of the common stock of Anadarko Petroleum Corporation during the period between June 12, 2009 and June 9, 2010, inclusive. No class has yet been certified in the action. Members of the Class will be represented by the lead plaintiff and counsel chosen by the lead plaintiff. If you wish to choose counsel to represent you and the Class, you must apply to be appointed lead plaintiff no later than August 23, 2010 and be selected by the Court. The lead plaintiff will direct the litigation and participate in important decisions including whether to accept a settlement and how much of a settlement to accept for the Class in the action. The lead plaintiff will be selected from among applicants claiming the largest loss from investment in the Company during the Class Period. You are not required to have sold your shares to seek damages or to serve as a Lead Plaintiff. You may contact Brower Piven (through hoffman@browerpiven.com or 410/415-6616) to answer any questions you may have in that regard. The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 by virtue of the Company's failure to disclose during the Class Period that the Company, 25% owner of the Macondo/Deepwater Horizon well currently leaking millions of gallons of oil into the Gulf of Mexico, had no effective Exploration and Oil Spill Response Plan for Macondo/Deepwater Horizon; that BP implemented drilling procedures to cut costs at the expense of safety; that the Company lacked adequate systems of internal, operational or financial controls to maintain adequate insurance reserves or to meet the known or foreseeable risks associated with its deepwater drilling liabilities; and that defendants lacked any reasonable basis to claim that Anadarko was operating according to plan, or that Anadarko could achieve guidance provided to the investing public. According to the complaint, on April 20, 2010, the Macondo/Deepwater Horizon rig exploded killing 11 platform workers and injuring 17 others. In the wake of this tragedy, defendants allegedly continued to issue materially false and misleading statements representing that the Company would likely incur only approximately $177.5 million in liability for its part in the Macondo/Deepwater Horizon venture. The complaint further alleges that on June 1, 2010, the public began to learn the truth about Anadarko's business, operations, management, and the intrinsic value of Anadarko common stock when it was reported that the Macondo/Deepwater Horizon well could not be capped and investors came to realize there was effectively no plan in place to stop the spill. According to the complaint, that day, the value of shares of Anadarko fell significantly. Also according to the complaint, on June 9, 2010, shares of Anadarko fell significantly, again, after investors learned of the material deficiencies in the Macondo/Deepwater Horizon Exploration and Oil Spill Response Plan, via the Huffington Post, and further learned that, contrary to the Company's previous statements as to its liability exposure, the Company would now be responsible for over $1 billion in clean up costs. If you have suffered a net loss for all transactions in Anadarko Petroleum Corporation common stock during the Class Period, you may obtain additional information about this lawsuit and your ability to become a lead plaintiff by contacting Brower Piven at http://www.browerpiven.com/, by email at hoffman@browerpiven.com , by calling 410/415-6616, or at Brower Piven, A Professional Corporation, 1925 Old Valley Road, Stevenson, Maryland 21153. Attorneys at Brower Piven have combined experience litigating securities and class action cases of over 40 years. If you choose to retain counsel, you may retain Brower Piven without financial obligation or cost to you, or you may retain other counsel of your choice. You need take no action at this time to be a member of the class. ARIZONA: Los Angeles-Based Group Sues Over Immigration Law ---------------------------------------------------------- MyFOX Los Angeles reports that Center for Human Rights and Constitutional Law and the League of United Latin American Citizens filed a federal class action lawsuit on Friday in federal court in Phoenix challenging Arizona's new immigration law. The complaint alleges that Arizona's training materials recently developed and distributed to Arizona law enforcement agencies to implement the law "exacerbate the conflicts between the United States Constitution and federal laws on the one hand, and Arizona law on the other hand." "The training materials issued a few days ago by Arizona are so vague and ill-defined that they will certainly lead to widespread racial profiling and discrimination," said Peter Schey, president of the Center for Human Rights and Constitutional Law. Mr. Schey served as lead counsel in the lawsuit that resulted in California's Proposition 187, which barred illegal immigrants from state-funded services, unconstitutional. He now serves as lead counsel for the plaintiffs in the Arizona case. "The Arizona law and its training materials conflict with federal immigration law in numerous ways so that immigrants who are known to the federal authorities with petitions to legalize their status will nevertheless be subject to detention, arrest and prosecution in Arizona because they do not possess the kinds of specific documentary proof Arizona insists upon to establish lawful presence," he said. The complaint alleges that Arizona's training materials violate federal law "by failing to recognize that numerous categories of immigrants who did not enter the United States lawfully nevertheless are eligible for legalization of status," and "by permitting law enforcement officers to rely upon vague and ill- defined factors" such as a person's dress, difficulty communicating in English, demeanor and claim of not knowing others at the same location as providing justification for a detention based on suspected undocumented status. The lawsuit argues that Arizona's law is "void and should be struck down under the Supremacy Clause of the United States Constitution." The plaintiffs include League of United Latin American Citizens, two university professors who seek standing as taxpayers, and five undocumented immigrants whose presence is known to the federal government and who are seeking legalization of status in pending petitions but do not possess the type of documentation showing lawful residence that the new Arizona law demands to avoid detention, arrest, and prosecution. "As the oldest and largest Hispanic civil rights organization in the United States, we are profoundly disturbed by the anti- immigrant law recently enacted in Arizona," said LULAC National President Rosa Rosales. "We plan to vigorously fight that law, and Arizona's discriminatory training materials to implement the law, in the federal courts, in the Arizona legislature, and in the United States Congress. "Arizona may be frustrated, as are we, with Congress' failure to seriously address comprehensive immigration reform. Nevertheless, the solution is not a patchwork of varying state laws, each trying to be more repressive than the next to force immigrants to go elsewhere." The U.S. Justice Department has also announced that it will seek to have Arizona's law, which allows state law enforcement officers to check the immigration status of suspects stopped for other reasons, to be declared unconstitutional. AUSTRALIA: May Face Suit Over Rent Paid to Aboriginal Communities ---------------------------------------------------------------- Amy Marshall at ABC News reports that the Federal Government of Australia may find itself facing a class action challenging the amount of rent it plans to pay Aboriginal communities, a human rights lawyer says. The Commonwealth says it will pay rent to Aboriginal communities for compulsory five-year leases that it has taken over their land. The High Court ruled the Government must pay fair compensation but lawyer George Newhouse says he is examining claims that the rent does not reflect fair value. "It's very early days," he said. "The Government's only just announced that they're actually going to pay a rent. "We need to sit down with the communities, community by community, look at how much land's been taken by the Commonwealth, get a valuer in and have a look and assess what the true worth of the community land is worth." BANK OF AMERICA: Fails to Meet HAMP Obligations, Suit Claims ------------------------------------------------------------ Jamie Ross at Courthouse News Service reports that despite pocketing $25 billion from the Troubled Asset Relief Program to help homeowners avoid foreclosure, Bank of America refuses to help its customers out because it makes money by turning them away, a class action claims in Federal Court. "Fees that Bank of America charges borrowers that are in default constitute a significant source of revenue to the servicer," the class claims. Though BofA gets $1,000 for each Home Affordable Modification Program loan modification, it's more profitable to "avoid modification and to continue to keep a mortgage in a state of default or distress and to push loans toward foreclosure," according to the complaint. Bank of America refuses to use the government funding for its intended purpose, and forces foreclosures, because modifying mortgage loans would bring it lower monthly service fees, and "(f)ees that Bank of America charges borrowers that are in default constitute a significant source of revenue to the servicer," the class claims. According to the U.S. Treasury, Bank of America has more than 1 million mortgages that qualify for modifications, but BofA has granted only 12,761 permanent modifications, the complaint states -- "just over 1 percent of the eligible pool." Also, the lender's "right to recover expenses from an investor in a loan modification, rather than a foreclosure, is often less clear and less generous," the complaint adds. The homebuyers say that Bank of America has to pay for "additional staffing, physical infrastructure, and expenses such as property valuation, credit reports and financing costs" when granting loan modifications. Bank of America counts on the fees it charges borrowers in default as "a significant source of revenue," the homeowners claim. And the bank adds late fees and "process management fees" to loans to increase the unpaid balance and monthly service fee, the class claims. The complaint cites an October 2009 report from Diane Thompson with the National Consumer Law Center: "Why Servicers Foreclose When They Should Modify and Other Puzzles of Servicer Behavior." According to the 33-page federal complaint: "Economic factors that discourage Bank of America from meeting its contractual obligations under HAMP by facilitating loan modifications include the following: "Bank of America may be required to repurchase loans from the investor in order to permanently modify the loan. This presents a substantial cost and loss of revenue that can be avoided by keeping the loan in a state of temporary modification or lingering default. "The monthly service fee that Bank of America, as the servicer collects as to each loan it services in a pool of loans, is calculated as a fixed percentage of the unpaid principal balance of the loans in the pool. Consequently, modifying a loan to reduce the principal balance results in a lower monthly fee to the servicer. "Fees that Bank of America charges borrowers that are in default constitute a significant source of revenue to the servicer. Aside from income Bank of America directly receives, late fees and 'process management fees' are often added to the principal loan amount thereby increasing the unpaid balance in a pool of loans and increasing the amount of the servicer's monthly service fee. "Entering into a permanent modification will often delay a servicer's ability to recover advances it is required to make to investors of the unpaid principal and interest payment of a non- performing loan. The servicer's right to recover expenses from an investor in a loan modification, rather than a foreclosure, is often less clear and less generous." The class alleges consumer fraud and breach of contract. It wants Bank of America ordered to offer permanent modifications to class members, and ordered to institute "appropriate training of their employees . . . regarding their duties under HAMP." The Plaintiffs are represented by: Robert Carey, Esq. HAGENS BERMAN SOBOL SHAPIRO 11 West Jefferson, Suite 1000 Phoenix, AZ 85003 Telephone: (602) 840-5900 - and - Steve Berman, Esq. HAGENS BERMAN SOBOL SHAPIRO 1918 Eighth Ave., Suite 3300 Seattle, WA 98101 Telephone: (206) 623-7292 BEST BUY: Defends "Holloway" Lawsuit in California -------------------------------------------------- Best Buy Co., Inc., defends a purported class action lawsuit captioned, Jasmen Holloway, et al. v. Best Buy Co., Inc., pending in the U.S. District Court for the Northern District of California. The action was filed in December 2005, and 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 the company's 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 motion was heard in June 2009, but the Court's decision has been delayed as the parties are under order to submit further briefs. No further updates were reported in the company's July 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 29, 2010. With operations in the United States, Canada, Europe, China, Mexico and Turkey, Best Buy Co., Inc. -- http://www.bby.com/-- is a multinational retailer of technology and entertainment products and services with a commitment to growth and innovation. The Best Buy family of brands and partnerships collectively generates more than $49 billion in annual revenue and includes brands such as Best Buy, Best Buy Mobile, Audiovisions, The Carphone Warehouse, Five Star, Future Shop, Geek Squad, Magnolia Audio Video, Napster, Pacific Sales and The Phone House. Approximately 180,000 employees apply their talents to help bring the benefits of these brands to life for customers through retail locations, multiple call centers and Web sites, in-home solutions, product delivery and activities in our communities. Community partnership is central to the way we do business at Best Buy. In fiscal 2010, the company donated a combined $25.2 million to improve the vitality of the communities where its employees and customers live and work. BLUE SHIELD: Accused of Charging Excessive Insurance Premiums ------------------------------------------------------------- Chie Akiba at Courthouse News Service reports that Blue Shield charged California policyholders as much as three times the premiums allowed by state law, a class action claims in Superior Court. The named plaintiff claims she was overcharged by $1,400 a year for 3 years, and estimates the class contains more than 6,000 people. Under the amended Knox-Keene Health Care Service Plan Act of 2000, California set a ceiling on how much health care insurers such as Blue Shield can charge under the Health Insurance Portability and Accountability Act. The law states that "in no case shall the premium charged . . . exceed . . . the average premium paid by a subscriber of the Major Risk Medical Insurance Program who is of the same age and resides in the same geographic area as the federally eligible defined individual," according to the complaint. Named plaintiff Amalia Corona Lample cites a Feb. 18, 2009 Los Angeles Times article that reported that Blue Shield "said it was not required to follow the state-issued rate structure because the company did not believe it was legally binding." Ms. Lample disputes that. She claims Blue Shield charged her $4,376 more than the state allows for her premiums, from 2007 through 2009. She seeks restitution and punitive damages for breach of faith, unfair competition and violations of business law. The defendant is California Physicians' Service dba Blue Shield of California. The Plaintiff is represented by: William Larson, Esq. KIESEL, BOUCHER & LARSON LLP 8648 Wilshire Blvd. Beverly Hills, CA 90211-2910 Telephone: (310) 854-4444 CALAMP CORP: Court Gives Preliminary Approval to Settlement Pact ---------------------------------------------------------------- The Los Angeles County Superior Court gave its preliminary approval to the settlement agreement resolving a class action against CalAmp Corp., according to the company's July 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 29, 2010. In November 2008, a class action lawsuit was filed in the Los Angeles County Superior Court against CalAmp, the former owner of CalAmp's Aercept business and one of Aercept's distributors. The lawsuit alleged that Aercept made misrepresentations when the plaintiffs purchased analog vehicle tracking devices in 2005, which was prior to CalAmp's acquisition of Aercept in an asset purchase. In April 2010, the parties entered into a settlement agreement on terms and conditions that did not have a material impact on CalAmp's financial condition or results of operations. The settlement agreement received the preliminary approval of the Court on April 19, 2010, and is subject to final Court approval. CalAmp Corp. -- http://www.calamp.com/-- is a provider of wireless communications solutions that enable anytime/anywhere access. The company has two segments: Wireless DataCom Division and Satellite Division. CalAmp's Wireless DataCom Division services the public safety, industrial monitoring and controls, and mobile resource management market segments with wireless solutions built on communications technology platforms that include licensed narrowband, unlicensed broadband and cellular networks. CalAmp's Satellite Division supplies outdoor customer premise equipment to the United States Direct Broadcast Satellite (DBS) market. DIRECTV: Sued for Charging Higher "Sales Tax" to Subscribers ------------------------------------------------------------ A class action claims DirecTV charges a higher "sales tax" rather than a "rental tax" for the receivers it leases to subscribers, in Jefferson County Court, Birmingham, Ala. A copy of the Complaint in Pettway et al. v. DirectTV, Inc., Case No. CV-2010-902454 (Ala. Cir. Ct., Jefferson Cty.), is available at: http://www.courthousenews.com/2010/07/09/DirecTV.pdf The Plaintiffs are represented by: Patrick C. Cooper, Esq. James S. Ward, Esq. WARD & WILSON, L.L.C. 2100 Southbridge Parkway, Suite 580 Birmingham, AL 35209 Telephone: (205) 871-5404 DISCOVER FINANCIAL: Sued for Engaging in Deceptive Bus. Practices ----------------------------------------------------------------- Renee Walker, et al., individually and on behalf of others similarly situated v. Discover Financial Services, Inc., et al., Case No. 10-cv-03013 (N.D. Calif. July 8, 2010), accuses the issuer of the Discover credit card, of engaging in deceptive business practices by its confusing and misleading sales tactics to "surreptitiously enroll unwitting Discover Card members to its costly "Payment Protection Plan", in violation of the Cal. Bus. & Prof. Code, the Consumer Protection Statues of various other states, including New Jersey, New York, Pennsylvania, and Texas. The Plan purports to provide both debt suspension and debt cancellation benefits during the benefit period if the member experiences a covered hardship such as disability, hospitalization or one of the other covered events, for a certain fee. The Plan is "disengenuosly" presented as an "optional" benefit to card members, but in actuality, when the unsuspecting card members authorize the Discover agents to mail promotional materials, the agents "unilaterally" extend the scope of that authority and enroll the card members in the Plan without their consent. Discover then requires the card member to take onerous affirmative steps to cancel the Plan. As a result, card members are deluded into enrollment, and caused to pay the attendant monthly fee which is a percentage of their rolling balance. When asked to provide for proof of such enrollment, Discover refuses to provide any such evidence. Plaintiffs also accuse Discover of employing misleading advertising relating to pricing of the Plan, such that members are made to believe that they may be assessed "89 cents per every $100 of his account balance at the end of each monthly billing period" and that card members may only charge the next 89 cents once the rolling balance reaches the next $100 increment, when reality, it charges $.0089 of the card members' account balance at the end of each billing period. In addition, plaintiffs say that these fees are actually finance charges, and in failing to include these fees in the finance charge section of the card members' statement, Discover violates Regulation Z, 12 CFR part 226, of the Federal Truth in Lending Act. The Plaintiffs are represented by: Michael J. Flannery, Esq. John J. Carey, Esq. Francis J. "Casey" Flynn, Jr., Esq. Tiffany M. Yiatras, Esq. CAREY, DANIS & LOWE 8235 Forsyth Blvd., Suite 1100 St. Louis, Mo. 63105 Telephone: (314) 725-7700 - and - Bruce H. Nagel, Esq. Jay J. Rice, Esq. Diane E. Sammons, Esq. NAGEL RICE, LLP 103 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 618-0400 - and - David S. Paris, Esq. Ross H. Schmierer, Esq. PARIS ACKERMAN & SCHMIERER LLP 101 Eisenhower Parkway Roseland, NJ 07068 Telephone: (973) 228-6667 ELECTRONIC ARTS: IP Suit by College Football Players Ongoing ------------------------------------------------------------ Zach Berman, writing for The Washington Post, reports that this time of year once excited Sam Keller. The release of the updated version of the popular NCAA Football video game series by EA Sports is an annual milestone of summer, appearing in stores about seven weeks before the college football season begins. Mr. Keller, a former quarterback at Arizona State and Nebraska, could sit in his college living room with roommates and play as his virtual self -- or at least as a player with the same number, skin tone, height, throwing arm and home state. Whether those likenesses are part of a college athletes' intellectual property is a fundamental issue in a class-action lawsuit filed by Mr. Keller against the NCAA and EA Sports. The issue has been ongoing for more than a year, and likely won't be resolved anytime soon. The newest version of the game will be released on Tuesday, complete with team rosters similar to those that will play on Saturdays this autumn. "Something needed to change about how college football players were being taken advantage of with this game," Mr. Keller said. "College football players, and college athletes in general, they work really hard and to be taken advantage of by this game. I felt we could win this thing." Mr. Keller's attorneys said that the claims against the EA Sports and the NCAA are different. Their issue with EA Sports is the use of the likenesses of the players. Their issue with the NCAA is that college sports' governing body made a deal with the video game manufacturer, turning a blind eye toward the use of the players' likenesses. The suit also names the Collegiate Licensing Company, which is the NCAA's licensing arm. The NCAA contends it "does not attempt to profit from the likenesses of Mr. Keller or any other student-athletes, nor does it license EA to use those images," spokesman Bob Williams wrote in an e-mail. An EA Sports spokesperson wrote: "Our position remains unchanged. We have reviewed the complaint, and we remain confident we will win on the merits. We do not believe that any violations of student-athlete rights have occurred." In a 2006 Indianapolis Star article about the realism in the game, an EA Sports spokesperson said, "This has been an ongoing discussion: 'Okay, how far can we go?' " While stopping short of using the players' names, players are identified by positions and jersey numbers. They also use a different home town, albeit one in their home states. In a similar but separate case, former UCLA basketball standout Ed O'Bannon, along with other former athletes, presented a class- action lawsuit against the NCAA using athletes' images and likenesses without compensation. Mr. Keller does not object with the NCAA making money off licensed products such as jerseys, or even if the school promotes the player for its own purposes. But he said the video game is the most egregious misuse because the players' intellectual property is being violated. "They don't have a name on the back, because they're not allowed to," Mr. Keller said of the players in the video game. "It's supposed to be Arizona State and just a bunch of players. They're not supposed to have each player pixilated, but they do, and it's obvious. The issue with EA Sports is completely separate from any issue with the NCAA. The only reason it comes in line is because EA Sports takes our images, and they're not supposed to. But the NCAA lets it happen. They're not protecting us." EA Sports' NFL version of the game is the popular Madden NFL series, which has an exclusive agreement with the NFL and the players' association that allows EA Sports to use the names and likenesses of players. In the NCAA game, users can manually insert -- or even download online -- the names of players in the game. FACEBOOK INC: Germany Sues Over Use of Private Information ---------------------------------------------------------- The Associated Press Reports that a German data protection official has filed a legal complaint against Facebook, saying people have been griping that their private information was saved by the personal networking site without their knowledge or consent. Johannes Caspar last week said his Hamburg data protection office has taken legal steps against Facebook which could result in it being fined for saving private information of individuals who don't use the site and haven't granted it access to their details. Mr. Caspar says his office received complaints from people who had been contacted by Facebook after it obtained their name and e-mail address through people listing them as a contact. Facebook has until Aug. 11 to respond formally to the legal complaint. KB HOME: July 26 Hearing Set for Settlement Pact Final Approval --------------------------------------------------------------- The U.S. District Court for the Central District of California has set a hearing for July 26, 2010, to consider final approval of the settlement in the suit captioned Bagley et al., v. KB Home, et al., according to the company's July 9, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 31, 2010. On March 16, 2007, plaintiffs Reba Bagley and Scott Silver filed an action brought under Section 502 of the Employee Retirement Income Security Act, 29 U.S.C. Section 1132. The action was brought against the company, its directors, certain of its current and former officers, and the board of directors committee that oversees the KB Home 401(k) Savings Plan. After the court allowed leave to file an amended complaint, plaintiffs filed an amended complaint adding Tolan Beck and Rod Hughes as additional plaintiffs and dismissing certain individuals as defendants. All four plaintiffs claim to be former employees of KB Home who participated in the 401(k) Plan. Plaintiffs allege on behalf of themselves and on behalf of all others similarly situated that all defendants breached fiduciary duties owed to plaintiffs and purported class members under ERISA by failing to disclose information to and providing misleading information to participants in the 401(k) Plan about the company's alleged prior stock option backdating practices and by failing to remove the company's stock as an investment option under the 401(k) Plan. Plaintiffs allege that this breach of fiduciary duties caused plaintiffs to earn less on their 401(k) Plan accounts than they would have earned but for defendants' alleged breach of duties. The parties to the litigation executed a settlement agreement on Feb. 26, 2010. On March 1, 2010, plaintiffs filed a Motion for Preliminary Approval of the Settlement, Certification of a Settlement Class, Approval of Notice Plan and To Set a Time for Fairness Hearing. On March 15, 2010, the court held a hearing on the motion at which it granted preliminary approval of the settlement and requested that the parties make certain revisions to the settlement papers. The parties to the litigation executed an amended settlement agreement on April 5, 2010. On April 12, 2010, the court preliminarily approved the amended settlement and the conditional certification of the settlement class described in the amended settlement. Representing the plaintiffs are: Stephen J Fearon, Jr., Esq. SQUITIERI & FEARON LLP 32 East 57th Street, 12th Floor New York, NY 10022 Telephone: (212) 421-6492 E-mail: stephen@sfclasslaw.com - and - Stephen M. Fishback, Esq. KELLER FISHBACK AND JACKSON LLP 18425 Burbank Boulevard Suite 610 Tarzana, CA 91356-6918 Telephone: (818) 342-7442 Facsimile: (818) 342-7616 E-mail: sfishback@kfjlegal.com Representing the defendants are: Marc T.G. Dworsky, Esq. MUNGER TOLLES & OLSON 355 S. Grand Ave., 35th Fl. Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 E-mail: marc.dworsky@mto.com - and - Michael M. Farhang, Esq. GIBSON DUNN AND CRUTCHER 333 South Grand Avenue, Suite 4600 Los Angeles, CA 90071-3197 Telephone: (213) 229-7005 E-mail: mfarhang@gibsondunn.com LAND O' LAKES: Egg Price-Fixing Suit Remains Pending ---------------------------------------------------- Jason Rodriguez, writing for The Post-Journal, relates that to identify the source of a class-action lawsuit involving thousands of alleged victims and defendants representing virtually the entire egg industry in America, look no further than a Main Street restaurant in Falconer. According to local attorney Arthur Bailey, Esq., the case began with a cup of coffee at T.K. Ribbing's in the spring of 2008. "I am the beginning of it," said Mr. Bailey, who listened to owner Steve Ribbing as he voiced his frustration over the price of eggs. He told Mr. Bailey that he could purchase large quantities at the local grocery store cheaper than he was currently getting them from his wholesaler. Mr. Bailey, whose experience lies with fraud, malpractice claims and class actions, agreed the situation was "economically backward." He said Mr. Ribbing's complaint was quickly referred to James Pizzirusso, Esq., a partner with the Hausfeld LLP firm, and a lawsuit was filed in a federal district court in September 2008. With media attention beginning to focus on soaring prices, the Justice Department declared its intention to investigate the egg industry. Within a month of Mr. Ribbing's original lawsuit it appointed a team of lawyers from Hausfeld to begin a class-action suit. Mr. Bailey, who is not currently among the lead counsel, said he enjoys a working relationship with Hausfeld that has lasted three decades. He said he provides a service for the firm by scouting potential cases. His son, Arthur Bailey Jr., serves as an associate attorney for the firm's San Francisco office. The legal suit in its current form identifies four named plaintiffs who purchased shell eggs directly from the accused producers -- T.K. Ribbing's from Falconer and Lisciandro's Restaurant in Jamestown, followed by two small grocers in Illinois and Reading, Pa. Mr. Bailey said there are potentially thousands of plaintiffs which can join the class but they must have documentation of transactions from the period when the alleged price fixing took place. "I had to gather up all my bills from the past 10 years," said John Lisciandro, recalling when he was contacted by the legal counsel to get involved in the case. Larger companies like chain restaurants and grocery outlets are waiting to decide whether to stake their claim in the suit, said Mr. Bailey, since they retain their own legal representation and may wish to pursue a separate suit. He said these powerful players may seek a part of the final settlement or they may "opt out" and simply utilize the research they've already made. THE DEFENDANTS The egg industry acted "not so much to drive prices up, but to keep their profits where they have been," said Mr. Bailey. An expanded legal complaint has been composed from evidence collected after one defendant was convinced to take a settlement -- which still leaves a large number of industry heavyweights potentially liable. Identified in the suit are 10 producers of shell eggs including Land O' Lakes and its network of subsidiaries as well as Hillendale Farms, the wholesale dealer from Ohio who sold eggs to both Ribbing and Lisciandro. The defendants are represented by Eimer Stahl Klevorn & Solberg LLP. Mr. Bailey said the industry relied on its "quarterback," a trade collective known as United Egg Products to decrease production and raise prices. According to the complaint the UEP's membership controls 96% of the total number of egg-laying hens in the country. Whereas attorneys for the plaintiffs claim the trade group and its companies are violating federal antitrust legislation, the defendants' have cited the CapperVolstead Act, said Mr. Bailey. This law permits the establishment of cooperatives for "producing, handling and marketing farm products." But the lawsuit alleges the defendants crossed legal boundaries, from its experimental "flock reduction" initiative to remove older hens, to an "economic summit" in 2004 where the UEP led an effort to devise a long-term scheme to keep output low and prices inflated. Under the guise of adhering to federal standards for animal ethics, Mr. Bailey said the industry "removed nearly half of chickens from cages nationwide, but cleverly they did not add new cages." He said this cut the domestic supply of eggs almost 50 percent. After naming the defendants the suit reports the identity of all co-conspirators is unknown and will require discovery by the legal counsel. Recently a pair of distributors for Land O' Lakes accepted a $25 million settlement and will have to cooperate with the investigation. "Not only will they have to turn over documents, but they will have to testify," said Mr. Bailey. Although a few smaller defendants have decided to come to terms with a settlement in the past two years, the remainder have clearly indicated they will not quit the game easily. "That's why I love my job," said Mr. Bailey, referring to his defendant adversaries. "I am matching wits all the time with some very creative and superior minds." LIVE NATION: Faces Suit After Rush Concert Cancelled Due to Rain ---------------------------------------------------------------- Cynthia Dizikes, writing for The Chicago Tribune, reports that New York-based Christopher Langone purchased tickets for and traveled to Chicago to see a July 7 Rush concert, billed as a "rain or shine" event, according to a class-action breach of contract lawsuit Mr. Langone filed Friday in Cook County Circuit Court. The event at Charter One Pavilion, however, did not take place Wednesday night due to rain, according to the suit, which names as defendants Live Nation Worldwide; Live Nation Chicago, and the three Rush band members, Gary Lee Weinrib, Neil Peart and Alex Zivojinovic. "After the announcement of cancellation, rain was not significant in Chicago," the lawsuit states. "For example, the Chicago White Sox completed a game in the weather in Chicago on the evening of July 7, 2010." Mr. Langone is suing for an unspecified amount of damages, including the cost of his ticket and his travel. MCNEIL CONSUMER: Recalls Certain Over-The-Counter Products ---------------------------------------------------------- McNeil Consumer Healthcare, Division of McNEIL-PPC, Inc., is recalling 21 lots of over-the-counter medicines. The lots involved are sold in the United States, Fiji, Guatemala, Dominican Republic, Puerto Rico, Trinidad & Tobago, and Jamaica. This action is a follow-up to a product recall that McNeil Consumer Healthcare originally announced on January 15, 2010, which was initiated following consumer complaints of a musty or moldy odor, which has been linked to the presence of trace amounts of a chemical called 2,4,6-tribromoanisole (TBA). The risk of serious adverse medical events is remote. This recall is being conducted with the knowledge of the U.S. Food and Drug Administration (FDA). These lots are being added to the list of recalled products as a precautionary measure after a continuing internal review determined that some packaging materials used in the lots had been shipped and stored on the same type of wooden pallet that was tied to the presence of TBA in earlier recalled lots. All lots involved in the recall were produced before the January 15, 2010 recall, after which McNeil stopped accepting shipments of materials from its suppliers on that type of pallet. Consumers who purchased product from the lots included in this recall should stop using the product and contact McNeil Consumer Healthcare for instructions on a refund or replacement. For these instructions, and information regarding how to return or dispose of the product, consumers should log on to the Internet at http://www.mcneilproductrecall.com/ or call 1-888-222-6036 (Monday-Friday 8:00 a.m. to 8:00 p.m. Eastern Time, and Saturday- Sunday 9:00 a.m. to 5:00 p.m. Eastern Time). Consumers who have medical concerns or questions should contact their healthcare provider. Any adverse reactions may also be reported to the FDA's MedWatch Program by fax at 1-800-FDA-0178, by mail at MedWatch, HF-2, FDA, 5600 Fishers Lane, Rockville, MD 20852-9787, or on the MedWatch Web site at http://www.fda.gov/safety/medwatch/default.htm/ The product lot numbers for the recalled products can be found on the side of the bottle label. Full Recalled Product List -------------------------- Lot UPC Product Name Number Code ------------ ------ ---- BENADRYL(R) ALLERGY ULTRATAB(TM) -------------------------------- BENADRYL(R) ALLERGY ULTRATAB(TM) TABLETS 100 count ABA567 312547170338 -------------------------------- ------ ------------ BENADRYL(R) ALLERGY ULTRATAB(TM) TABLETS 100 count ABA574 312547170338 -------------------------------- ------ ------------ Children's TYLENOL(R) Meltaways ----------------------------- CHILDREN'S TYLENOL(R) MELTAWAYS BUBBLEGUM 30 count ABA544 300450519306 ------------------------------- ------ ------------ MOTRIN(R) IB ---------- MOTRIN(R) IB CAPLET 24 count ACA003 300450481030 -------------------------- ------ ------------ MOTRIN(R) IB CAPLET bonus pack 50+25 count ACA002 300450481764 ------------------------------ ------ ------------ MOTRIN(R) IB TABLET 100 count AFA060 300450463043 --------------------------- ------ ------------ TYLENOL(R), Extra Strength ------------------------ TYLENOL(R), Extra Strength EZ TABLET 225 count ASA206 300450422378 ------------------------------ ------ ------------ TYLENOL(R), Extra Strength EZ TABLET 50 count ABA005 300450422507 ------------------------------ ------ ------------ TYLENOL(R), Extra Strength COOL CAPLET 24 count ABA566 300450444240 -------------------------- ------ ------------ TYLENOL(R), Extra Strength CAPLET bonus pack 24+12 count ACA025 300450444318 -------------------------- ------ ------------ TYLENOL(R), Extra Strength CAPLET 50 count AFA018 300450449078 -------------------------- ------ ------------ TYLENOL(R), Extra Strength CAPLET 50 count ABA168 300450444530 -------------------------- ------ ------------ (included in Day/Night Pack) ---------------------------- TYLENOL(R), Day & Night Value Pack AEC005 300450527103 ----------------------------- ------ ------------ (contains Extra Strength CAPLET 50 count Lot # ABA168 & UPC 300450444530) ----------------------------- TYLENOL(R), Day & Night Value Pack AFC005 300450527103 ----------------------------- ------ ------------ (contains Extra Strength CAPLET 50 count Lot # ABA168 & UPC 300450444530) ----------------------------- TYLENOL(R), Day & Night Value Pack ADC002 300450527103 ----------------------------- ------ ------------ (contains Extra Strength CAPLET 50 count Lot # ABA168 & UPC 300450444530) ----------------------------- TYLENOL(R), Extra Strength RAPID RELEASE GELCAP 24 count ACA024 300450488244 -------------------------- ------ ------------ TYLENOL(R), Extra Strength RAPID RELEASE GELCAP 225 count AJA119 300450488251 -------------------------- ------ ------------ TYLENOL(R) PM ----------- TYLENOL(R) PM CAPLET 24 count ACA005 300450482242 --------------------------- ------ ------------ TYLENOL(R) PM CAPLET 24 count ADA259 300450482242 --------------------------- ------ ------------ TYLENOL(R) PM GELTAB 50 count AFA100 300450176509 --------------------------- ------ ------------ TYLENOL(R) PM RAPID RELEASE GELCAP 20 count ACA004 300450244208 --------------------------- ------ ------------ NATIONAL BEEF: NBL Not Liable for Contaminated Wastewater --------------------------------------------------------- The court has issued a ruling that National Beef Packing Company, LLC's wholly owned subsidiary, National Beef Leathers LLC, was not liable under a successor liability theory for the conduct of the tannery's previous owner and another party prior to NBL's purchase of the tannery, according to the company's July 9, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 29, 2010. NBL was named as a defendant in seventeen currently pending lawsuits involving NBL's tannery located in St. Joseph, Missouri. NBL purchased certain assets of the tannery from Prime Tanning in March 2009. The lawsuits are pending in the Circuit Courts of Buchanan County, Clinton County, Ray County, and DeKalb County, Missouri and in the U.S. District Court for the Western District of Missouri and were filed between April 22, 2009 and March 12, 2010. The lawsuits allege that Prime and NBL spread wastewater sludge containing hexavalent chromium in four counties in northwest Missouri. The lawsuits currently include fifteen actions filed by individual plaintiffs and two purported class actions. The plaintiffs are seeking an unspecified amount of damages for wrongful death, personal injury, pain and suffering, economic damages, punitive damages, diminished property values and medical monitoring. On May 11, 2010, the court issued an order ruling that NBL is not liable under a successor liability theory for the conduct of the tannery's previous owner and another party prior to NBL's purchase of the tannery. As a result of this ruling, the plaintiffs in 15 lawsuits filed between April 22, 2009 and April 29, 2010, in the Circuit Courts of Buchannan County, Clinton County, and DeKalb County, Missouri seeking damages for economic damages, punitive damages, diminished property values and medical monitoring voluntarily dismissed their claims against NBL in June 2010. National Beef Packing Company, LLC -- http://www.nationalbeef.com/-- has operations in Liberal and Dodge City, Kansas; Brawley, California; Hummels Wharf, Pennsylvania; Moultrie, Georgia, St. Joseph, Missouri and Kansas City, Kansas. National Beef processes and markets fresh beef, case-ready beef and beef by-products for domestic and international markets. In fiscal year 2008, National Beef generated sales of $5.8 billion and processed 3.8 million head of cattle. U.S. Premium Beef, LLC --http://www.uspremiumbeef.com/-- is the majority owner of National Beef. NEW ORLEANS: July 16 Hearing Set for Notice Motion in OPSB Case --------------------------------------------------------------- Alejandro de los Rios at The Louisiana Record reports that Judge Ethel Julien will hear a notice motion in a five-year-old class action suit against the Orleans Parish School Board on July 16 in Orleans Parish Civil District Court. New Orleans principal Eddy Oliver, teacher's aide Oscarlene Nixon and OPSB custodian Mildred Goodwin lead the class of 7,500 current and former OPSB employees who claim they were wrongfully terminated after most of New Orleans' public schools were flooded during hurricane Katrina. The State of Louisiana Board of Elementary and Secondary Education, the State Department of Education and the Recovery School District were added as defendants in the suit after the state took more than 100 schools in Orleans Parish in the wake of Katrina. On March 30, Willie Zanders, Esq., on behalf of the class, filed a motion to approve short form notice, long form notice, opt-out form and manner of publication of notice/opt-out asking Judge Julien to approve for class counsel to send notice to 5,000 class members about the trial and to place an ad in New Orleans-area newspapers to notify the remaining 2,500 class members. In a joint opposition against the plaintiff's motion, the defendants argued that the notice motion is "defective in both its dissemination plan and its substance," noting that it "makes no effort to identify missing class members or update their existing addresses." Defense counsel pointed to the difficulty in locating many class members since many have relocated permanently since Katrina and that the plaintiff's notice may not reach many potential class members that no longer live in the New Orleans area. The case was originally filed as an injunctive relief for Oliver, Nixon and Goodwin, in which they claimed that the OPSB's proposed plan to turn several of its schools into quasi-charter schools would "end public schools in New Orleans." The initial request, which essentially asked that teachers that were hired by the OPSB be retained in schools that were taken over by the RSD, was denied. But in a September 2007 ruling, Judge Julien acknowledged other causes of action including wrongful termination and breach of contract. In December 2008, Judge Julien certified the class as "all current or former employees of the OPSB prior to Hurricane Katrina." The class includes principals, teachers, paraprofessionals, central office administrators, secretaries, social works, food service, maintenance and other service workers that had been hired by the OPSB. Judge Julien's ruling was appealed to the Louisiana Fourth District Court of Appeals. In November 2009, Judge Edwin Lombard, Judge Terri Love and Judge Paul Bonin affirmed the class certification. The case was appealed to the Louisiana Supreme Court, which voted not to block the case on March 5. Orleans Parish Case 2005-12244. The class is represented by: Willie Matthews Zanders, Esq. 2311 Peniston St. New Orleans, LA 70115 Telephone: (504) 258-7312 - and - Suzette P. Bagneris, Esq. THE BAGNERIS LAW FIRM Energy Centre 1100 Poydras Street, Suite 1455 New Orleans, Louisiana 70163 Telephone: (504) 552-4828 E-mail: sbagneris@bagnerislawfirm.com - and - Clarence Roby, Jr., Esq. Law Office of Clarence Roby APLC 3701 Canal St., Ste. U New Orleans, Louisiana - and - Anthony Irpino, Esq. Irpino Law Firm 201 St. Charles Avenue, Suite 2546 New Orleans, Louisiana - and - Roderick Alvendia, Esq. Alvendia Kelly & Demarest 1515 Poydras St., Ste. 1400 New Orleans, Louisiana - and - Juana Lombard, Esq. - and - Charles M. Samuel III, Esq. RITTENBERG, SAMUEL & PHILLIPS, L.L.C. 715 Girod Street, Suite 100 New Orleans, LA 70130 Telephone: (504) 524-5555 Facsimile: (504) 524-0912 - and - Walter Willard, Esq. The Willard Firm, PLC 1515 Poydras St., Ste. 1420 New Orleans, Louisiana The OPSB is represented by: William Aaron Jr., Esq. Renee F. Smith, Esq. GOINS AARON, PLC 201 Saint Charles Avenue, Suite 3800 New Orleans, Louisiana 70170-1034 Telephone: (504) 569-1800 Facsimile: (504) 569-1801 The State agencies are represented by: Michael H. Rubin, Esq. M. Brent Hicks, Esq. Jon Ann H. Giblin, Esq. MCGLINCHEY STAFFORD, PLLC One American Place, 14th Floor, 301 Main Street Baton Rouge, Louisiana 70825 Telephone: (225) 383-9000 Facsimile: (225)) 343-3076 E-mail: mrubin@mcglinchey.com bhicks@mcglinchey.com jgiblin@mcglinchey.com - and - Angelique Freel, Esq. Assistant Attorney General ORIENTAL TRADING: SmileMakers Recalls Adjustable Football Ring -------------------------------------------------------------- Oriental Trading Company, Inc. and its wholesale subsidiary, Fun Express, Inc. were recently notified that a supplier to doctor's and dentist's offices, SmileMakers, has issued a voluntary recall of an item previously sold by both companies because of the presence of cadmium in the metal substrate. This product, a football adjustable ring, has not been sold by Oriental Trading Company, Inc. or Fun Express, Inc. since last year and is no longer in stock. Oriental Trading Company, Inc. and Fun Express, Inc. strive to lead the industry in product safety excellence. The companies actively engage suppliers in product safety matters, conduct factory inspections, and adhere to product safety and quality standards that meet or exceed those established by federal, state and industry authorities. The companies have a well-earned reputation for supplying safe and enjoyable products and highly value the trust that parents, teachers and families place in their products every day. The companies' football adjustable rings passed rigorous testing prior to distribution. The companies have no information to indicate that the item may present a hazard to children and believe that the football adjustable rings comply with all applicable safety requirements. However, the companies' top priority is product safety and, as a precaution, the companies are voluntarily recalling the item. The companies recommend that consumers immediately dispose of the item (football adjustable ring, item # 42/4359). For a refund or exchange for another product, consumers may call (800) 723-6155 between the hours of 6:00 a.m. and 11:00 p.m. Central Standard Time, Monday through Friday, and 7:00 a.m. and 8:00 p.m. Central Standard Time, Saturday or Sunday. About Oriental Trading Company Oriental Trading Company -- http://www.orientaltrading.com-- is the nation's largest direct merchant of value-priced party supplies, arts and crafts, toys and novelties, and a leading provider of affordable home d�cor and giftware. Recognized as one of the Top 10 online retailers based on customer satisfaction and one of the Top 50 Catalog Companies, Oriental Trading Company employs approximately 3,000 employees and offers more than 30,000 products to individuals, teachers, schools, churches, businesses and not-for-profit organizations. From pink flamingos, party supplies and grass skirts to holiday decorations, scrapbooking supplies, and crafts. About Fun Express Fun Express -- http://www.funexpress.com-- is a leading business to business supplier of toys, novelties, giftware, party supplies and promotional premiums. Fun Express carries over 10,000 items including wholesale toys, wholesale novelties, wholesale party favors, wholesale decorations, and are the leading wholesale supplier to party retailers, family entertainment centers and restaurants. Fun Express supplies bulk quantities on a wholesale basis for several business needs including promotional premiums, redemption center supplies, special events and parties, gifts with purchase, brand identification campaigns, kids' meal programs, retail stores and more! RED HAT: Court Approval of Settlement Agreement Remains Pending --------------------------------------------------------------- The approval of an agreement to settle a class action lawsuit against Red Hat, Inc., remains pending in the U.S. District Court for the Eastern District of North Carolina. In the summer of 2004, 14 class action lawsuits were filed against the company and several of its former officers on behalf of investors who purchased the company's securities during various periods from June 19, 2001 through July 13, 2004. All 14 suits were filed in the U.S. District Court for the Eastern District of North Carolina. In each of the actions, plaintiffs sought to represent a class of purchasers of the company's common stock during some or all of the period from June 19, 2001 through July 13, 2004. All of the claims arose in connection with the company announcement on July 13, 2004 that it would restate certain of its financial statements. One or more of the plaintiffs asserted that certain former officers (Individual Defendants) and the company violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended, and Rule 10b-5 thereunder by issuing the financial statements that the company subsequently restated. One or more of the plaintiffs sought unspecified damages, interest, costs, attorneys' and experts' fees, an accounting of certain profits obtained by the Individual Defendants from trading in the Company's common stock, disgorgement by the company's former chief executive officer and former chief financial officer of certain compensation and profits from trading in the company's common stock pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 and other relief. As of Sept. 8, 2004, all of these class action lawsuits were consolidated into a single action referenced as Civil Action No. 5:04-CV-473BR and titled In re Red Hat, Inc. Securities Litigation. On May 6, 2005, the plaintiffs filed an amended consolidated class action complaint. On July 29, 2005, the company, on behalf of itself and the Individual Defendants, filed a motion to dismiss the action for failure to state a claim upon which relief may be granted. Also on that date, PricewaterhouseCoopers LLP, another defendant, filed a separate motion to dismiss. On May 12, 2006, the Court issued an order granting the motion to dismiss the Securities Exchange Act claims against several of the Individual Defendants, but denying the motion to dismiss the Securities Exchange Act claims against the company, its former chief executive officer and former chief financial officer. The Court dismissed the claims under the Sarbanes-Oxley Act in their entirety, and also granted PwC's motion to dismiss. On Nov. 6, 2006, the plaintiffs filed a motion for class certification. Subsequent to the filing of that motion, several plaintiffs withdrew as potential class representatives, and the company opposed the certification of the remaining proposed class representatives. On May 11, 2007, the Court entered an order denying class certification and denying all other pending motions as moot. Thereafter, on July 13, 2007 Charles Gilbert filed a renewed motion for appointment as lead plaintiff and approval of selection of lead counsel. On Nov. 13, 2007, the Court entered an Order allowing Gilbert's motion, appointing him lead plaintiff and adding him as a party plaintiff and appointing lead counsel. On Jan. 14, 2008, Gilbert's counsel filed a motion to certify the action as a class action. On Aug. 28, 2009, the Court entered an Order certifying the action as a class action, appointing Gilbert as the class representative, and defining the class as "all purchasers of the common stock of Red Hat, Inc. between Dec. 17, 2002, and July 12, 2004, inclusive and who were damaged thereby," excluding company insiders. On Dec. 15, 2009, the company announced that it had reached an agreement in principle to settle this matter, subject, among other matters, to completion of a final written settlement agreement and court approval. The company recorded, for its quarter ended Nov. 30, 2009, an estimated liability in the amount of $8.8 million for its portion of the proposed settlement. On March 29, 2010, counsel for the class filed a Motion for Preliminary Approval of the Settlement and, on June 11, 2010, a United States Magistrate Judge issued a Memorandum and Recommendation to the presiding judge that the motion be approved, according to the company's July 9, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 31, 2010. Red Hat, Inc. -- http://www.redhat.com/-- is the world's leading open source solutions provider and a component of the S&P 500, is headquartered in Raleigh, NC with over 65 offices spanning the globe. ROYAL BANK OF CANADA: Earl Jones Fraud Victims Mull C$40MM Suit --------------------------------------------------------------- CTV Montreal reports that victims of fraudster Earl Jones gathered in Pointe-Claire on Saturday to discuss their plight for justice and efforts to launch a C$40 million class-action lawsuit against the Royal Bank of Canada. The meeting falls one year after Quebec's securities regulator froze the accounts of the shamed financial planner and began investigating his activities. Mr. Jones' victims say he was able to carry out his financial crimes because the bank was negligent. Their lawsuit application will be heard July 14. "Mr. Jones used the Royal Bank exclusively to perpetrate his Ponzi Scheme for 27 years, and not only that, specifically one bank account," said group spokesperson Joey Davis. "We're very confident that the motion will be granted on Wednesday and that we'll be able to institute the actual action against the Royal Bank thereafter," he added. In January, Mr. Jones pleaded guilty to two charges related to defrauding investors of roughly C$50 million. He was sentenced to 11 years in jail, but is eligible for parole after 22 months of detention. SOMANETICS CORP: Faces "Manne" Suit Over U.S. Surgical Merger ------------------------------------------------------------- Somanetics Corporation faces a putative class action complaint, titled Stanley Manne v. Somanetics Corporation, et al., filed in the Sixth Judicial Circuit Court for the State of Michigan in connection with its planned merger with United States Surgical Corporation, according to the company's July 9, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 31 2010. On June 16, 2010, United States Surgical and Covidien DE Corp, entered into an Agreement and Plan of Merger with the company. On June 30, 2010, a shareholder filed a complaint naming as defendants Somanetics and each of its directors, as well as United States Surgical Corporation, Covidien plc, and Covidien DE Corporation. The complaint alleges, among other things, that the consideration to be paid to shareholders under the terms of the Merger Agreement is unfair and undervalues Somanetics, that the directors breached their fiduciary duties by, among other things, failing to maximize shareholder value and failing to engage in a fair sale process, that Somanetics, United States Surgical Corporation, Covidien plc and Covidien DE Corporation aided and abetted the alleged breaches of fiduciary duties, and that Somanetics failed to adequately disclose material information regarding the Offer. The complaint seeks, among other relief, to enjoin the consummation of the Offer, or if the Offer is consummated, to rescind the Offer. Somanetics Corporation -- http://www.somanetics.com/-- develops, manufactures and markets the INVOS(R) Cerebral/Somatic Oximeter. The INVOS System is the only commercially-available cerebral/somatic oximeter with labeling for improved outcomes after surgery in patients above 2.5 kg. The INVOS System is the clinical reference standard in cerebral/somatic oximetry, with a 12-year market track record, more than 750 clinical references and implementation at approximately 800 U.S. hospitals. Somanetics also develops, manufactures and markets the Vital Sync(TM) System, a device that integrates data from bedside devices into a single system for enhanced patient assessment and decision making, data management and data storage. Somanetics supports its customers through a direct U.S. sales force and clinical education team. Covidien markets INVOS System products in Europe, Canada, the Middle East and South Africa and Edwards Lifesciences represents INVOS System products in Japan. SPECTRANETICS CORP: Recalls Thrombus Extraction Catheter -------------------------------------------------------- Spectranetics Corporation initiated a voluntary recall of specific lots of its thrombus extraction catheter (product number 60090-01) manufactured by Spectranetics since October 2009. The Food and Drug Administration has been informed of this action and communication to various Competent Authorities outside of the United States has begun. While Spectranetics has received and confirmed customer complaints on this issue, no adverse events have been reported to the Company. Customers who have received the affected lots of product will receive a letter from Spectranetics with requested actions and product replacement instructions. A manufacturing process improvement to correct the issue has been implemented and product is available for shipment. The occurrence of this issue is very low and may result in a blocked guidewire lumen that restricts the loading of the thrombus extraction catheter onto the guidewire prior to insertion of the catheter into the patient. The Company plans to replace all affected units and estimates costs in the range of $250,000 to $400,000, which will be recorded within cost of goods sold during the quarter ended June 30, 2010. The cost estimate includes replacement of customer inventory as well as the write-off of Spectranetics inventory impacted by this issue. Inventory of the thrombus extraction catheter is currently available and production volumes have been increased so that all customer demand and replacement product can be fulfilled over the next several weeks. "We are committed to deliver high-quality devices to our customers and their patients. We will endeavor to complete this voluntary action and the replacement of affected product in an expedient manner," stated Emile J. Geisenheimer, Chairman, President and Chief Executive Officer. About Spectranetics Spectranetics develops, manufactures, markets and distributes single-use medical devices used in minimally invasive procedures within the cardiovascular system. The Company's products are sold in 40 countries throughout the world and are used to treat arterial blockages in the heart and legs as well as the removal of problematic pacemaker and defibrillator leads. The Company's Vascular Intervention (VI) products include a range of peripheral and cardiac laser catheters for ablation of occluded arteries above and below the knee and within coronary arteries. The Company also markets aspiration and thrombectomy catheters for the removal of thrombus and support catheters to facilitate crossing of coronary and peripheral arterial blockages. The Lead Management (LM) product line includes excimer laser sheaths and cardiac lead management accessories for the removal of problematic pacemaker and defibrillator cardiac leads. UNITED STATES: Court Junks Air Traffic Controllers' FLSA Suit ------------------------------------------------------------- Courthouse News Service reports that air traffic controllers at the Edwards Air Force Base in south-central California lost their class-action bid for overtime pay in the U.S. Court of Federal Claims. Air traffic controllers sought overtime pay for time spent in security inspections and the time they spent on required medical examinations. They also demanded overtime pay for their unused "credit hours," or extra hours worked in exchange for paid leave. When the Federal Aviation Administration no longer allowed workers to rack up credit hours, employees had to either cash in their accrued credit hours at the regular hourly rate or swap them for one hour of paid leave. Air traffic controllers claimed they should receive overtime pay for each credit hour earned, rather than their regular wage. Because credit hours are not overtime hours under the Fair Labor Standards Act, Judge Charles Lettow wrote, the plaintiffs are not entitled to overtime pay. The claims court also rejected their pay demands for time spent on mandatory security inspections and medical exams. Judge Lettow granted the government's cross-motion for summary judgment. A copy of the Opinion and Order in Whalen, et al. v. United States, No. 07-707C (Fed. Cl. Ct.), is available at: http://is.gd/doQhx WAL-MART STORES: Sued for Underpayment of Retirement Benefits -------------------------------------------------------------- Diana Alexander-Jones, on behalf of herself and others similarly situated v. Wal-Mart Stores, Inc., et al., Case No. 10-cv-03005 (N.D. Calif. July 8, 2010), asserts claims against the fiduciaries of the Wal-Mart Profit Sharing and 401(k) Plan for violations of the Employee Retirement Income Security Act of 1974. Ms. Alexander-Jones accuses the world's biggest retailer of conspiring to underpay retirement benefits to its female hourly employees who participated in the Plan during the period July 1, 2004, to the present. The complaint seeks to recover "tens or hundreds of millions of dollars" of retirement savings that should have been, but were not, paid as a result of Wal-Mart's illegal underpayment and suppression of employee wages due to gender discrimination. Ms. Alexander-Jones says the Plan provides that Wal-Mart shall make both 401(k) and profit sharing contributions to the Plan each year, equal in amount to a specified percentage of the annual regular salary of Wal-Mart employees who participate in the Plan. In reality, however, Ms. Alexander-Jones explains that Wal-Mart underpaid its contributions to the Plan by wrongfully failing to promote and wrongfully underpaying female Plan participants. By lowering the total amount of wages female Wal-Mart employees received, Ms. Alexander-Jones relates that Company improperly reduced the total amount of Plan assets thereby lowering the amount of retirement and profit sharing benefits hourly workers received. Upon information and belief, Ms. Alexander-Jones understands that female employees are paid less than their male counterparts even though they perform substantially similar work, and even though female employees have similar or greater skills and experience. Pursuant to Civil L.R. 3-12, Plaintiffs also submitted to the Court a Notice of Related Cases in the above captioned case. Plaintiffs believe that the case "Dukes v. Wal-Mart Stores, Inc.", Case No. 01-cv-02252, filed June 8, 2001, in the Northern District of California is related. Ms. Alexander-Jones believes that this complaint appears to concern substantially the same parties, property, transaction, or event as her case. In light of these common issues, Ms. Alexander-Jones narrates that assignment of these cases to a single judge is "likely to promote judicial economy by avoiding an unduly burdensome duplication of labor and expense or conflicting results that might ensue if the cases were conducted before different judges." Parties in any of these cases may file and serve a response supporting this Notice not later than twenty-one (21) days before the hearing date on this Notice. The Plaintiffs are represented by: Todd M. Schneider, Esq. SCHNEIDER WALLACE COTTRELL BRAYTON KONECKY LLP 180 Montgomery St., Suite 2000 San Francisco, CA 94104 Telephone: (415) 421-7100 E-mail: tschneider@schneiderwallace.com - and - Todd S. Collins, Esq. Ellen T. Noteware, Esq. BERGER & MONTAGUE, P.C. 1622 Locust Street Philadelphia, PA 19103 Telephone: (215) 875-3000 E-mail: tcollins@bm.net enoteware@bm.net - and - Ann Miller, Esq. ANN MILLER, LLC The Benjamin Franklin 834 Chestnut Street, Suite 206 Philadelphia, PA 19107 Telephone: (215) 238-0468 - and - Kurt Olsen, Esq. KLAFTER OLSEN & LESSER, LLP 1250 Connecticut Ave., N.W., Suite 200 Washington, DC 20036 Telephone: (202) 261-3553 - and - Jeffrey Klafter, Esq. Seth Lesser, Esq. KLAFTER OLSEN & LESSER, LLP Two International Drive, Suite 350 Rye Brook, NY 10573 Telephone: (914) 934-9200 WD-40 CO: Sued in California Over Toilet Bowl Cleaners ------------------------------------------------------ WD-40 Company faces the matter Andrea Burns v. WD-40 Company in connection with its automatic toilet bowl cleaners, according to the company's July 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended May 31, 2010. The legal action was filed on June 18, 2010, against the company in the Superior Court of California for the County of Orange. The complaint seeks class action status and alleges that the company misrepresented that its 2000 Flushes Bleach and 2000 Flushes Blue Plus Bleach automatic toilet bowl cleaners (ATBCs) are safe for plumbing systems and that the company has unlawfully omitted to advise consumers regarding allegedly damaging effects that the use of the ATBCs is claimed to have on toilet parts made of plastic, rubber and metal. The complaint seeks to remedy the company's allegedly wrongful conduct: (i) by requiring the company to compensate consumers who have purchased the ATBCs; (ii) by enjoining the company from the use of allegedly misleading advertising for the ATBCs; and (iii) by other legal and equitable relief and the award of interest, attorneys' fees and costs. If class action certification is granted in this legal proceeding, the company says it is reasonably possible that the outcome could have a material adverse effect on its consolidated financial position, results of operations or cash flows. WD-40 Company -- http://www.wd40company.com/-- is a global consumer product company dedicated to delivering unique, high- value and easy-to-use solutions for a wide variety of maintenance needs of "doer" and "on-the-job" users by leveraging and building the brand fortress of the company. The company markets three multi-purpose maintenance product brands - WD-40(R), 3-IN-ONE(R) and BLUE WORKS(TM) - and eight homecare and cleaning product brands: X-14(R) mildew stain remover and automatic toilet bowl cleaners, 2000 Flushes(R) automatic toilet bowl cleaners, Carpet Fresh(R) and No Vac(R) rug and room deodorizers, Spot Shot(R) aerosol and liquid carpet stain removers, 1001(R) carpet and household cleaners and rug and room deodorizers, and Lava(R) and Solvol(R) heavy-duty hand cleaners. WD-40 Company markets its products in more than 160 countries worldwide and recorded sales of $292 million in fiscal year 2009. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy and Peter A. Chapman, Editors. 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