/raid1/www/Hosts/bankrupt/CAR_Public/100923.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, September 23, 2010, Vol. 12, No. 188
Headlines
ALPHATEC HOLDINGS: Kahn Swick Accepting Clients in Class Action
ARCSIGHT INC: D&Os Sued for Breach of Fiduciary Duties
AUSTRALIA: Activist Group Campaigns Against Bank Penalty Fees
BEMIS CO: 7th Circuit Revives Class Suit Over Pact With Retirees
BURLINGTON COAT: Continues to Defend FLSA-Violations Complaint
CALAMOS INVESTMENTS: Faces ARPS-Related Suit
CLEAR CHANNEL: Flood Victims to Pursue Legal Case
ERICA BRACHFELD: Sued for Violation of Rosenthal Fair Debt Act
FEDEX CORP: FedEx Ground Continues to Defend "Tidd" Suit
FEDEX CORP: Express Continues to Defend "Bibo" Wage & Hour Suit
FEDEX CORP: FedEx Freight Defends "Taylor" Wage-and-Hour Lawsuit
FEDEX CORP: Plaintiffs' Appeal in "Anfinson" Suit Still Pending
FEDEX CORP: Appeal Class Certification Ruling in "Rascon" Suit
FEDEX CORP: FedEx Ground's Summary Judgment Motion Granted
FORTUNE HI-TECH: Lawyer Believes Suit Will Be Certified Soon
FUWEI FILMS: Reaches Final Settlement Agreement in Securities Suit
GLOBAL SHIP: 11th Circuit Dismisses Appeal on Suit Settlement
GLOBAL SHIP: Settlement Agreement in Canada Suits vs. CEO Okayed
GREENE TURTLE: Judge Certifies Class Suit Over Wage Violations
HEALTH GRADES: Modifies Merger Agreement to Resolve Two Suits
HICKORY SPRINGS: Sued Over Alleged Polyurethane Foam Price-Fixing
ICELAND: Coalition Heralds Class Action Against Banks
LAFAYETTE INSURANCE: Court Decision on Katrina Class Suits Pending
LINCOLN EDUCATIONAL: Bernstein Liebhard Files Class Suit
MICROTUNE INC: Faces "Goldstein" Suit Over Planned Zoran Merger
MICROTUNE INC: Faces Four Suits in State Court Over Zoran Merger
NBTY INC: Inks MOU to Settle Suit Over Planned Alphabet Merger
NEW MEXICO: Corrections Dep't. Accused of Not Paying Overtime
PALAU: Faces Class Suit Over Alien Registration Scheme
ROHM AND HAAS: Civil Trial on Brain Cancer Suit Starts
SANFORD BROWN: Plaintiffs Seek to Amend Complaint to Add Claims
SEARS ROEBUCK: Court to Hear Motion to Dismiss "Dalla Riva" Suit
SONY COMPUTER: Seeks Dismissal of PS3 & "Other OS" Class Suit
TOYOTA MOTOR: Nov. 19 Hearing Set on Bid to Dismiss Recall Suits
UNITEDHEALTH GROUP: Court Gives Final Okay to $350MM Settlement
WPCS INTERNATIONAL: Faces "Pignataro" Suit in Delaware
XSTRATA PLC: Will Counter Lead Poisoning Class Suit in Court
* Business Groups Say Disclosure Proposal Could Fuel Class Suits
* Class Action Regimes in Australia Appear Underutilized
*********
ALPHATEC HOLDINGS: Kahn Swick Accepting Clients in Class Action
---------------------------------------------------------------
Kahn Swick & Foti, LLC, a nationally recognized law firm with
offices in New York and Louisiana, and KSF partner Charles C.
Foti, Jr., former Attorney General of Louisiana, disclosed that
the firm is accepting clients with large financial interests in a
securities class action filed in the United States District Court
for the Southern District of California on behalf of purchasers of
Alphatec Holdings, Inc., (NASDAQ: ATEC) common stock during the
period December 18, 2009 and August 5, 2010.
If you are a current or former Alphatec shareholder who has
suffered losses on your investment during this period and would
like to receive a copy of this complaint and discuss your rights
as a class member and/or apply for lead plaintiff, you may,
without obligation or cost to you, prior to the statutory deadline
of October 12, 2010, e-mail or call:
Lewis Kahn
Managing Partner
KAHN SWICK & FOTI, LLC
206 Covington St.
Madisonville, LA 70447
Toll free: 1-866-467-1400, ext. 200
Cellphone: 504-301-7900
E-mail: lewis.kahn@ksfcounsel.com
- or -
Neil Rothstein, Esq.
Director of Client Relations
KAHN SWICK & FOTI, LLC
Toll free: 877-694-9510
Cellphone: 330-860-4092
E-mail: neil.rothstein@ksfcounsel.com
You may also visit KSF's website at http://www.ksfcounsel.com/to
contact the firm online.
SPECIAL NOTICE: KSF encourages you to carefully evaluate any firm
you may consider to represent your interests in the Alphatec class
action. The Private Securities Litigation Reform Act ("PSLRA")
permits Company shareholders to choose counsel of their choice to
prosecute this action as it moves forward. Critical components of
a law firm's ability to successfully prosecute this action and
obtain a strong recovery for you include the resources it will
dedicate to prosecution of the case, including the number of
lawyers the firm has available for the Alphatec action in
particular, AND especially the quality of the firm's work. Any
member of the putative class may move the Court to serve as lead
plaintiff through counsel of their choice, or may choose to do
nothing and remain an absent class member.
ARCSIGHT INC: D&Os Sued for Breach of Fiduciary Duties
------------------------------------------------------
Thomas Turberg, on behalf of himself and others similarly
situated v. ArcSight, Inc., et al., Case No. 5821- (Del. Ch. Ct.
September 16, 2010), accuses certain officers and directors of
ArcSight, Inc., of breaching their fiduciary duties to the
Company's public shareholders in connection with the Company's
proposed merger with acquirer Hewlett-Packard Company, via a
tender offer, in a transaction valued at roughly $1.5 billion.
Under the terms of the Merger, ArcSight shareholders will receive
$43.50 per share in cash for each share of AcrSight common stock.
Mr. Turberg says that the price proposed to be paid by HP is too
low, given the Company's strong financial growth, anticipated 21%-
25% revenue growth for the fiscal 2011 quarter (over the same
period of fiscal 2010), and the Company's leadership position in
the Security Information and Event Management Market. In
addition, Mr. Turberg says, the process by which the merger is
proposed to be consummated is fundamentally unfair, as defendants
have agreed to preclusive devices in the Merger Agreement and a
Top-Up Option that make the Merger coercive to Arcsight
shareholders.
HP, a Delaware information technology corporation that markets
personal computers, and its wholly owned subsidiary, Priam
Acquisition Corporation, are sued for knowingly aiding and
abetting the individual defendants' breaches of fiduciary duties.
ArcSight is global provider of security and compliance management
solutions whose "market-leading ArcSight platform enables
organizations to proactively safeguard their digital assets,
control the risks associated with cybertheft, cyberfraud,
cyberwarfare and cyberspionage and comply with corporate and
regulatory policy." ArcSight is listed on the NASDAQ exchange
under the symbol "ARST."
The individual defendants who are being sued in the civil action
include CEO and President Thomas Reilly, and directors Sandra
Bergeron, William P. Crowell, Stanton McKee, Jr., Craig Ramsey,
Scott A Ryles, Ted Schlein, Roger S. Siboni, and Ernest von
Simson. The Complaint says Mr. Ramsey and Mr. Schlein
beneficially own 2,319,334 shares and 2,750,301, respectively, of
ArcSight common stock. Mr. Schlein is also a partner at Kleiner
Perkins Caufield & Byers ("KPCB"), a venture capital firm, which
together with its various affiliates, beneficially owns 7,883,003
shares of ArcSight common stock.
The preclusive deal protection devices include: (1) a "Top Up
Option" which allows HP to acquire up to 90% plus one share and
pursue a short form merger under 8 Del. Code Sec. 253, without the
necessity of approval of a majority of the Company's public
shareholders, (2) a "no-shop" provision, (3) a matching rights
provision entitling HP to make a counter-offer in instances where
an unsolicited competing bid is received, (4) a $61 million
termination fee payable by ArcSight to HP should it terminate the
merger. These provisions cumulatively discourage bidders from
making a competing bid, and therefore unfairly deprive the
Plaintiff and the other Class members of the true value of their
investment in the Company.
The Plaintiff is represented by:
Carmella P. Keener, Esq.
ROSENTHAL, MONHAIT & GODDESS, P.A.
919 N. Market Street, Suite 1401
Citizens Bank Center, P.O. Box 1070
Wilmington, DE 19801
Telephone: (302) 656-4433
E-mail: ckeener@rmgglaw.com
- and -
FARUQI & FARUZI, LLP
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: (212) 983-9330
AUSTRALIA: Activist Group Campaigns Against Bank Penalty Fees
-------------------------------------------------------------
Chris Zappone, writing for The Sydney Morning Herald, reports
activist group GetUp! will target penalty fees in a new campaign
aimed at recovering money consumers have lost to banks.
GetUp! will encourage its 375,000 members to contact the heads of
Australia's largest banks to warn them they will move their
business elsewhere if banks don't reduce penalty fees and refund
amounts paid.
The group is also prompting its members to join the class action
suit being funded by IMF to recover "illegal penalties charged by
banks".
"Initially we will focus on penalty fees which we do think need a
better resolution than what the banks have so far offered," GetUp!
national director Simon Sheikh said.
"There are a number of penalty fees on credit cards that some of
the big banks are still charging," he said.
He said the announcement was the first in a series in a long-
running bank reform campaigns.
Penalty fees, charged to customers for late payments and overdrawn
accounts, have become an issue of contention for the industry,
after years of criticism by consumer groups and customers.
GetUp! will send an email to members today allowing them to easily
contact their banks' chief executives and customer service
divisions to file complaints. The email will also encourage
members to join the IMF class action announced in May.
NAB had already stopped charging penalty fees on a vast number of
accounts, Mr. Sheikh said.
"Once another few banks jump, they'll see there's an opportunity
in not charging these fees," he said.
"So there is a small amount of choice out there already and we
would hope this campaign would encourage more choice."
Web sites including RateCity.com.au, Mozo.com.au, and
InfoChoice.com.au allow consumers to compares rates on loans,
terms deposits, insurance and credit cards offered by large and
small institutions.
Litigation funders IMF in conjunction with claims specialist
Financial Redress and law firm Maurice Blackburn, announced plans
in May to mount a class action to recover an estimated $5 billion
charged to customers over the past six years.
Although some banks moved to cut fees and offer more transparent
pricing, banks as a group charged $1.2 billion in penalty fees
last year, unchanged from 2008, Reserve Bank data shows. The fees
represent nearly 10% of total banking fees.
"All banks have substantially reduced or eliminated [penalty] fees
going forward from 2009 onwards," said BBY Limited banking analyst
George Gabriel.
GetUp! said some banks routinely charged $20 to $40 over limit
fees and $15 dishonor fees on a range of products.
"Should this [IMF] class action prevail and create a precedent, it
has broader implications for a range of different industries
including telecommunications, utilities, in-store credit cards,"
Mr. Gabriel said.
"The scope for IMF to leverage the call to action is quite broad,
and the providers of those products would effectively be put on
notice by IMF's class action."
GetUp! in August forced the Australian Electoral Commission to
allow voters to enroll online in future elections. The group also
won a High Court bid that extended the deadline for 100,000 voters
to participate in the federal election.
Acting chief executive of the Australian Bankers' Association Ian
Gilbert said some banks had reduced or abolished exception fees in
recent years as part of their competitive offerings to customers.
"Some banks also have accounts that are exception fee free.
Regarding the class action, as we have not seen any court
documents because the proceedings have not yet started, it is not
appropriate to comment in detail," Mr. Gilbert said.
However, based on the result of similar cases in Britain, the
association believes the banking fees are legitimate.
BEMIS CO: 7th Circuit Revives Class Suit Over Pact With Retirees
----------------------------------------------------------------
Josh Lintereur, writing for the Sheboygan Press, reports a federal
appeals court has revived a class action lawsuit alleging that
Neenah-based Bemis Co. breached a decades-old labor agreement with
retirees from its former Sheboygan subsidiary when it reduced the
retirees' medical benefits.
The lawsuit was filed two years ago by a group of retirees from
Hayssen Manufacturing -- formerly owned by Bemis and based in
Sheboygan -- after Bemis changed insurance providers, raised the
plan's deductibles and co-pay amounts, and later dropped its
prescription drug benefit, according to court records.
A district court judge later ruled in Bemis' favor, on the basis
that the company's agreement with retirees did not guarantee them
lifetime medical benefits.
But on Sept. 13, the 7th U.S. Circuit Court of Appeals disagreed,
with the three-judge panel concluding in an 18-page opinion the
"parties intended for the retirees to enjoy a lifetime entitlement
to medical benefits."
The ruling means the case will be sent back to district court to
consider what level of benefits retirees are entitled to and
whether changes to those benefits infringe on retirees' vested
rights and are in violation of federal law.
"We're very pleased with the decision, and hopefully it will get
us into a position to settle the matter," said the plaintiff's
attorney George Graf, of Milwaukee-based Gillick, Wicht, Gillick
and Graf.
Lawyers representing Bemis couldn't be reached for comment Friday.
The lawsuit was filed on behalf of 62 retirees and their spouses,
who've been receiving health care coverage from Bemis for 25 years
as a result of an agreement negotiated with the United Automobile
Aerospace and Agricultural Implement Workers Local 1423.
The deal was struck in 1985 after Bemis closed its Hayssen
packaging machinery manufacturing plant in Sheboygan and moved it
south following a labor strike. About 350 workers lost their jobs
at the time of the closing, according to Press archives.
Bemis sold Hayssen in 1997 but has continued to provide medical
benefits for the retirees covered under the agreement.
BURLINGTON COAT: Continues to Defend FLSA-Violations Complaint
--------------------------------------------------------------
Burlington Coat Factory Investments Holdings, Inc., continues to
defend an amended complaint alleging violation of the Fair Labor
Standards Act, according to the company's Sept. 14, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended July 31, 2010.
A putative class action lawsuit, entitled May Vang, and all others
similarly situated, v. Burlington Coat Factory Warehouse
Corporation, Case No. 09-CV-08061-CAS, was filed in the Superior
Court of the State of California on Sept. 17, 2009.
The named plaintiff purports to assert claims on behalf of all
current, former, and future employees in the United States and the
State of California for the relevant statutory time period.
Plaintiff filed an amended complaint on Nov. 16, 2009.
The amended complaint asserts claims for failure to pay all earned
hourly wages in violation of the Fair Labor Standards Act, failure
to pay all earned hourly wages in violation of the California
Labor Code, providing compensatory time off in lieu of overtime
pay, forfeiture of vacation pay, failure to provide meal and rest
periods, secret payment of lower wages than that required by
statute or contract, failure to provide accurate, written wage
statements, and unfair competition.
The complaint seeks certification as a class with respect to the
FLSA claims, certification of a class with respect to California
law claims, appointment of class counsel and class representative,
civil penalties, statutory penalties, declaratory relief,
injunctive relief, actual damages, liquidated damages,
restitution, pre-judgment interest, costs of suit and attorney's
fees.
Burlington Coat Factory Investments Holdings, Inc. --
http://www.burlingtoncoatfactory.com/-- is a nationally
recognized retailer of high-quality, branded apparel at everyday
low prices. The company currently serves its customers through
its 449 stores in 44 states and Puerto Rico.
CALAMOS INVESTMENTS: Faces ARPS-Related Suit
--------------------------------------------
Calamos Investments discloses that a law firm has filed a putative
class action lawsuit, purportedly on behalf of a class of common
shareholders of Calamos Convertible Opportunities and Income Fund,
according to Calamos Asset Management, Inc.'s Sept. 15, 2010, Form
8-K filing with the U.S. Securities and Exchange Commission.
The suit alleges breach of fiduciary duty, aiding and abetting
breach of fiduciary duty, and unjust enrichment in connection with
the redemption of auction rate preferred securities following the
collapse of auction markets in February 2008. The lawsuit was
filed in the Circuit Court of Cook County, Illinois.
The named defendants include John P. Calamos, Sr., Calamos Asset
Management, Calamos Advisors LLC, the Calamos Convertible
Opportunities and Income Fund and six trustees.
A similar lawsuit, filed on behalf of the same plaintiff against
the same defendants in the U.S. District Court for the Northern
District of Illinois on July 15, 2010, was voluntarily dismissed
by the plaintiff on Sept. 7, 2010.
Calamos Investments -- http://www.calamos.com/-- is a globally
diversified investment firm offering equity, fixed-income,
convertible and alternative investment strategies, among others.
The firm serves institutions and individuals around the world via
separately managed accounts and a family of open-end and closed-
end funds, providing a risk-managed approach to capital
appreciation and income-producing strategies.
CLEAR CHANNEL: Flood Victims to Pursue Legal Case
-------------------------------------------------
The Grand Rapids Press staff reports an attorney for dozens of
people with flood-damaged cars in the aftermath of the 2009 B-93
Birthday bash will press on with a legal case, despite a recent
setback at the state Court of Appeals.
Appeals court justices decided not to hear attorney John Tallman's
argument to give class-action status to the car owners. An Ionia
County judge earlier denied the status.
Coverage of the Judge's decision rejecting a class action
proceeding appeared in the Nov. 4, 2009, edition of the Class
Action Reporter. The Class Action Reporter covered facts
underlying this matter on Sept. 24, 2009.
ERICA BRACHFELD: Sued for Violation of Rosenthal Fair Debt Act
--------------------------------------------------------------
Judith Reimann and Michael DaRonco, individually and on behalf of
others similarly situated v. Erica L. Brachfeld, et al., Case No.
10-529702 (Calif. Super. Ct., Alameda Cty.), filed on August 5,
2010, accuses (1) Ms. Brachfeld and The Brachfeld Law Group of
sending dunning letters to alleged debtors on behalf of the
Midland Entities, without meaningful attorney involvement, and
filing and pursuing collection lawsuits to these alleged debtors
on behalf of the Midland Entities, without first reviewing
supporting documentation concerning the alleged debt being
collected; and (2) BLG and the Midland Entities of submitting
false affidavits and evidence in support of requests for default
judgment in their collection lawsuits, in violation of the
Rosenthal Fair Debt Collection Practices Act, Civil Code Section
1788 et seq., and California Business & Professions Code Sec.
17200 et seq.
Defendant Erica L. Brachfeld is an attorney debt collector, and is
the principal of defendant The Brachfeld Law Group, PC, which
specializes in the prosecution of collection lawsuits. The
Complaint alleges that Midland Funding, LLC, Midland Funding NCC-2
Corp., and Midland Credit Management, Inc. (collectively, the
"Midland Entities") are engaged in the business of purchasing
portfolios of defaulted debt who regularly cause collection
lawsuits to be brought against California consumers, claiming to
have purchased defaulted consumer credit card accounts on which
the named consumers allegedly owe money.
Plaintiffs assert that they suffered actual damage, including
monetary damage as a consequence of Defendants' unlawful conduct.
On September 16, 2010, Erica L. Brachfeld, et al., removed the
lawsuit to the Northern District of California, and the Clerk
assigned Case No. 10-cv-04156 to the proceeding.
The Plaintiffs are represented by:
Daniel E. Birkhaeuser, Esq.
BRAMSON, PLUTZIK, MAHLER & BIRKHAEUSER, LLP
2125 Oak Grove Road, Suite 120
Walnut Creek, CA 94598
Telephone: (925) 945-0200
E-mail: dbirkhaeuser@bramsonplutzik.com
- and -
Ian D. Chowdhury, Esq.
LAW OFFICE OF IAN CHOWDHURY
8853 Fullbright Avenue
Winnetka, CA 91306
Telephone: (818) 407-0510
E-mail: ian@ianchowdhury.com
- and -
Charles Delbaum, Esq.
Stuart Rossman, Esq.
THE NATIONAL CONSUMER LAW CENTER
7 Winthrop Square, 4th Floor
Boston, MA 02110
Telephone: (617) 542-8010
E-mail: cdelbaum@nclc.org
The Defendants are represented by:
Tomio B. Narita, Esq.
Arvin C. Lugay, Esq.
SIMMONDS & NARITA LLP
44 Montgomery Street, Suite 3010
San Francisco, CA 94104-4816
Telephone: (415) 283-1000
E-mail: tnarita@snllp.com
alugay@snllp.com
FEDEX CORP: FedEx Ground Continues to Defend "Tidd" Suit
--------------------------------------------------------
FedEx Ground Package System, Inc., one of FedEx Corporation's
business segments, continues to defend a class claim of failure to
pay regular wages due under the federal Fair Labor Standards Act
in the matter Tidd v. Adecco USA, Kelly Services and FedEx Ground,
according to the company's Sept. 17, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
Aug. 31, 2010.
In September 2008, a Massachusetts federal court conditionally
certified a class limited to individuals who were employed by two
temporary employment agencies and who worked as temporary pick-up-
and-delivery drivers for FedEx Ground in the New England region
within the past three years. Potential claimants must voluntarily
"opt in" to the lawsuit in order to be considered part of the
class.
In addition, in the same opinion, the court granted summary
judgment in favor of FedEx Ground with respect to the plaintiffs'
claims for unpaid overtime wages. The court has since granted
judgment in favor of the other two defendants with respect to the
overtime claims.
Accordingly, the conditionally certified class of plaintiffs is
now limited to a claim of failure to pay regular wages due under
the federal Fair Labor Standards Act.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through companies
that compete collectively, operate independently and manage
collaboratively, under the respected FedEx brand. These companies
are included in four segments: FedEx Express, Federal Express
Corp., is an express transportation company, offering time-certain
delivery within 1 to 3 business days; FedEx Ground, FedEx Ground
Package System, Inc., is a provider of small-package ground
delivery service; FedEx Freight, FedEx Freight Corp., is a
provider of less-than-truckload (LTL) freight services through its
FedEx Freight business (regional next-day and second-day and
interregional LTL freight services) and its FedEx National LTL
business (long-haul LTL freight services), and FedEx Services,
FedEx Corporate Services, Inc. provides sales, marketing and
information technology support, as well as customer service
support through FedEx Customer Information Services, Inc.
FEDEX CORP: Express Continues to Defend "Bibo" Wage & Hour Suit
---------------------------------------------------------------
A business segment of FedEx Corporation, Federal Express
Corporation continues to defend the wage-and-hour case captioned
Bibo v. FedEx Express, according to the company's Sept. 17, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Aug. 31, 2010.
In April 2009, a California federal court granted class
certification, certifying several subclasses of FedEx Express
couriers in California from April 14, 2006 (the date of the
settlement of the Foster class action) to the present.
The plaintiffs allege that FedEx Express violated California wage-
and-hour laws after the date of the Foster settlement. In
particular, the plaintiffs allege, among other things, that they
were forced to work "off the clock" and were not provided with
required meal breaks or split-shift premiums.
The company asked the U.S. Court of Appeals for the Ninth Circuit
to accept a discretionary appeal of the class certification order,
but the court refused to accept it as of July 15, 2010.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through companies
that compete collectively, operate independently and manage
collaboratively, under the respected FedEx brand. These companies
are included in four segments: FedEx Express, Federal Express
Corp., is an express transportation company, offering time-certain
delivery within 1 to 3 business days; FedEx Ground, FedEx Ground
Package System, Inc., is a provider of small-package ground
delivery service; FedEx Freight, FedEx Freight Corp., is a
provider of less-than-truckload (LTL) freight services through its
FedEx Freight business (regional next-day and second-day and
interregional LTL freight services) and its FedEx National LTL
business (long-haul LTL freight services), and FedEx Services,
FedEx Corporate Services, Inc. provides sales, marketing and
information technology support, as well as customer service
support through FedEx Customer Information Services, Inc.
FEDEX CORP: FedEx Freight Defends "Taylor" Wage-and-Hour Lawsuit
----------------------------------------------------------------
One of FedEx Corporation's subsidiaries, FedEx Freight
Corporation, defends a purported class action suit over alleged
violation of California wage and hour laws captioned Taylor v.
FedEx Freight.
In September 2009, in the wage-and-hour case, a California state
court granted class certification, certifying a class of all
current and former drivers employed by FedEx Freight in California
who performed line haul services since June 2003.
The plaintiffs allege, among other things, that they were forced
to work "off the clock" and were not provided with required rest
or meal breaks.
In May 2010, the company filed a notice to remove this matter to
federal court in California.
No updates were repored in the company's Sept. 17, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended Aug. 31, 2010.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through companies
that compete collectively, operate independently and manage
collaboratively, under the respected FedEx brand. These companies
are included in four segments: FedEx Express, Federal Express
Corp., is an express transportation company, offering time-certain
delivery within 1 to 3 business days; FedEx Ground, FedEx Ground
Package System, Inc., is a provider of small-package ground
delivery service; FedEx Freight, FedEx Freight Corp., is a
provider of less-than-truckload (LTL) freight services through its
FedEx Freight business (regional next-day and second-day and
interregional LTL freight services) and its FedEx National LTL
business (long-haul LTL freight services), and FedEx Services,
FedEx Corporate Services, Inc. provides sales, marketing and
information technology support, as well as customer service
support through FedEx Customer Information Services, Inc.
FEDEX CORP: Plaintiffs' Appeal in "Anfinson" Suit Still Pending
---------------------------------------------------------------
The appeal of the plaintiffs on the verdict in favor of one of
FedEx Corporation's business segments, FedEx Ground Package
System, Inc., in a contractor-model lawsuit captioned Anfinson v.
FedEx Ground, remains pending.
In January 2008, the Anfinson suit was certified as a class action
by a Washington state court. The lawsuit is not part of the
multidistrict litigation against FedEx Ground.
The plaintiffs in Anfinson represent a class of FedEx Ground
single-route, pickup-and-delivery owner-operators in Washington
from Dec. 21, 2001 through Dec. 31, 2005, and allege that the
class members should be reimbursed as employees for their uniform
expenses and should receive overtime pay.
In March 2009, a jury trial in the Anfinson case was held, and the
jury returned a verdict in favor of FedEx Ground, finding that all
320 class members were independent contractors, not employees.
The plaintiffs have appealed the verdict.
No further updates were reported in the company's Sept. 17, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended Aug. 31, 2010.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-package
ground delivery service; FedEx Freight, FedEx Freight Corp., is a
provider of less-than-truckload (LTL) freight services through its
FedEx Freight business (regional next-day and second-day and
interregional LTL freight services) and its FedEx National LTL
business (long-haul LTL freight services), and FedEx Services,
FedEx Corporate Services, Inc. provides sales, marketing and
information technology support, as well as customer service
support through FedEx Customer Information Services, Inc.
FEDEX CORP: Appeal Class Certification Ruling in "Rascon" Suit
--------------------------------------------------------------
FedEx Corp. is appealing the class certification ruling in the
matter Rascon v. FedEx Ground, according to the company's
Sept. 17, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended Aug. 31, 2010.
In August 2010, a contractor-model lawsuit that is not part of the
multidistrict litigation, Rascon v. FedEx Ground, was certified as
a class action by a Colorado state court.
The plaintiff in Rascon represents a class of single-route,
pickup-and-delivery owner-operators in Colorado who drove vehicles
weighing less than 10,001 pounds at any time from
Aug. 27, 2005 through the present.
The lawsuit seeks unpaid overtime compensation, and related
penalties and attorneys' fees and costs, under Colorado law.
The company has filed an application for appeal challenging this
class certification decision.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-package
ground delivery service; FedEx Freight, FedEx Freight Corp., is a
provider of less-than-truckload (LTL) freight services through its
FedEx Freight business (regional next-day and second-day and
interregional LTL freight services) and its FedEx National LTL
business (long-haul LTL freight services), and FedEx Services,
FedEx Corporate Services, Inc. provides sales, marketing and
information technology support, as well as customer service
support through FedEx Customer Information Services, Inc.
FEDEX CORP: FedEx Ground's Summary Judgment Motion Granted
----------------------------------------------------------
FedEx Ground Package System, Inc.'s motions for summary judgment
on state law claims in a Kansas case has been granted by the
court, according to FedEx Corporation's Sept. 17, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended Aug. 31, 2010.
FedEx Ground is involved in numerous class-action lawsuits
(including 30 that are certified as class actions), individual
lawsuits and state tax and other administrative proceedings that
claim that the company's owner-operators should be treated as
employees, rather than independent contractors.
Most of the class-action lawsuits have been consolidated for
administration of the pre-trial proceedings by a single federal
court, the U.S. District Court for the Northern District of
Indiana. With the exception of more recently filed cases that have
been or will be transferred to the multidistrict litigation,
discovery on class certification and classification issues is now
complete. Thus far, the multidistrict litigation court has granted
class certification in 28 cases and denied it in 14 cases, and has
issued two rulings on the classification issue (i.e., independent
contractor vs. employee):
-- In May 2010, in an Illinois case in which class
certification had been denied, the court granted the
three named plaintiffs' motion for summary judgment on
their claim under the Illinois wage law, holding that
the three plaintiffs were employees under that law.
There have not yet been any rulings on the plaintiffs'
motion for summary judgment on the remaining claims in
that case. The classification issue is state-law
specific and varies from state to state and from law to
law within each state. Accordingly, the court's ruling
in the Illinois case is not binding authority for any of
the remaining claims in that case or for any of the
other cases pending in the multidistrict litigation.
-- In August 2010, in a Kansas case in which class
certification had been granted, the court granted FedEx
Ground's motion for summary judgment on the state law
claims, holding that the plaintiffs were independent
contractors as a matter of law (the court had previously
dismissed without prejudice the nationwide class claim
under the Employee Retirement Income Security Act of
1974 based on the plaintiff's failure to exhaust
administrative remedies). In the same order, the court
asked the parties to submit briefs in all 27 of the
other multidistrict litigation cases that are certified
as class actions (and in which motions for summary
judgment on the classification issue are still pending),
explaining how the court's reasoning in the Kansas case
applied to those cases.
FedEx Corp. -- http://www.fedex.com/-- provides a portfolio of
transportation, e-commerce and business services through
companies that compete collectively, operate independently and
manage collaboratively, under the respected FedEx brand. These
companies are included in four segments: FedEx Express, Federal
Express Corp., is an express transportation company, offering
time-certain delivery within 1 to 3 business days; FedEx Ground,
FedEx Ground Package System, Inc., is a provider of small-package
ground delivery service; FedEx Freight, FedEx Freight Corp., is a
provider of less-than-truckload (LTL) freight services through its
FedEx Freight business (regional next-day and second-day and
interregional LTL freight services) and its FedEx National LTL
business (long-haul LTL freight services), and FedEx Services,
FedEx Corporate Services, Inc. provides sales, marketing and
information technology support, as well as customer service
support through FedEx Customer Information Services, Inc.
FORTUNE HI-TECH: Lawyer Believes Suit Will Be Certified Soon
------------------------------------------------------------
Brenda Craig, writing for LawyersandSettlements.com, reports a
giant pyramid scheme that has been masquerading as a marketing
company appears to be starting to crumble. The only "fortune" the
company created went mostly to the company's father figure, Paul
Orbison, and a short list of his confederates.
Although Fortune Hi-Tech Marketing purports to sell everything
from hair care products to cell phones, the real sales job was
done on potential recruits to the organization.
"The law against pyramid schemes is clear," says R. Kenyon Meyer,
an attorney who works with the well-known firm of Dinsmore and
Shohl in Louisville, Kentucky. Mr. Meyer represents four former
Fortune sales representatives in a national class action alleging
they were victims of Mr. Orbison's operation.
According to the suit, sales representatives were charged $299 for
the privilege of joining the Fortune team. Then they were
pressured into buying a never-ending stream of services and
equipment in order to do the job, says Mr. Meyer, who has been
researching the company for several months now.
"Fortune requires sales representatives to get 'frequent customer
points.' Those points are obtained not by selling something, but
by signing up for something in order to do your job as a
representative!"
Just because Fortune maintained a list of products for sale
doesn't mean it isn't a pyramid scheme, warns Mr. Meyer. "Every
pyramid scheme has some product that it purports to promote. The
focus on recruitment overrides the focus on the sale of a product
to the ultimate consumer meaning somebody not involved in the
pyramid."
Fortune Hi-Tech Marketing was recently routed in a Montana state
class action where regulators successfully litigated against the
company for operating a pyramid scheme.
Mr. Orbison, who lives and operates Fortune from Lexington,
Kentucky, tells recruits he was able to retire after he made a
million dollars month with another multi-level marketing company.
He started Fortune in order "to give back" and allow others an
opportunity to get rich.
Mr. Meyer's clients, however, would prefer that Fortune simply
give back the money they were duped into pouring into a pyramid
scheme. According to the research done by Dinsmore and Shohl, the
majority of sales reps actually made less than $90 dollars a month
before expenses.
There may be thousands of potential class members across the US
and even in Canada and Britain, but Fortune is unclear about how
many sales representatives it actually has on the books. "They
have made some vague representations from time to time, like we
have had tens of thousands of representatives join in the last
couple of months," says Mr. Meyer. "But there have been no
official numbers released."
The class has yet to be certified. Meyer believes it will happen
soon. "I am really looking forward to the discovery phase," he
says.
FUWEI FILMS: Reaches Final Settlement Agreement in Securities Suit
------------------------------------------------------------------
Fuwei Films (Holdings) Co., Ltd., a manufacturer and distributor
of high-quality BOPET plastic film located in China, disclosed
Monday that it has entered into a final settlement agreement with
the plaintiffs in a putative securities class action that has been
pending in federal district court in New York.
As previously disclosed, the parties reached a settlement in
principle of the Action on June 24, 2010. In the Action,
plaintiffs assert claims against Fuwei Films, certain of its
present and former officers, directors, and shareholders, and the
underwriters for Fuwei Films' December 19, 2006 initial public
offering, alleging that the Registration Statement and Prospectus
contained materially false and misleading information in violation
of federal securities laws.
Pursuant to the settlement agreement and subject to the Court's
approval, Plaintiffs have agreed to accept US$2.15 million in full
and final settlement of all claims they have or may have against
the Company, certain of its present and former officers,
directors, and shareholders, and the underwriters. Fuwei Films has
agreed to contribute US$1 million towards the settlement. The
signed settlement agreement has been submitted to the Court for
approval.
The Company's management continues to believe that plaintiffs'
allegations are without merit. However, in recognition of the
attendant risks and costs of continued litigation, and the
benefits of resolving the same, the Board of Directors has
unanimously consented to settle this case. As of June 30, 2010,
the Company accrued US$1 million liability in connection with this
litigation excluding defense costs.
Fuwei Films -- http://www.fuweiholdings.com/-- conducts its
business through its wholly owned subsidiary Shandong Fuwei Films
Co., Ltd. Shandong Fuwei develops, manufactures and distributes
high-quality plastic films using the biaxial oriented stretch
technique, otherwise known as BOPET film (biaxially oriented
polyethylene terephthalate). Fuwei's BOPET film is widely used to
package food, medicine, cosmetics, tobacco and alcohol, as well as
in the imaging, electronics, and magnetic products industries.
GLOBAL SHIP: 11th Circuit Dismisses Appeal on Suit Settlement
-------------------------------------------------------------
The U.S. 11th Circuit Court of Appeals has dismissed an appeal on
the final approval of the settlement resolving a securities class
action where Global Ship Lease Inc.'s Chief Executive Officer, Ian
J. Webber, is a defendant, according to the company's Sept. 16,
2010, Form 20-F/A filing with the U.S. Securities and Exchange
Commission for the fiscal year ended Dec. 31, 2009.
On March 21, 2008, Global Ship Lease entered into a merger
agreement pursuant to which Marathon Acquisition Corp. and Global
Ship Lease, Inc., a subsidiary of CMA CGM, merged with and into
GSL Holdings, Inc., Marathon's newly-formed, wholly owned Marshall
Islands subsidiary, with GSL Holdings (now renamed Global Ship
Lease, Inc.) continuing as the surviving company incorporated in
the Republic of the Marshall Islands. The Merger was consummated
on Aug. 14, 2008.
Ian J. Webber. Upon the completion of the Merger, Mr. Webber
became the Chief Executive Officer of Global Ship Lease. From 1979
to 1996, Mr. Webber worked for PriceWaterhouse, the last five
years of which he was a partner. From 1996 to 2006, Mr. Webber
served as the Chief Financial Officer and a director of CP Ships
Limited, a subsidiary of Canadian Pacific Limited until 2001 and
thereafter a public company listed on the New York and Toronto
stock exchanges until its acquisition by TUI A.G. in 2005. Mr.
Webber is a graduate of Cambridge University.
Mr. Webber was named, along with his former employer CP Ships
Limited and other officers of that company, as a defendant in a
securities class action case before the U.S. District Court for
the Middle District of Florida.
The consolidated amended class action complaint alleged violations
of Section 10(b) and Rule 10b-5 of the Exchange Act against all
defendants and Section 20(a) of the Exchange Act against the
individual defendants. The parties have reached an agreement to
settle this class action proceeding in its entirety.
Under the terms of the settlement, Mr. Webber denies all
wrongdoing, is not making any payment, and will be fully released
from any liability in this matter. The settlement was given final
approval by the Court on Oct. 21, 2008.
One objector appealed the Court's final approval of the settlement
to the 11th Circuit Court of Appeals. On Aug. 13, 2009, the 11th
Circuit dismissed the objector's appeal. All time for further
appeal has expired and a joint motion was filed on Nov. 30, 2009
to dismiss a separate appeal from the district court's dismissal
of the complaint that had been stayed pending final approval of
the settlement.
The 11th Circuit granted the parties' joint motion to dismiss the
appeal with prejudice on Dec. 16, 2009.
Global Ship Lease Inc. -- http://www.globalshiplease.com/-- is a
containership charter owner. Incorporated in the Marshall
Islands, Global Ship Lease commenced operations in December 2007
with a business of owning and chartering out containerships under
long-term, fixed rate charters to world class container liner
companies.
GLOBAL SHIP: Settlement Agreement in Canada Suits vs. CEO Okayed
----------------------------------------------------------------
A settlement agreement resolving securities class actions filed in
Canada were Global Ship Lease Inc.'s Chief Executive Officer, Ian
J. Webber, is a defendant, has received final approval, according
to the company's Sept. 16, 2010, Form 20-F/A filing with the U.S.
Securities and Exchange Commission for the fiscal year ended Dec.
31, 2009.
Mr. Webber was named, along with CP Ships Limited and several of
its officers and directors, as a defendant in three purported
securities class actions in Canada.
The Canadian Actions allege similar claims to those raised in the
United States securities class action.
The parties have reached an agreement to settle the Canadian
Actions in their entirety.
Under the terms of the settlement, Mr. Webber denies all
wrongdoing, is not making any payment, and is fully released from
any liability in this matter.
The settlement of the Canadian Actions received final approval by
the Quebec Superior Court on Jan. 18, 2010 and by the Ontario
Superior Court of Justice on Feb. 3, 2010.
Global Ship Lease Inc. -- http://www.globalshiplease.com/-- is a
containership charter owner. Incorporated in the Marshall
Islands, Global Ship Lease commenced operations in December 2007
with a business of owning and chartering out containerships under
long-term, fixed rate charters to world class container liner
companies.
GREENE TURTLE: Judge Certifies Class Suit Over Wage Violations
--------------------------------------------------------------
Lorraine Mirabella, writing for The Baltimore Sun, reports a
lawsuit against the corporate owner of the Greene Turtle sports
bar restaurants, alleging the Edgewater-based chain failed to pay
overtime and minimum wages, is moving forward as a class action
that could include hundreds of current and former employees.
The lawsuit, filed by two former servers at the chain's location
at Baltimore-Washington International Thurgood Marshall Airport,
seeks unpaid wages and overtime for as many as 1,000 current and
former employees in the past three years, according to Howard B.
Hoffman, an attorney representing the plaintiffs.
Mr. Hoffman estimated that an employee who worked 40 hours a week
for six months would be owed about $7,500, including higher
damages that courts can award for federal labor law violations.
Judge Catherine C. Blake of U.S. District Court in Baltimore
granted a conditional class action certification this month and
ordered that notice be sent to employees who worked at Greene
Turtle restaurants in Maryland, Delaware and Washington that are
either wholly owned subsidiaries of the franchising corporation or
related corporations.
Greene Turtle has 25 locations, but some are run separately by
franchisees.
Michael Sanford, the company's president and chief executive,
could not be reached for comment. In court documents, the Greene
Turtle Franchising Corp. and Sanford deny violating the Fair Labor
Standards Act and contend they don't owe plaintiffs "anything."
"Assuming the FLSA applies, the plaintiffs were paid everything
they were entitled to during the course of their employment," the
defendants said in a court filing.
The lawsuit alleges that The Greene Turtle Franchising Corp. and
its payroll arm, TGT Consulting LLC, paid employees who received
tips less than minimum wage by subtracting a "tip credit" from the
minimum wage. While that practice is allowed under the Fair Labor
Standards Act, Greene Turtle violated the law by failing to inform
employees it was doing so, according to the lawsuit.
The complaint also accuses the restaurant chain owner of
improperly calculating the overtime rate for servers and
bartenders, which could amount to hundreds of thousands of dollars
in unpaid overtime.
"Employees at all the corporate owned Greene Turtles were not
informed their tips would be credited against the minimum wage,"
Hoffman said. "The law has been in effect since the early 1970s,
and it's very well established. Most if not all the major
restaurant chains understand this, but the Greene Turtle
apparently doesn't."
The lawsuit's plaintiffs, Craig Dorsey of Gambrills and Simone D.
Nathaniel of Baltimore, said the chain paid all tipped employees
$3.27 per non-overtime hour, or the federal minimum wage of $7.25
an hour minus the tip credit. The restaurant paid $4.92 per
overtime hour, according to the lawsuit.
HEALTH GRADES: Modifies Merger Agreement to Resolve Two Suits
-------------------------------------------------------------
Health Grades, Inc., made modifications to its merger agreement
with Mountain Acquisition Corp. and Mountain Merger Sub Corp.,
both affiliates of Vestar Capital Partners V, L.P., pursuant to a
Memorandum of Understanding to settle two putative class action
complaints pending in the Delaware Court of Chancery, according to
the company's Sept. 16, 2010, Form 8-K filing with the U.S.
Securities and Exchange Commission.
Health Grades extended the offer period for the previously
announced tender offer for all of the outstanding shares of common
stock of HealthGrades for $8.20 per share in cash, without
interest and less any applicable withholding taxes, until 9:00 AM,
New York City time, on Thursday, Oct. 7, 2010. The company also
disclosed certain modifications to its merger agreement with
Mountain Acquisition Corp. and Mountain Merger Sub Corp., both
affiliates of Vestar Capital Partners V, L.P., including those
that will provide additional time for the submission and
consideration of alternative acquisition proposals.
On Aug. 10, 2010, Mountain Acquisition Corp. and Mountain Merger
Sub Corp. commenced a tender offer for all outstanding shares of
common stock of HealthGrades at a price of $8.20 per share in
cash, without interest and less any applicable withholding taxes.
The tender offer was previously scheduled to expire at 9:00 AM,
New York City time, on Thursday, September 16, 2010.
The depositary for the tender offer has advised that as of 5:00
PM, New York City time, on Wednesday, Sept. 15, 2010,
approximately 26,246,711 HealthGrades shares had been validly
tendered and not withdrawn (excluding shares tendered by notices
of guaranteed delivery). These shares, in addition to the
restricted and option shares (net of withholding for taxes and
costs of exercise) that are committed to be sold to Mountain
Merger Sub Corp. pursuant to the previously disclosed support
agreements with certain executives of HealthGrades, represent
approximately 85.30% of the total outstanding shares of
HealthGrades on a fully diluted basis, excluding certain shares to
be issued pursuant to a non-competition agreement with one of the
executives. Including the shares to be issued pursuant to such
non-competition agreement, such tendered and committed shares
represent approximately 90.19% of the total outstanding shares of
HealthGrades on a fully-diluted basis, such that Mountain Merger
Sub Corp. would be permitted to consummate a "short-form" merger
under Delaware law. Excluding shares tendered pursuant to the
support agreements, the tendered shares represent approximately
71.42% of the total outstanding shares on a fully-diluted basis,
excluding certain shares to be issued pursuant to the non-
competition agreement, and approximately 87.38% of all shares not
subject to support agreements.
The modifications disclosed on Sept. 16, 2010, have been made
pursuant to a Memorandum of Understanding entered into on behalf
of HealthGrades, Mountain Acquisition Corp., Mountain Merger Sub
Corp., Mountain Acquisition Holdings, LLC and Vestar Capital
Partners V, L.P., which outlines the terms of the parties'
agreement in principle to settle the actions pending in the
Delaware Court of Chancery captioned Peter P. Weigard v. Hicks,
C.A. et al., No. 5732-VCS, and Tove Forgo v. Health Grades, Inc.,
et al., C.A. No. 5716-VCS. The terms of the proposed settlement
are subject to approval by the Delaware Court of Chancery.
Pursuant to the modified merger and support agreements:
-- A committee of the HealthGrades Board of Directors
comprised of the four independent directors has been
authorized to review, consider, recommend, negotiate and
approve any Acquisition Proposals received during the
pendency of the tender offer. In this regard,
HealthGrades' Chairman and Chief Executive Officer will
not participate in any consideration, deliberation or
action by the Independent Committee or the Board of
Directors with respect to any Acquisition Proposal that
may be made.
-- The initial expiration of the tender offer has been
extended to 9:00 AM, New York City time, on Oct. 7,
2010. The Independent Committee may cause this date to
be extended for 10 business days if an Acquisition
Proposal (as defined below, but substituting 50.1% for
15%) that the company Board or the Independent Committee
determines in good faith constitutes, or is reasonably
likely to result in, a Superior Proposal (as defined
below) is received before the initial expiration of the
tender offer.
-- The "minimum condition" of the Vestar offer has been
modified to include a requirement that a majority of all
outstanding shares not subject to support agreements be
validly tendered and not withdrawn.
-- The fee payable by HealthGrades to a Vestar affiliate in
the event the merger agreement is terminated under
certain circumstances has been reduced from $9,550,000
to $7,346,000.
-- The period for notice to Vestar before HealthGrades may
enter into a Superior Proposal has been reduced from 5
business days to 3 business days.
-- Executive officers of HealthGrades who entered into
support agreements with respect to the pending tender
offer have agreed to enter into comparable agreements
with respect to any transaction that the Independent
Committee determines is a Superior Proposal and with
respect to which HealthGrades enters into a definitive
agreement after terminating the pending merger
agreement.
HealthGrades will provide information to, and engage and
participate in good faith discussions and negotiations with, any
third party who makes a bona fide written Acquisition Proposal at
any time prior to the expiration of the Vestar affiliates' tender
offer if:
-- The third party enters into a confidentiality agreement
substantially in the form attached to the merger
agreement (which was filed by HealthGrades with the
Securities and Exchange Commission as Exhibit 2.1 to a
Current Report on Form 8-K filed on July 28, 2010);
-- The Independent Committee determines in good faith,
after consultation with outside legal counsel, that
failure to provide information, and engage or
participate in discussions or negotiations, would
violate its fiduciary duties; and
-- The Independent Committee determines in good faith,
based on the information then available and after
consultation with its independent financial advisor and
outside legal counsel, that the Acquisition Proposal
constitutes, or is reasonably likely to result in, a
Superior Proposal.
An "Acquisition Proposal" is defined to be any inquiry, proposal
or offer relating to any transaction that would result in a third
party beneficially owning more than 15% of HealthGrades' equity
interests or assets representing more than 15% of HealthGrades'
net revenues, net income, cash flow, or assets. A "Superior
Proposal" is defined to be a bona fide Acquisition Proposal (with
each reference to "15%" replaced with "50.1%") not resulting from
a breach by HealthGrades of the merger agreement, which the
Independent Committee determines in good faith (1) is reasonably
likely to be consummated in accordance with its terms and (2)
would result in a transaction that is more favorable to the
HealthGrades stockholders from a financial point of view than the
transactions contemplated by the Vestar merger agreement.
If the Independent Committee concludes in good faith that it has
received a Superior Proposal, then it may amend or withdraw its
recommendation of the Vestar merger agreement and/or may authorize
HealthGrades to terminate the Vestar merger agreement, pay a
$7,346,000 termination fee to Vestar, and enter into a definitive
agreement with respect to the Superior Proposal, so long as
HealthGrades first:
-- Provides 3 business days written notice to Vestar of the
terms and conditions of the Superior Proposal; and
-- Negotiates with Vestar during such 3-business day
period to provide Vestar with the opportunity to propose
adjustments to the Vestar merger agreement such that the
third party's proposal would no longer constitute a
Superior Proposal.
Citigroup Global Markets Inc. is serving as financial advisor to
HealthGrades. Shearman & Sterling LLP, Faegre & Benson LLP and
Morris, Nichols, Arsht & Tunnell LLP are serving as legal counsel
to HealthGrades.
HealthGrades has directed its advisors to be available to receive
inquiries from any other parties interested in a possible
acquisition of HealthGrades and, as appropriate, to provide
information and, in conjunction with the Independent Committee,
enter into discussions and negotiations with such parties in
connection with any such indication of interest.
HealthGrades -- http://www.healthgrades.com/-- is the leading
independent healthcare ratings organization, providing quality
ratings, profiles and cost information on the nation's hospitals,
physicians, nursing homes and prescription drugs. Millions of
patients and many of the nation's largest employers, health plans
and hospitals rely on HealthGrades' quality ratings, advisory
services and decision-support resources. The HealthGrades network
of websites, including HealthGrades.com and WrongDiagnosis.com, is
a top-ten health property according to ComScore and is the
Internet's leading destination for patients choosing providers.
HICKORY SPRINGS: Sued Over Alleged Polyurethane Foam Price-Fixing
-----------------------------------------------------------------
Courthouse News Service reports that several companies fixed
prices for polyurethane foam, the Stoud Group claims in a class
action in Statesville, N.C., Federal Court.
A copy of the Complaint in The Stroud Group, Inc. v. Hickory
Springs Manufacturing Company, et al., Case No. 10-cv-00139
(W.D.N.C.), is available at:
http://www.courthousenews.com/2010/09/20/Foam%20Price-Fix.pdf
The Plaintiff is represented by:
Larry S. McDevitt, Esq.
David M. Wilkerson, Esq.
THE VAN WINKLE LAW FIRM
11 North Market St.
Asheville, NC 28801
Telephone: 828-258-2991
E-mail: lmcdevitt@vwlawfirm.com
- and -
Steven J. Greenfogel, Esq.
Daniel B. Allanoff, Esq.
MEREDITH COHEN GREENFOGEL & SKIRNICK, P.C.
1521 Locust St., 8th Floor
Philadelphia, PA 19102
Telephone: 215-564-5182
E-mail: sgreenfogel@mcgslaw.com
dallanoff@mcgslaw.com
- and -
Joseph R. Saveri, Esq.
Eric B. Fastiff, Esq.
LIEFF CABRASER HEIMANN & & BERNSTEIN, LLP
275 Battery St., 29th Floor
San Francisco, CA 94111
Telephone: 415-956-1000
E-mail: jsaveri@lchb.com
efastiff@lchb.com
- and -
Kenneth S. Byrd, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
One Nashville Place
150 Fourth Ave. North, Suite 1650
Nashville, TN 37219
Telephone: 615-313-9000
E-mail: kbyrd@lchb.com
ICELAND: Coalition Heralds Class Action Against Banks
-----------------------------------------------------
Iceland Review Online reports the leader of the Debtors' Coalition
Gudmundur Andri Skulason has heralded a class action against the
banks. According to him, there was a will to reach an agreement
with the crediting institutions but after the Supreme Court's
ruling, it is too late now. Ruv.is reports this.
The rights of the debtors have to be sought with full force, he
states, and therefore the coalition will herald a class action in
every case they come across.
Preparations are already underway.
Mr. Skulason announced his intentions in interview at R s 2, a
radio station operated by the Icelandic National Broadcasting
Service.
He doubts that the public will be better off with the new
legislation proposed by the Minister of Economic Affairs.
LAFAYETTE INSURANCE: Court Decision on Katrina Class Suits Pending
------------------------------------------------------------------
Steve Korris, writing for The Louisiana Record, reports fewer than
three hundred suits against Lafayette Insurance over Hurricane
Katrina payments will turn into a class action with thousands of
potential claims if the Louisiana Supreme Court approves.
Robert Murphy of New Orleans wants the Justices to affirm St.
Bernard Parish District Judge Manuel Fernandez, who certified a
class of homeowners in eight parishes.
"In federal court the last several years class actions have not
been looked on very well, but in Louisiana things have been
different," Mr. Murphy said at oral argument on Sept. 8.
He said Louisiana's legislature and courts recognize the benefits
of class actions.
"The state has been open minded about allowing class actions to
proceed in a proper manner," he said.
Fifth Circuit appeals judges in Gretna upheld Judge Fernandez last
year.
Mr. Murphy alleges Lafayette improperly adjusted claims in St.
Bernard, Orleans, Jefferson, Plaquemines, St. Tammany, St.
Charles, Tangipahoa and Terrebonne parishes.
He doesn't represent all Lafayette policyholders with Katrina
claims, but he will if the Justices approve class action.
The National Association of Mutual Casualty Insurers has argued as
friend of the court that Fernandez wrested control of ongoing
suits from absent class members.
"Unless those individual class members affirmatively opt out of
the class, they will be unable to fully litigate their cases to
their respective strengths," Adrianne Baumgartner of New Orleans
wrote for the association.
"Rather, their cases will, at least in part, be centrally managed
by other attorneys who have significant financial incentives to
settle this class action on terms favorable to themselves," she
wrote.
"This judicially endorsed power grab serves class counsel well,
but it is detrimental to the many class members whose cases
currently await adjudication," she wrote.
At oral argument, Lafayette lawyer Howard Kaplan of Metairie told
the Justices every Katrina adjusting class action in federal court
was dismissed.
He said individual issues would predominate over class issues.
Justice John Weimer asked if that would be true if no one received
an appropriate level of payment.
"That is not the factual testimony," Mr. Kaplan said.
Justice Bernette Johnson asked if there were blanket denials.
Mr. Kaplan said plaintiffs alleged blanket denial of claims for
additional living expenses, but he said there are payments in the
record in all eight parishes.
Justice Jeannette Knoll asked if adjusters used pre-Katrina
prices.
Mr. Kaplan said every adjustment was based on facts known at the
time.
Justice Knoll asked why use of pre-Katrina prices wasn't a narrow
issue, and she said failure to include overhead was pretty well
defined.
"You have to determine if payment was fair as a whole," Mr. Kaplan
said.
He said there would be millions of line items to look at.
Justice Greg Guidry asked if he conceded that Lafayette denied
whole categories.
Mr. Kaplan said no, and he argued that Murphy's experts hadn't
done any pricing in 25 years, didn't see properties, and didn't
talk to homeowners.
Mr. Murphy said his expert looked at 36 claims and found pre-
Katrina pricing in every one.
He said Lafayette's expert couldn't tell the judge that it paid a
penny on civil authority claims, which arise when government
orders homeowners to leave their homes.
Justice Weimer said they paid $157,000 in St. Bernard.
Mr. Murphy said, "They can't allocate that."
Justice Guidry said, "That's different from saying nothing was
paid."
Murphy said evidence at trial would show nothing was paid.
Justice Knoll asked if it was possible to determine it from the
records.
Mr. Murphy said, "We think they can."
He said a forensics person would access their files.
"It's embedded in the system," Mr. Murphy said.
He said the judge found his experts satisfactory.
Mr. Murphy waved toward his opponents and said, "They want this to
be federal court."
"In Louisiana state court, Louisiana rules apply," he said.
He said without a class action, 7,000 homeowners wouldn't be able
to pursue claims.
"They breached their contract to each one of these people," he
said.
Justice Weimer said 3% of the 7,000 ended in litigation.
"Not all seven thousand would have claims," he said.
Justice Guidry asked how many suits remained open, and Mr. Murphy
said he didn't know.
Justice Guidry said the record showed fewer than 300.
Mr. Murphy said those who couldn't otherwise proceed would pursue
claims.
"A significant number of the 7,000 will step forward prior to
trial," he said.
The Justices took it under advisement.
LINCOLN EDUCATIONAL: Bernstein Liebhard Files Class Suit
--------------------------------------------------------
Bernstein Liebhard LLP disclosed Monday that it filed a class
action in the United States District Court for the District of New
Jersey on behalf of purchasers of Lincoln Educational Services
Corporation common stock during the expanded period of March 13,
2009 and August 5, 2010, inclusive.
Lincoln and certain of its officers are charged with making a
series of materially false and misleading statements related to
the Company's business and operations in violation of the
Securities Exchange Act of 1934.
Throughout the Class Period, defendants issued a series of
materially false and misleading statements regarding Lincoln's
compliance with governmental regulations, and the growth and
foreseeable profitability of Lincoln.
Defendants' Class Period statements were materially false and
misleading when made, and were known by defendants to be false or
were recklessly disregarded as such thereby, for the following
reasons, among others: Lincoln was not compliant with government
regulations under Title IV; Defendants had propped up the
Company's results by fraudulently inducing students to enroll in
Lincoln's scholastic and educational programs and engaged in other
manipulative recruiting tactics which defendants knew, or
recklessly disregarded, could not be maintained; Defendants
materially overstated the Company's growth prospects by failing to
properly disclose that defendants had engaged in illicit and
improper recruiting activities, which also had the effect of
artificially inflating the Company's reported results and future
growth prospects; and Lincoln did not have adequate systems of
internal operational or financial controls, such that Lincoln's
reported operational statements and foreseeable growth prospects
were true, accurate, or reliable.
During the Class Period, Defendant and Lincoln Executive Chairman
James Carney sold almost $6 million in Lincoln stock while in
possession of material inside information about the Company.
It was only on August 5, 2010, however, that investors learned the
truth about Lincoln after the Company announced that it was
changing its recruitment standards and could no longer maintain
its growth expectations. This came right on the heels of the
United States General Accounting Office's ("GAO") report
concluding that for-profit educational institutions like Lincoln
had engaged in an illegal and fraudulent course of action designed
to recruit students and over-charge the federal government for the
cost of such education. The August 5th release implicated
Lincoln's compliance with government (Title IV) regulations
because Lincoln reported a sudden change in "student starts" for
the upcoming quarter right after the government findings of
wrongdoing concerning recruitment. Following these disclosures,
shares of the Company fell over $4.30, or almost 20% in a single
trading day, on unusually high trading volume.
Plaintiff seeks to recover damages on behalf of all Class members
who purchased or otherwise acquired shares of Lincoln during the
Class Period. If you purchased or otherwise acquired Lincoln
shares during the Class Period, and either lost money on the
transaction or still hold the shares, you may wish to join in this
action to serve as lead plaintiff. In order to do so, you must
meet certain requirements set forth in the applicable law and file
appropriate papers no later than October 15, 2010.
A "lead plaintiff" is a representative party that acts on behalf
of other class members in directing the litigation. In order to be
appointed lead plaintiff, the court must determine that the class
member's claim is typical of the claims of other class members,
and that the class member will adequately represent the class.
Under certain circumstances, one or more class members may
together serve as lead plaintiff. Your ability to share in any
recovery is not, however, affected by the decision whether or not
to serve as a lead plaintiff. You may retain Bernstein Liebhard
LLP, or other counsel of your choice, to serve as your counsel in
this action.
If you are interested in discussing your rights as a Lincoln
shareholder and/or have information relating to the matter, please
contact:
Joseph R. Seidman, Jr., Esq.
BERNSTEIN LIEBHARD LLP
10 East 40th Street
New York, NY 10016
Telephone: (212) 779-1414
(877) 779-1414
E-mail: seidman@bernlieb.com
Bernstein Liebhard has pursued hundreds of securities, consumer
and shareholder rights cases and recovered almost $3 billion for
its clients. It has been named to The National Law Journal's
"Plaintiffs' Hot List" in each of the last seven years.
MICROTUNE INC: Faces "Goldstein" Suit Over Planned Zoran Merger
---------------------------------------------------------------
Microtune(R), Inc., faces a purported class action lawsuit
captioned Goldstein v. Fontaine, et al., C.A. No. 4:10-cv-00458,
filed in the U.S. District Court for the Eastern District of
Texas, according to the company's Sept. 15, 2010, Form 8-K filing
with the U.S. Securities and Exchange Commission.
On Sept. 7, 2010, Microtune, entered into an Agreement and Plan of
Merger, by and between the company, Zoran and Maple Acquisition
Corp., a wholly owned subsidiary of Zoran Corporation.
On Sept. 9, 2010, a purported class action lawsuit was filed in
U.S. District Court for the Eastern District of Texas by Steven
Goldstein, an alleged stockholder of Microtune, Inc.
The Goldstein complaint names as defendants Microtune, Inc., each
member of Microtune's board of directors as well as Zoran
Corporation.
The Goldstein lawsuit is a purported class action that alleges,
among other things, that (i) the Individual Defendants have
breached fiduciary duties they assertedly owed to Microtune's
stockholders in connection with the proposed transaction described
in the Agreement and Plan of Merger by and between Zoran, Maple
Acquisition Corp. and Microtune, dated as of Sept. 7, 2010; (ii)
that Microtune and Zoran have aided and abetted the purported
breaches of fiduciary duty; and (iii) that the merger
consideration is unfair and inadequate.
The plaintiffs seek, among other things, an injunction against the
consummation of the merger and recission of the Merger Agreement
to the extent already implemented.
Microtune, Inc. -- http://www.microtune.com/-- is a receiver
solutions company that designs and markets advanced radio
frequency (RF) and demodulator electronics for worldwide
customers. Its products, targeted to the cable, digital
television and automotive entertainment markets, are engineered to
deliver high-performance and reliable video, voice and data
signals across a diverse range of end products, from HDTVs, set-
top boxes and cable modems to car radios. Microtune is
headquartered in Plano, Texas, with key design and sales centers
located around the world.
MICROTUNE INC: Faces Four Suits in State Court Over Zoran Merger
----------------------------------------------------------------
Microtune(R), Inc., faces four purported class action lawsuits
filed in state court in Collin County, Texas, relating to its
planned merger with Zoran Corporation, according to the company's
Sept. 15, 2010, Form 8-K filing with the U.S. Securities and
Exchange Commission.
On Sept. 7, 2010, Microtune, entered into an Agreement and Plan of
Merger, by and between the company, Zoran and Maple Acquisition
Corp., a wholly owned subsidiary of Zoran.
On Sept. 9, 2010, Sept. 13, 2010 and Sept. 14, 2010, four
purported class action lawsuits were filed in state court in
Collin County, Texas by alleged stockholders of Microtune.
The four suits are:
1. Mancini v. Microtune, Inc. et al., Case No. 219-03731-2010,
2. Walbridge v. Microtune, Inc. et al., Case No. 219-03729-2010,
3. Ardito v. Fontaine et al., Case No. 429-03787-2010, and
4. Dunn v. Fontaine et al., Case No. 401-03816-2010.
Each of the State Court Lawsuits names as defendants Microtune,
each member of Microtune's board of directors, Maple Acquisition
Corp., and Zoran.
The Mancini and Walbridge lawsuits also name as a defendant
Microtune's Chief Financial Officer (Justin Chapman).
The State Court Lawsuits are purported class actions that allege,
among other things that (i) the Individual Defendants (and Mr.
Chapman, in the case of the Mancini and Walbridge lawsuits)
breached fiduciary duties they assertedly owed to Microtune's
stockholders in connection with the proposed transaction described
in the Merger Agreement; (ii) that Microtune and Zoran (and Maple,
in the case of the Mancini and Walbridge lawsuits) have aided and
abetted the purported breaches of fiduciary duty; and (iii) that
the merger consideration is unfair and inadequate.
The plaintiffs seek, among other things, an injunction against the
consummation of the merger and recission of the Merger Agreement
to the extent already implemented.
Microtune, Inc. -- http://www.microtune.com/-- is a receiver
solutions company that designs and markets advanced radio
frequency (RF) and demodulator electronics for worldwide
customers. Its products, targeted to the cable, digital
television and automotive entertainment markets, are engineered to
deliver high-performance and reliable video, voice and data
signals across a diverse range of end products, from HDTVs, set-
top boxes and cable modems to car radios. Microtune is
headquartered in Plano, Texas, with key design and sales centers
located around the world.
NBTY INC: Inks MOU to Settle Suit Over Planned Alphabet Merger
--------------------------------------------------------------
NBTY, Inc., entered into a memorandum of understanding to settle a
putative stockholder class action arising out of its planned
merger with Alphabet Holding Company, Inc., according to the
company's Sept. 16, 2010, Form 8-K filing with the U.S. Securities
and Exchange Commission.
On July 15, 2010, the company entered into a merger agreement
providing for the acquisition of the company by Alphabet Holding
Company, Inc., an entity formed by an affiliate of TC Group,
L.L.C. (d/b/a The Carlyle Group), and Alphabet Merger Sub, Inc.
In connection with the merger, on July 21, 2010, the first of two
putative stockholder class action lawsuits was filed in the
Supreme Court of New York against the company, members of its
board of directors, Alphabet Holding, Alphabet Merger Sub, and
Carlyle asserting that the directors breached their fiduciary
duties, and asserting that Alphabet Holding, Alphabet Merger Sub,
and Carlyle aided and abetted those alleged breaches of fiduciary
duty.
One of the two lawsuits was dismissed by the plaintiff, who then
joined in the other action.
On Sept. 16, 2010, the company entered into a memorandum of
understanding with the plaintiffs regarding the settlement of the
remaining putative stockholder class action.
NBTY, Inc is a leading global vertically integrated manufacturer,
marketer and distributor of a broad line of high-quality, value-
priced nutritional supplements in the United States and throughout
the world. Under a number of NBTY and third party brands, the
company offers over 22,000 products.
NEW MEXICO: Corrections Dep't. Accused of Not Paying Overtime
-------------------------------------------------------------
Courthouse News Service reports that the New Mexico Department of
Corrections failed to pay its workers for overtime, a class claims
in Albuquerque Federal Court.
PALAU: Faces Class Suit Over Alien Registration Scheme
------------------------------------------------------
ABC Radio Australia reports the government of Palau is being sued
for proposed changes to the alien registration scheme, with a
senator leading complaints against a directive requiring all
foreign workers and their dependants to register and pay $25.
Senator Adalbert Eledui believes President Johnson Toribiong's
directive is unconstitutional.
The Palau Bureau of Immigration began the process of registering
foreign workers in August.
ROHM AND HAAS: Civil Trial on Brain Cancer Suit Starts
------------------------------------------------------
Kevin P. Craver, writing for Northwest Herald, reports after more
than four years, the first McCullom Lake brain cancer plaintiff is
getting her day in court.
Or maybe up to three months in court.
A civil trial began Monday in a Philadelphia courtroom over the
2006 lawsuit filed by former village resident Joanne Branham. She
alleges that industrial pollution from Ringwood chemical
manufacturer Rohm and Haas caused her late husband, Franklin, to
develop glioblastoma multiforme brain cancer and die in 2004 at
age 63.
Philadelphia attorney Aaron Freiwald filed lawsuits on behalf of
Joanne Branham and her two former next-door neighbors, who also
were diagnosed with brain cancer.
The following is a guide to the first of 31 lawsuits that allege
that decades of exposure to contamination led to a cancer cluster
in the village and the Lakeland Park subdivision in neighboring
McHenry.
What does Joanne Branham's lawsuit allege? It alleges that
Franklin Branham's brain cancer was caused by decades of exposure
to air and groundwater pollution from Ringwood manufacturers Rohm
and Haas and Modine Manufacturing.
Her lawsuit accuses the company of negligence, conspiracy and
fraud, willful and wanton misconduct, and engaging in an
"ultrahazardous activity" that resulted in her husband's death.
Modine settled out of court with Branham and other plaintiffs in
2008.
What about the pollution? Records show that Morton International,
the plant's former owner, dumped its chemical waste into an 8-
acre, 15-foot-deep waste pit between the early 1960s and the late
1970s. That pit, as well as a smaller Modine dumping site, created
a contamination plume that extends more than a mile to the
southeast of the plant.
The lawsuits allege that the contamination fouled McCullom Lake's
private wells, and that natural evaporation and cleanup efforts
tainted the air. Rohm and Haas acknowledges the contamination, but
opposes any idea that it reached any residents or made them sick.
Philadelphia-based Rohm and Haas bought Morton in 1999. Dow
Chemical Co., based in Midland, Mich., last year bought Rohm and
Haas. The lawsuits were filed in Pennsylvania because the city is
home to Rohm and Haas' world headquarters.
How did the plaintiffs allegedly get sick? The lawsuits allege
that Franklin Branham and other brain cancer victims were exposed
to vinyl chloride through groundwater, air evaporation and
accidents. Vinyl chloride is a carcinogen that some studies link
to brain cancer in humans, but other studies say that the link is
inconclusive.
No test of McCullom Lake's wells since the lawsuits were filed has
come up positive for any of the chemicals listed in the lawsuits.
What is glioblastoma multiforme? It's a deadly and aggressive
cancer of the glial cells that protect and support the brain's
neurons. People diagnosed with glioblastoma have only a 3% chance
of being alive five years after diagnosis -- only two of the 10
plaintiffs with the disease still are living.
Although it is the most common type of brain cancer, glioblastoma
occurs in only about 3 people per 100,000. In the seven months
after Branham's lawsuit was filed, doctors diagnosed three more
residents in the town of 1,100 with the disease.
What are some things we might see at the trial? Both sides will
present experts in hydrology, air modeling, epidemiology and other
sciences to support their claims. Based on the testimony, jurors
will have to determine whether vinyl chloride causes brain cancer,
and whether Franklin Branham was exposed to it through Rohm and
Haas' pollution.
At least 10 of the 12 jurors have to agree that Rohm and Haas is
liable to return a guilty verdict under Pennsylvania law.
Expect to see Mr. Freiwald make an issue of Morton's past history.
Although the company reported the contamination to the Illinois
Environmental Protection Agency in 1983, internal memos reveal
that executives knew about it in 1973. At the same time, they
apparently withheld that information from their own attorney as he
successfully sought a permit waiver from the IEPA.
Also watch for Mr. Freiwald to scrutinize the scientific accuracy
of, and the chemical industry's involvement with, studies that
downplay vinyl chloride's link to brain cancer.
Will the jury see any of the epidemiology work done by government
agencies? No. Judge Allan Tereshko ruled in May that
investigations done by the McHenry County Department of Health,
the Illinois Department of Public Health, and the U.S. Centers for
Disease Control and Prevention are inadmissible at trial because
they do not examine brain cancer rates specific to McCullom Lake.
How many plaintiffs are there today? Thirty-one. There are 24
plaintiffs with brain tumors, five with pituitary tumors, one with
both, and one with liver cirrhosis of unknown origin.
Wasn't there a class-action lawsuit as well? Mr. Freiwald filed a
class-action lawsuit in federal court at the same time that he
filed the first three individual lawsuits in Pennsylvania state
court. The federal lawsuit seeks to force Rohm and Haas to pay for
medical screening for current and former McCullom Lake residents,
and to compensate them for lost property values.
U.S. District Court Judge Gene Pratter ruled March 5 that the
lawsuit failed to meet the legal burden required for a class
action. Mr. Freiwald has appealed Judge Pratter's ruling to the
Third U.S. Circuit Court of Appeals.
What were the terms of Modine's settlement? Racine, Wis.-based
Modine denied any culpability, but settled with plaintiffs for
undisclosed sums.
The company also settled the class-action, paying $1.4 million
toward financing a medical screening program, and $100,000 toward
property value relief. The small amount -- property reimbursement
came out to just under $400 per applicant -- was attributed to the
fact that Modine was a minimal contributor to the pollution
compared with Rohm and Haas.
Two of the plaintiffs were diagnosed through Modine-funded medical
screening.
SANFORD BROWN: Plaintiffs Seek to Amend Complaint to Add Claims
---------------------------------------------------------------
Amelia Flood, writing for The Madison County Record, reports four
women who claim Sanford Brown College falsely promised them their
medical assistants programs would lead to employment are asking to
add new claims to their suit.
Plaintiffs Jenna and Jessica Lilley, Candace Lindsey and Ashley
Cunningham propose to lead a class of fellow students against
Career Education Corp. and Sanford Brown College.
The plaintiffs contend in their Aug. 25 motion to amend their
first amended complaint that new facts have come to light and that
a second amended complaint against the defendants will assist the
court in eventually deciding whether or not to certify the 2008
class action.
The case is set for case management in October.
In the proposed second amended complaint, the plaintiffs argue the
defendants fraudulently advertised their medical assistant program
and misled students in order to benefit financially.
The second amended complaint lists claims under the state's
Private Business and Vocational Schools Act, the Consumer Fraud
and Deceptive Business Practices Act, and common law fraud.
The suit seeks unspecified compensatory damages, attorney's fees
and costs, and other relief.
The plaintiffs are represented by Corey Sullivan of St. Louis.
The defendants are represented by Randal Mullendore of St. Louis.
Madison County Circuit Judge Daniel Stack presides.
The suit was previously part of Madison County Circuit Judge
Barbara Crowder's docket.
The case is Madison case number 08-L-113.
SEARS ROEBUCK: Court to Hear Motion to Dismiss "Dalla Riva" Suit
----------------------------------------------------------------
Amelia Flood, writing for The Madison County Record, reports the
plaintiff who proposes to lead a Madison County class action
against Sears Roebuck and Company over allegedly malfunctioning
washing machines wants her case to continue.
Sears had moved to have the proposed class action led by Therese
Dalla Riva dismissed, arguing the complaint fails to allege
specific faults under the state's consumer fraud and deceptive
business practices statutes.
Circuit Jude David Hylla is set to hear arguments on the matter
Friday at 10:30 a.m.
Ms. Dalla Riva filed suit earlier this year, claiming that the
company's Kenmore Elite Oasis automatic washing machines had
defective electronic control boards that cause the machines to
malfunction.
The plaintiff claims that she and a class of Illinois consumers
were not told of the malfunction and the defective control boards
when she purchased her washing machine four years ago.
Ms. Dalla Riva claims the company deliberately concealed the
defect.
Sears has argued that the suit does not properly state a claim and
that the plaintiff's claims are not actionable.
If the suit is not dismissed, the company has asked that the Dalla
Riva case be stayed pending the outcome of a federal case in
California, Tietsworth vs. Sears Roebuck and Co. and Whirlpool
Corp.
Ms. Dalla Riva also opposes any stay in her case, citing the early
pre-trial status of the California case.
She also claims the California case and her case are different
causes of action and that Tietsworth's plaintiffs have no
connection to Illinois.
Mark Goldenberg and Scott Shepherd represent Ms. Dalla Riva and
the proposed class.
Stephen Strauss and others represent Sears.
The case is Madison case number 10-L-203.
SONY COMPUTER: Seeks Dismissal of PS3 & "Other OS" Class Suit
-------------------------------------------------------------
IGN.com reports the attorneys representing Sony Computer
Entertainment America have responded to a class action complaint
filed against the company for removing the other 'Other OS'
feature from the PlayStation 3.
Sony removed the feature in April due to potential security issues
as part of PS3 firmware update v3.21. Seven total class action
lawsuits were filed against the company soon after, and in July, a
judge ruled to consolidate all the lawsuits into one complaint.
Last week, however, Sony's attorneys filed a motion for the court
to strike the class allegations and to dismiss the case.
Sony contends the plaintiffs' claims that the company advertised
the Other OS feature then later removed it -- depriving PS3 users
of software features -- is contradicted by the explicit terms
stated in SCEA's written express warranty, the System Software
License Agreement and the PSN Terms of Service.
"These contracts specifically provide PS3 purchasers with a
license, not an ownership interest, in the software and in the use
of the PSN, and provide that SCEA has the right to disable or
alter software features or terminate or limit access to the PSN,
including by issuing firmware updates," the motion reads.
"Plaintiffs therefore cannot succeed in any of their claims
because SCEA's alleged alteration/disablement of PS3 features
including the Other OS, was entirely proper and authorized."
Sony's motion also said the complaint fails to provide any mass
media advertising campaign, statements by SCEA, or PS3 packaging
that referenced the 'Other OS' feature.
"Instead, it includes a mix of quotes drawn from obscure articles
and unrelated third party publications, and a smattering of out of
context and incomplete references to a few pages of SCEA's website
and user manual," Sony said.
Sony went on to list several reasons why the court should strike
the class allegations from the complaint and pointed to the fact
all plaintiffs did not use the Other OS feature in the same
manner, if at all.
"One plaintiff never installed Linux during the more than two
years he owned his PS3; two plaintiffs used the Other OS feature
only to do things equally available through the PS3 native
operating system; one plaintiff supposedly also played Linux-
specific games; and the last plaintiff used Linux extensively,
including for electronic mail, word processing, spreadsheet
software, and other 'productivity applications.'"
Sony later referenced various message board postings from PS3
owners admitting they had "no idea that the PS3 even had an Other
OS function or Linux functionality."
The company also cited numerous postings from owners who stated
they "did not purchase the PS3 because of the Other OS feature and
did not use it" and others saying they downloaded the update
because "they did not care about the Other OS feature."
Both parties will be heard before a judge on November 4, 2010. The
plaintiffs, meanwhile, have requested that Sony turn over internal
documents regarding the decision to remove the 'Other OS' feature.
"We are in the process of reviewing Sony's Motions to Dismiss and
to Strike," a representative from the interim co-lead counsel for
the plaintiffs told IGN. "These types of motions are fairly common
at this stage of the litigation and we believe we have strong
arguments for why they should be denied."
"We plan on vigorously opposing these motions and we hope to have
them decided in November. In the meantime, we have requested that
Sony turn over its internal documents about why the 'Other OS'
feature was removed and we look forward to reviewing those
materials."
TOYOTA MOTOR: Nov. 19 Hearing Set on Bid to Dismiss Recall Suits
----------------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports
Toyota Motor Corp. has moved to dismiss hundreds of lawsuits
seeking damages associated with its recalls related to sudden
unintended acceleration.
Toyota filed the motions in response to the first consolidated
complaints filed as part of the multidistrict litigation against
the automaker. More than 300 lawsuits seek economic damages for
consumers and businesses plus damages for individuals who were
injured or died in accidents attributed to sudden acceleration.
The cases have been coordinated before U.S. District Judge James
Selna in Santa Ana, Calif.
On Aug. 2, the plaintiffs' steering committee overseeing the
economic damages claims against Toyota filed two actions: An
economic loss master consolidated complaint and a first amended
consolidated complaint. Both seek to represent a nationwide class
of consumers and allege claims under California law, including the
Consumer Legal Remedies Act, the California Unfair Competition Law
and the California False Advertising Law.
On Sept. 14, Toyota moved to dismiss the master consolidated
complaint as "replete with hyperbole, misleading statistics,
anecdotes, and legal conclusions." The pleading by Toyota's
lawyers, Cari Dawson and Lisa Gilford, both partners at Atlanta's
Alston & Bird, continued: "Yet they seek for themselves and on
behalf of a putative nationwide class, economic damages and
injunctive relief based not upon reliable, verifiable empirical
evidence and valid scientific analysis, but upon a rush to
judgment fueled by incomplete and inaccurate information and
analysis."
For instance, the complaint fails to identify a "common defect" in
the electronic throttle control system of the vehicles at issue,
they wrote. And Toyota has already addressed unintended
acceleration by recalling vehicles with defective floor mats and
"sticky" accelerator pedals.
The motion said that 26 of the named plaintiffs in the master
consolidated complaint -- about half -- did not experience
unintended acceleration. Without injuries, the plaintiffs lack
standing to pursue a claim, Toyota's lawyers wrote.
Toyota's lawyers also argued that the plaintiffs' steering
committee cannot bring claims on behalf of a nationwide class
under California law and that the plaintiffs did not identify a
specific misrepresentation in marketing materials upon which they
relied when purchasing the vehicles.
Also on Sept. 14, Toyota moved to dismiss about 50 personal injury
and wrongful death lawsuits being handled by a separate
plaintiffs' steering committee in the MDL.
In that motion, Toyota's lawyers at Bowman and Brooke, partners
Vincent Galvin Jr. and Joel Smith, said the plaintiffs have failed
to state a claim.
"Each plaintiff contends that the subject accident was the result
of a sudden, unintended acceleration event," wrote Toyota's
lawyers. "However, plaintiffs do not and cannot attribute these
sudden, unintended acceleration events to a particular defect in
the vehicle."
Many of the claims brought by plaintiffs seeking damages for
injuries or deaths include negligence, strict product liability,
breach of express and implied warranties, fraudulent concealment
and misrepresentation.
Under heightened pleading standards outlined in the U.S. Supreme
Court's decisions in Bell Atlantic Corp. v. Twombly and Ashcroft
v. Iqbal, such claims aren't plausible, Toyota's lawyers contend.
In Twombly, the court in 2007 required plaintiffs to show that
their claims were plausible, not just possible. And last year, the
court in Iqbal required plaintiffs to present more conclusory
facts in their pleadings.
"Plaintiffs must do more than speculate that a wrong has been
committed and demand relief," they wrote. "The pleadings here are
rife with vague and unspecified allegations that Toyota failed to
disclose the fact that the subject vehicles contained an
unidentified defect."
They also claim that Toyota owes no fiduciary duty to the
plaintiffs, who purchased their vehicles from independent
dealerships, and that the plaintiffs have failed to pinpoint the
advertising claims on which they relied.
Separately, CTS Corp., which manufactured parts for some of
Toyota's accelerator pedals, moved to dismiss eight personal
injury and wrongful death cases in which it is named as a
defendant. CTS, represented by Galvin and Smith, said that it
never made the pedals for the vehicles identified in those cases.
A hearing on the motions is scheduled for Nov. 19.
UNITEDHEALTH GROUP: Court Gives Final Okay to $350MM Settlement
---------------------------------------------------------------
Nate Raymond, writing for New York Law Journal, reports a federal
judge on Monday gave final approval to a $350 million class action
settlement with UnitedHealth Group Inc., awarding $89 million in
attorney fees and expenses along the way.
Southern District of New York Judge Lawrence M. McKenna endorsed a
motion by lawyers for the plaintiffs at Pomerantz Haudek Grossman
& Gross to grant final approval of the settlement, which resolved
claims that the health insurer colluded with others to underpay
doctors outside of its network. The judge also awarded 25% of the
cash settlement fund, or $87.5 million, in fees, as well as $1.5
million in expenses.
"The fees and expenses and compensatory awards are reasonable in
light of the complexity of the case and the result," Judge McKenna
wrote.
The settlement in The American Medical Association v. United
Healthcare Corporation, 00-cv-2800, came in a suit commenced in
2000 by the American Medical Association and other medical groups,
providers and patients seeking relief for physicians who were
harmed by UnitedHealth's use of a database to determine payments
for out-of-network doctors.
An investigation by New York Attorney General Andrew Cuomo
resulted in UnitedHealth agreeing in January 2009 to a $50 million
settlement and the closure of the database, which Mr. Cuomo at the
time said resulted in "unfair reimbursements" to patients. The
class action settlement, announced two days later, also required
the end of the database but on a national basis.
Judge McKenna unsealed his preliminary approval of the settlement
in December. Another $12 million will be added in interest,
according to the motion McKenna approved Monday. The attorney fees
will be split among lead counsel Pomerantz Haudek and other firms.
D. Brian Hufford, Esq., a partner at Pomerantz Haudek, said his
side was "thrilled to have it come to an end in what we believe is
an exceptional settlement." UnitedHealth, represented by Jeffrey
Klein, Esq., at Weil, Gotshal & Manges, in a statement said it was
"pleased to have final approval of the settlement."
WPCS INTERNATIONAL: Faces "Pignataro" Suit in Delaware
------------------------------------------------------
WPCS International Incorporated faces a purported class action
lawsuit captioned Pignataro v. WPCS International Incorporated, et
al., 5801- ,filed in the Court of Chancery of the State of
Delaware, according to the company's Sept. 14, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended July 31, 2010.
On Sept. 7, 2010, a purported shareholder of the company filed a
lawsuit against the company and its directors.
The complaint claims breach of fiduciary duty in connection with a
purported offer to acquire the company. The time for the company
to respond formally to this lawsuit has not come.
WPCS International Incorporated -- http://www.wpcs.com/-- is a
design-build engineering company that focuses on the
implementation requirements of communications infrastructure. The
company provides its engineering capabilities including wireless
communication, specialty construction and electrical power to the
public services, healthcare, energy and corporate enterprise
markets worldwide.
XSTRATA PLC: Will Counter Lead Poisoning Class Suit in Court
------------------------------------------------------------
Bloomberg News reports Xstrata Plc, owner of lead and zinc
operations in western Australia, said it will counter allegations
of lead poisoning in children from its mines in Queensland in a
court of law.
Legal firm Slater & Gordon Ltd., which represents two children
with elevated lead levels in their blood, filed claims in 2008
against the company, its Mt. Isa Mines unit and the Queensland
government's Environmental Protection Agency under the Personal
Injuries Proceedings Act.
Slater & Gordon should "expeditiously bring all the Mount Isa lead
cases to a court of law to enable the full story to be heard,"
Xstrata said Monday in an e-mailed statement.
Regulatory limits for lead air emissions at any air monitor in the
Mount Isa community have never been breached since the unit was
acquired in 2003, Xstrata said.
"If we have any legal cases to answer in relation to an
individual's blood lead levels then we are prepared to answer them
all in court," Xstrata Mount Isa Mines Chief Operating Officer
Steve de Kruijff said in the statement.
Mt. Isa produced about 324,000 metric tons of zinc and 126,000
tons of lead last year.
* Business Groups Say Disclosure Proposal Could Fuel Class Suits
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Jean Eaglesham, writing for The Financial Times, reports plans to
force U.S. companies to disclose potential losses from any class
action lawsuits that could have a severe impact are provoking a
backlash, spearheaded by more than 140 of the biggest U.S.
businesses.
Companies warn the proposals will fuel America's class action
industry, offering plaintiffs' attorneys a "road map" to the level
of damages to seek and making shareholder-friendly settlements
more difficult.
The companies fear new rules would open up a front in the ongoing
war between corporate America and the attorneys who specialize in
bringing hundreds of class actions each year, in lawsuits that are
often settled for a tiny proportion of the headline claim.
In addition, there are expectations that the proposals could
trigger litigation against businesses that make inaccurate
estimates of future losses.
"The only folks who benefit from this are people on the
plaintiffs' bar, who would love more information about what
companies deem the value of litigation may be," Susan Hackett,
senior vice-president of the Association of Corporate Counsel,
told the Financial Times.
The Financial Accounting Standards Board proposals would require
companies to report publicly far more information on the potential
costs of ongoing litigation, including a running tally of the
estimated or accrued amounts for each class of claim.
Companies would have to disclose their estimated liability for
claims that could have a severe impact, even if they had only a
"remote" chance of success. Companies would also have to disclose
reports in reputable scientific journals of potentially
significant liabilities related to their products or operations,
even if no claim had been brought.
The FASB declined to comment on the concerns. But its discussion
document said the new regime would help improve information for
shareholders, avoiding unpleasant surprises when companies
disclosed accruals for expected losses.
So far, 140 companies have signed a response objecting to the
planned rules that will be submitted on Monday by the Association
of Corporate Counsel, while others have expressed their concerns
separately.
Companies objecting to the proposals include AT&T, Bank of
America, Citigroup, Coca-Cola, Ford Motor, General Electric,
Google, Hewlett-Packard, Intel and McDonald's.
* Class Action Regimes in Australia Appear Underutilized
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Leonie Wood, writing for The Age, reports a major study of class
actions in Australia has found that, contrary to reports
suggesting such litigation is out of control, the class action
regimes available in the Federal Court and the Victorian Supreme
Court appear to be surprisingly underutilized.
The report, led by Professor Vince Morabito of Monash University,
also found that the number of potential claimants backing out of
class actions was extraordinarily high -- far above the 1%
legislators expected when they formalized the Part IVA regime
almost two decades ago and much higher than opt-out rates in the
United States.
Professor Morabito said the unusually high opt-out rate appeared
to be due to substantial confusion -- in many cases, a "total
misunderstanding" -- among potential claimants about what they
were actually doing.
He also found "extremely high" opt-out rates in cases where
potential claimants had been contacted directly by the defendants.
Of 16 such cases in the Federal Court, the average dropout rate
jumped to more than 51% of claimants, while in the Victorian
Supreme Court, 84.5% of claimants walked away after being
contacted by the other side.
The report released Monday is the second part of an extensive
empirical study of Australian class actions. It includes data
compiled from Federal Court registries in all states and from the
Victorian Supreme Court, and has drawn on information supplied by
leading Federal Court and Supreme Court judges, litigation
funders, the top class-action law firms for both sides, and
academics.
The research team found that by June 2009, 253 class actions had
been filed in the Federal Court since the Part IVA provisions were
introduced in March 1992. That represented an average of 14.64
cases a year, but the rate of case initiations has been declining
since 2000, despite more active participation by litigation
funders.
The Victorian Supreme Court has handled class actions since 2000.
Twenty-eight cases were filed in the court before December 31,
2009, and three have been filed this year.
Nine class actions are still on foot in the Victorian Supreme
Court. Five arise from the devastating bushfires of 2009, one from
the 2003 bushfires, one was initiated by residents exposed to
methane gas emissions on a suburban housing estate, and two relate
to the collapse of managed investment schemes Great Southern
Plantations and Timbercorp.
But filings in the Supreme Court are expected to jump in the next
12 months. Lawyers representing growers in the Great Southern
schemes have told the court up to 15 more cases may be filed, and
there are suggestions that more investors in other failed managed
investment schemes also follow suit.
Of the 253 class actions filed in the Federal Court, the research
team located only 18 that had been financed by litigation funders
and 11 of these involved shares or other financial securities. Of
the 18 funded cases, 10 settled generating compensation totalling
$311 million -- $92.1 million (or 29.61%) went straight to
litigation funders.
The $311 million figure includes a settlement of $110 million
arising from the Multiplex case, which was finalised in July. The
case was highly unusual in so far as it involved shareholders who
spurned a $32 million settlement struck by the Australian
Securities and Investments Commission in 2006 and instead battled
the company to get more.
Professor Morabito said the results disproved claims by some media
commentators that too many class actions were being filed. He said
there had been "no opening of the floodgates" as some feared, and
the figures proved "unambiguously that whatever problems
Australia's two class action regimes may have created for society
in general, the judiciary, the business community or anybody else
for that matter, the bringing of excessive numbers of class
actions is not among them".
He said there was also much confusion about numbers of class
actions, with the media often falsely reporting class actions
being "filed" when in fact many law firms were merely testing
public responses to see if they could garner sufficient support
and evidence to run a future case.
*********
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
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USA. Gracele D. Canilao, Leah Felisilda, Rousel Elaine Fernandez,
Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline
Abangan and Peter A. Chapman, Editors.
Copyright 2010. All rights reserved. ISSN 1525-2272.
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