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C L A S S A C T I O N R E P O R T E R
Tuesday, September 28, 2010, Vol. 12, No. 191
Headlines
APOLLO GROUP: Bernstein Liebhard Files Securities Class Suit
AUSTRALIA: Water Rights Challenge Could Become Class Action
BANK OF AMERICA: Sued for Breaching TPP Contracts with Homeowners
BHP BILLITON: Ontario Ct. Strikes Out Windup Bid v. Rio Algom Plan
BHP BILLITON: Suit vs. Cerrejon Zona Norte Still in Discovery
BHP BILLITON: Carbones del Cerrejon Defends Suit in Colombia
BRUMLOW MILLS: Recalls 1,000 Zen Large and Small Room Rugs
CARRIAGE SERVICES: 7th Circuit Denies Writ of Mandamus
CHARLIE CRIST: Circuit Court Judge Denies Class Certification
CONSTELLATION ENERGY: Motion to Dismiss Securities Suit Pending
CONSTELLATION ENERGY: Motion to Dismiss ERISA Suit Pending
DUOYUAN GLOBAL: Pomerantz Haudek Files Class Suit in New York
EF JOHNSON: Faces Consolidated Suit Over Planned FP-EF Merger
ENHANCED SERVICES: Faces Class Suit Over "Cramming"
EUROPEAN UNION: Carriers Plan Suit Over Ash-Related Losses
FOREST ENTERPRISES: May Face Class Action Over Grower Loans
GILDAN ACTIVEWEAR: Judge Orders Plaintiffs' Law Firms to Diversify
HARTFORD FIN'L: Gets Final Court Okay of $72.5 Million Settlement
HYUNDAI MOTOR: Recalls 140,000 Sonata Sedans Over Steering Defects
JAKKS PACIFIC: Awaits Final Approval of Securities Suit Accord
MARINER ENERGY: Inks MOU to Settle Two Merger-Related Suits
MICRUS ENDOVASCULAR: Defends "Sauser" Suit Over J&J Merger
MICRUS ENDOVASCULAR: Defends "Houston" Lawsuit Over J&J Merger
MIRANT CORP: Motion to Dismiss Four Amended Complaints Pending
MOLENAAR LLC: Recalls 315,000 Electroluminescent Night Lights
NOVATEL WIRELESS: Petition to Appeal Certification Order Pending
ORLEANS PARISH: Hearings Held on Class Suit Filed by Ex-Employees
REDFLEX TRAFFIC: ATS Removes "Jadeja" Complaint to N.D. Calif.
SIEMENS INDUSTRY: Recalls 2.2MM Siemens & Murray Circuit Breakers
TEXAS WINDSTORM: Lawmaker Revives Disputed Info Request
UNION CARBIDE: Wants Louisiana High Court to Overturn 12 Judgments
VALERO ENERGY: Court Certifies "Injunction Class" in KS Suits
WAL-MART STORES: Faces Class Suit Over ATM Fees in Texas
WAMU PENSION PLAN: Hearing on $20MM Settlement Set for Oct. 29
WATERS CORP: Plaintiff's Appeal on Dismissal of Suit Pending
WENDELL HALL: Faces Suit Over Postcard-Only Policy for Inmates
*********
APOLLO GROUP: Bernstein Liebhard Files Securities Class Suit
------------------------------------------------------------
Bernstein Liebhard LLP disclosed Friday that it filed a class
action in the United States District Court for the District of
Arizona on behalf of purchasers of Apollo Group, Inc., common
stock during the period December 7, 2009 and August 3, 2010. The
civil action number of the case is 10cv2044.
Plaintiffs allege that Defendants made misstatements in violation
of the Securities Exchange Act of 1934 about Apollo's projected
earnings and growth prospects throughout the Class Period.
It was only on August 3, 2010 that investors finally began to
learn the truth about Apollo after the United States General
Accounting Office issued a report that concluded that for-profit
educational institutions like Apollo 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.
Following these disclosures, shares of the Company declined
precipitously over just a few trading days -- falling almost 10%
between August 3 and August 5, 2010, on unusually high trading
volume, thereby erasing over $684.53 million of the Company's
market capitalization in only four trading days.
Plaintiff seeks to recover damages on behalf of all Class members
who purchased or otherwise acquired shares of Apollo during the
Class Period. If you purchased or otherwise acquired Apollo 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 an Apollo
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: (877) 779-1414
(212) 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.
You can obtain a copy of the complaint from the clerk of the court
for the United States District Court for the District of Arizona
or at http://www.bernlieb.com/
AUSTRALIA: Water Rights Challenge Could Become Class Action
-----------------------------------------------------------
ABC Rural reports the issues of water rights and ownership is
being flagged as a potential legal class action against the
commonwealth, by environment and water group Alpine Riverskeepers.
The Snowy Mountains group are questioning the effect of sales of
water licenses on the environment, and specifically water flows.
Australia's top constitutional law expert Professor George
Williams says the government has the right to sell the water but
he anticipates there will be more legal future challenges on the
aging constitution.
"People are dealing with a system of law that is not well designed
for these problems that was written in the 1890's at a time when
they drafted these water provisions with a view to irrigation and
the river boat trade up the Murray-Darling and the river boat
trade in particular has not survived," he says.
"And yet that is framework of law that we have got to deal with
those issues and certainly not the contemporary problems we are
facing."
BANK OF AMERICA: Sued for Breaching TPP Contracts with Homeowners
-----------------------------------------------------------------
Gretha Wilkerson, individually and on behalf of others similarly
situated v. Bank of America Home Loans Servicing, LP, and Bank of
America N.A., Case No. 10-cv-04294 (N.D. Calif. September 22,
2010), accuses BofA of failing to comply with its written and TPP
contracts with members of the plaintiff class, and failing to
comply with its obligations under the HAMP program.
BofA received approximately $45 billion in federal funds in 2008
and 2009 under the U.S. Treasury Department's Troubled Asset
Relief Program. In exchange for these funds, BofA is required
under TARP to participate in the Treasury's Home Affordable
Modification Program for the loans wherein it is the loan
"servicer."
The HAMP program creates a uniform loan modification protocol, and
provides financial incentives for participating servicers to
modify loans, with the objective of giving residential property
owners "every reasonable opportunity possible to keep their
homes," through a restructuring of their mortgages. Specifically,
HAMP requires banks, inter alia, to provide permanent
modifications to all residential property owners who are able to
make the modified payments for a three-month trial period and who
comply with all requirements.
Ms. Wilkerson's Complaint alleges that residential property owners
who request to be evaluated for a modification under HAMP
routinely face unexplained delays, and go months with no
communication from BofA after providing all information requested.
Many residential property owners are told they qualify for a trial
period plan, but are never sent an official trial plan agreement.
Even after the homeowner makes the trial payments, BofA later
denies the homeowner was ever eligible. For others who receive an
official HAMP trial plan agreement, and who comply with all terms
of the trial plan, BofA routinely denies permanent modification,
without justification.
Ms. Wilkerson explains that BofA offers TPPs to eligible
residential property owners through a TPP Contract, which
describes the homeowner's duties and obligations and that the TPP
Contract promises a permanent HAMP modification for those
borrowers who make the required payments under the plan and
fulfill the documentation requirements. Ms. Wilkerson further
relates that BofA also represents on its Web site and in other
stardardized written and oral communications that borrowers who
successfully make the trial period payments will be given a
permanent modification.
Ms. Wilkerson adds that BofA intentionally set up its loan
modification program to fail, because the more BofA delays, the
more the residential property owners owe, and thus heavier penalty
and other charges they have to pay BofA. It instituted a program
to feign compliance with the TARP conditions, but never had any
intention to allow widespread modification for residential
property owners in need. Ms. Wilkerson states that the statistics
reflect this reality. In January 2010, the U.S. Treasury reported
that BofA had 1,066,025 HAMP-eligible loans in its portfolio.
Trial periods had been started on only 237,766 of these loans. Of
those, just 12,761 resulted in permanent modifications (only 5% of
the started Trial modifications and just over 1% of the
eligibility pool).
Ms. Wilkerson alleges that BofA's failure to honor its obligations
under HAMP and its TPP "leaves residential property owners in
long-term limbo, unsure if they can save their homes, and unable
to make rational decisions about their future." Money that could
be used to fund bankruptcy plans, relocation costs, short sales,
or other means of curing their default continued to go toward
mortgage payments that stretch on indefinitely.
The Plaintiff asks the Court to grant a temporary restraining
order preventing foreclosure of Plaintiff's property, and asks the
Court to award Plaintiff and the plaintiff class actual damages
or, in the alternative, that BofA be ordered to make restitution
to members of the plaintiff class pursuant to Cal. Bus. & Prof.
Code Sec. 17203.
The Plaintiff is represented by:
Donald Amamgbo, Esq.
AMAMGBO & ASSOCIATES
P.O. Box 13315, PMB #148
Oakland, CA 94661
- and -
Reginald Terrell, Esq.
THE TERRELL LAW GROUP
P.O. BOX 13315, PMB #148
Oakland, CA 94661
- and -
Walter Harper, Esq.
ATTORNEY AT LAW
192 Staten Avenue, Suite 702
Oakland, CA 94611
BHP BILLITON: Ontario Ct. Strikes Out Windup Bid v. Rio Algom Plan
------------------------------------------------------------------
Ontario Court of Appeal has ruled in favor of Rio Algom Limited's
motion to strike out that part of the plaintiff's claim that
sought a court order to wind-up the Pension Plan for Salaried
Employees of Rio Algom Mines Limited, according to BHP Billiton
plc's Sept. 21, 2010, Form 20-F filing with the U.S. Securities
and Exchange Commission for the fiscal year ended June 30, 2010.
In June 2003, Alexander E. Lomas, a retired member of the Pension
Plan for Salaried Employees of Rio Algom Mines Limited, filed a
Notice of Application in a representative capacity in the Ontario
Superior Court of Justice Commercial List against Rio Algom
Limited and the Plan Trustee alleging certain improprieties in
their administration of the Pension Plan and use of Pension Plan
funds from January 1966 onward.
Mr. Lomas seeks relief for himself and those Plan members he
purports to represent, in respect of a number of alleged breaches
committed by RAL, including allegations of breach of employment
contracts, breach of trust, breach of the Trust Agreement
underlying the Pension Plan.
In particular:
-- Mr. Lomas seeks $115.26 million (C$121.6 million) on
account of monies alleged to have been improperly paid
out or withheld from the Pension Plan, together with
compound interest calculated from the date of each
alleged wrongdoing; and
-- punitive, aggravated and exemplary damages in the sum of
$1.84 million (C$1.94 million).
Mr. Lomas purports to represent members of the defined benefits
portion of the Pension Plan. In 2005, the defined contribution
members of the Pension Plan were included as parties to this
action.
A motion to strike Mr. Lomas' request for the winding up of the
Plan was heard on Nov. 27, 2006.
The court struck out part of Mr. Lomas' claim, but allowed the
remainder. RAL's appeal from that decision was dismissed, but
further leave to appeal to the Ontario Court of Appeal was
granted.
On March 10, 2010, the Ontario Court of Appeal ruled in favor of
RAL's motion to strike out that part of the plaintiff's claim that
sought a court order to wind-up the Plan.
RAL has notified its insurers of the application and has advised
other third parties of possible claims against them in respect of
matters alleged in the application.
BHP Billiton plc -- http://www.bhpbilliton.com/-- is a
diversified natural resources company. The company is engaged in
extracting and processing minerals, oil and gas from its
production operations located primarily in Australia, the Americas
and southern Africa. It sells its product worldwide with its
marketing activities centralized in Singapore, The Hague and
Antwerp. The company operates in nine customer sector groups
(CSGs): petroleum, aluminium, base metals, diamonds and specialty
products, stainless steel materials, iron ore; manganese,
metallurgical coal, and energy coal. Its Petroleum CSG is a
global oil and gas business with producing assets in six countries
and exploration opportunities in a further six countries. During
the fiscal year ended June 30, 2009 (fiscal 2009), the company
realized annual production volumes of 137.2 million barrels of oil
equivalent. Its sells its crude oil production to refiners
worldwide at market prices.
BHP BILLITON: Suit vs. Cerrejon Zona Norte Still in Discovery
-------------------------------------------------------------
A suit against Cerrejon Zona Norte SA remains in discovery phase,
according to BHP Billiton plc's Sept. 21, 2010, Form 20-F filing
with the U.S. Securities and Exchange Commission for the fiscal
year ended June 30, 2010.
The non-government organisation, Corporacion Colombia
Transparente, brought three separate class actions (Popular
Actions numbers 1,029, 1,032 and 1,048) against various defendants
in connection with the privatisation of 505 of the Cerrejon Zona
Norte mining complex in Colombia in 2002.
Actions 1,029 and 1,048 were dismissed and the only one of these
three actions still on foot is popular action 1,032, against
Cerrejon Zona Norte SA, which remains in discovery phase.
The complex is currently owned by CZN and Carbones del Cerrejon
Limited. The company's subsidiary Billiton Investment 3 BV owns a
33% share in CDC, and its subsidiaries Billiton Investment 3 BV
and Billiton Investment 8 BV (BHP Billiton Shareholders)
collectively own a 33.33% share in CZN.
CCT alleges, in part, that the defendants failed to comply with
the privatisation process, and that the offer price for shares in
CZN between Stages 1 and 2 of the privatisation process was not
correctly adjusted for inflation.
The company's share of the alleged adjustment of the CZN share
price would be approximately $4 million.
In the alternative, CCT seeks declaration that the privatisation
is null and void and forfeiture of the transfer price paid, of
which the company's share would be approximately $148 million. In
both instances, CCT also seeks unquantified sanctions, including
payment of stamp taxes, an award of 15% of all monies recovered by
the defendants, together with interest on all amounts at the
maximum rate authorised by law.
BHP Billiton plc -- http://www.bhpbilliton.com/-- is a
diversified natural resources company. The company is engaged in
extracting and processing minerals, oil and gas from its
production operations located primarily in Australia, the Americas
and southern Africa. It sells its product worldwide with its
marketing activities centralized in Singapore, The Hague and
Antwerp. The company operates in nine customer sector groups
(CSGs): petroleum, aluminum, base metals, diamonds and specialty
products, stainless steel materials, iron ore; manganese,
metallurgical coal, and energy coal. Its Petroleum CSG is a
global oil and gas business with producing assets in six countries
and exploration opportunities in a further six countries. During
the fiscal year ended June 30, 2009 (fiscal 2009), the company
realized annual production volumes of 137.2 million barrels of oil
equivalent. Its sells its crude oil production to refiners
worldwide at market prices.
BHP BILLITON: Carbones del Cerrejon Defends Suit in Colombia
------------------------------------------------------------
Carbones del Cerrejon Limited defends a class action arising out
of the privatisation of the Cerrejon Zona Norte mining complex in
Colombia, according to BHP Billiton plc's Sept. 21, 2010, Form 20-
F filing with the U.S. Securities and Exchange Commission for the
fiscal year ended June 30, 2010.
A class action (Popular Action no. 242) has been brought by an
individual, Mr Mart¡n Nicolas Barros Choles, against various
defendants, including Carbones del Cerrejon Limited, arising out
of the privatisation of the Cerrejon Zona Norte mining complex in
Colombia.
The company's subsidiary Billiton Investment 3 BV owns a 33% share
in CDC.
Mr Choles claims that the transferral of rights by CDC to Cerrejon
Zona Norte SA was ineffective because it only involved a transfer
of shares and not the transfer of the underlying rights in the
properties and assets used in the Cerrejon North Zone operation.
Consequently, he is seeking orders that CDC pays for the use and
lease of the properties and assets until November 2009, and that
from that date the properties and assets of the Cerrejon project
revert to the State.
BHP Billiton plc -- http://www.bhpbilliton.com/-- is a
diversified natural resources company. The company is engaged in
extracting and processing minerals, oil and gas from its
production operations located primarily in Australia, the Americas
and southern Africa. It sells its product worldwide with its
marketing activities centralized in Singapore, The Hague and
Antwerp. The company operates in nine customer sector groups
(CSGs): petroleum, aluminum, base metals, diamonds and specialty
products, stainless steel materials, iron ore; manganese,
metallurgical coal, and energy coal. Its Petroleum CSG is a
global oil and gas business with producing assets in six countries
and exploration opportunities in a further six countries. During
the fiscal year ended June 30, 2009 (fiscal 2009), the company
realized annual production volumes of 137.2 million barrels of oil
equivalent. Its sells its crude oil production to refiners
worldwide at market prices.
BRUMLOW MILLS: Recalls 1,000 Zen Large and Small Room Rugs
----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Brumlow Mills, of Calhoun, Ga., announced a voluntary recall of
about 1,000 Zen Large and Small Room Rugs. Consumers should stop
using recalled products immediately unless otherwise instructed.
The large rugs fail to meet federal flammability standards and
could ignite, posing the risk of fire and burn hazards to
consumers. The small rugs fail to meet federal labeling
requirements. Small rugs are not required to meet the federal
flammability standard; however, they are required to be
permanently labeled with the following statement: "FLAMMABLE
(FAILS U.S. DEPARTMENT OF COMMERCE STANDARD FF 2-70): SHOULD NOT
BE USED NEAR SOURCES OF IGNITION."
No injuries or incidents have been reported.
This recall involves "Zen design" polypropylene rugs in rust and
sage colors. Zen rugs in other colors are not involved in this
recall. Only rugs purchased from January 2010 through March 2010
are involved in this recall.
Small Rugs Large Rugs
---------- ----------
Size Color Size Color
2'x3'3" Rust 5'x8' Rust
Sage Sage
2'6"x3'10" Rust 6' Sq Rust
Sage Sage
3'4"x5' Rust 22"x108" Rust
Sage Sage
22"x60" Rust 8'x10' Rust
Sage Sage
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml10/10757.html
The recalled products were manufactured in United States and sold
through J.C. Penney's Web site and catalog from January 2010
through March 2010 for between $40 and $400.
Consumers should immediately stop using the recalled rugs.
Consumers with large rugs should contact Brumlow Mills to obtain a
replacement or refund. Consumers with small rugs should contact
Brumlow Mills to obtain a new label including warning information.
The firm is contacting all known users. For additional
information, call Brumlow Mills at (877) 879-0176 between 8:00
a.m. and 5:00 p.m., Eastern Time, Monday through Friday.
CARRIAGE SERVICES: 7th Circuit Denies Writ of Mandamus
------------------------------------------------------
The Seventh Circuit Court of Appeals has denied the plaintiffs'
petition for writ of mandamus seeking relief from the order of
disqualification of counsel by the U.S. District Court for the
Southern District of Indiana, according to Carriage Services,
Inc.'s Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2010.
The suit is Leathermon, et al. v. Grandview Memorial Gardens,
Inc., et al., Case No. 4:07-cv-137.
On Aug. 17, 2007, five plaintiffs filed a putative class action
against the current and past owners of Grandview Cemetery in
Madison, Indiana -- including the Carriage subsidiaries that owned
the cemetery from January 1997 until February 2001 -- on behalf of
all individuals who purchased cemetery and burial goods and
services at Grandview Cemetery.
The Plaintiffs claim that the cemetery owners performed burials
negligently, breached Plaintiffs' contracts, and made
misrepresentations regarding the cemetery. The Plaintiffs also
allege that the claims occurred prior, during and after the
Company owned the cemetery.
On Oct. 15, 2007, the case was removed from Jefferson County
Circuit Court, Indiana to the Southern District of Indiana. On
April 24, 2009, shortly before Defendants had been scheduled to
file their briefs in opposition to the Plaintiffs' motion for
class certification, the Plaintiffs moved to amend their complaint
to add new class representatives and claims, while also seeking to
abandon other claims.
The company, as well as several other Defendants, opposed the
Plaintiffs' motion to amend their complaint and add parties.
In April 2009, two Defendants moved to disqualify the Plaintiffs'
counsel from further representing the Plaintiffs in this action.
On March 31, 2010, the Court granted the Defendants' motion to
disqualify the Plaintiffs' counsel. The Court gave the Plaintiffs
60 days within which to retain new counsel. In addition, all
discovery has been stayed and all pending motions including the
Plaintiffs' motion for leave to file an amended complaint and the
Plaintiffs' motion for class certification were dismissed without
prejudice to re-file with leave of Court upon retention of new
counsel.
On May 6, 2010, the Plaintiffs filed a petition for writ of
mandamus with the Seventh Circuit Court of Appeals seeking relief
from the trial court's order of disqualification of counsel.
On May 19, 2010, the Defendants responded to the petition of
mandamus. On July 8, 2010, the Seventh Circuit denied the
Plaintiffs' petition for writ of mandamus.
Thus, pursuant to the trial court's order, the Plaintiffs have 60
days from July 8, 2010 in which to retain new counsel to prosecute
this action on their behalf. Should the Plaintiffs retain new
counsel, Carriage intends to defend this action vigorously.
Carriage Services provides death care services and products.
Carriage operates 145 funeral homes in 25 states and 33 cemeteries
in 12 states.
CHARLIE CRIST: Circuit Court Judge Denies Class Certification
-------------------------------------------------------------
Michael Peltier, writing for The St. Augustine Record, reports
disgruntled donors who want Gov. Charlie Crist to return
contributions made when he was a Republican will have to file
their cases individually, a circuit court judge ruled Thursday by
rejecting a motion to allow thousands of cases to be joined in a
class action lawsuit.
"The plaintiff's request for certification is denied," Collier
County Senior Circuit Judge Jack Schoonover informed attorneys in
an e-mail. The final order was not yet available Thursday
afternoon.
Judge Schoonover's ruling comes days after attorneys for the
donors asked him to consolidate claims against Gov. Crist, who is
running as an independent candidate for the U.S. Senate. The pair
want Gov. Crist to return up to $7.5 million in contributions
given before he left the Republican Party in April.
Rep. Tom Grady, R-Naples and an attorney representing a pair of
Republican donors who gave money to Gov. Crist when he was running
as a Republican, said Thursday his clients have yet to decide if
they want to appeal the ruling.
In the meantime, Mr. Grady said is advising donors who want their
money back to take their individual cases to court.
"We may rather go ahead with a hundreds of individual claims," Mr.
Grady said. "We've spent a lot of time arguing about this class
action. It might just be better to give them what they want. Be
careful what you wish for."
Gov. Crist's attorney, however, called Thursday's decision a
victory in what he said was a "frivolous case" by the Republican
Party of Florida aimed at tying up Gov. Crist's money in the
campaign's final weeks.
"The court's decision underscores this case is nothing more than
two small claims disputes," said Fort Myers attorney Scott
Weinstein. "Once the court enters his formal order, what is left
of this case will find itself in the small claims division of the
county court,"
Judge Schoonover's ruling is the latest in a series of legal
battles fought before the senior judge.
Donors Linda Morton of Naples and John Rood, an RPOF finance
chairman and former U.S. ambassador to the Bahamas, sued Gov.
Crist in June, claiming he shouldn't be able to use campaign
contributions made when he was running for the U.S. Senate as a
Republican.
Though the two contributed a total of $5,300, they asked to be
allowed to represent hundreds of other contributors as well. On
Sept. 21, Judge Schoonover denied a motion for an injunction that
would have prevented Gov. Crist from spending money until the
judge ruled on class action status.
CONSTELLATION ENERGY: Motion to Dismiss Securities Suit Pending
---------------------------------------------------------------
Constellation Energy Group Inc.'s motion to dismiss a consolidated
amended complaint remains pending, according to the company's Aug.
6, 2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
Three federal securities class action lawsuits have been filed in
the U.S. District Courts for the Southern District of New York and
the District of Maryland between September 2008 and November 2008.
The cases were filed on behalf of a proposed class of persons who
acquired publicly traded securities, including the Series A Junior
Subordinated Debentures, of Constellation Energy between Jan. 30,
2008 and Sept. 16, 2008, and who acquired Debentures in an
offering completed in June 2008.
The securities class actions generally allege that Constellation
Energy, a number of its present or former officers or directors,
and the underwriters violated the securities laws by issuing a
false and misleading registration statement and prospectus in
connection with Constellation Energy's June 27, 2008 offering of
Debentures. The securities class actions also allege that
Constellation Energy issued false or misleading statements or was
aware of material undisclosed information which contradicted
public statements including in connection with its announcements
of financial results for 2007, the fourth quarter of 2007, the
first quarter of 2008 and the second quarter of 2008 and the
filing of its first quarter 2008 Form 10-Q.
The securities class actions seek, among other things,
certification of the cases as class actions, compensatory damages,
reasonable costs and expenses, including counsel fees, and
rescission damages.
The Southern District of New York granted the defendants' motion
to transfer the two securities class actions filed there to the
District of Maryland, and the actions have since been transferred
for coordination with the securities class action filed there. On
June 18, 2009, the court appointed a lead plaintiff, who filed a
consolidated amended complaint on Sept. 17, 2009.
On Nov. 17, 2009, the defendants moved to dismiss the consolidated
amended complaint in its entirety.
Constellation Energy Group Inc. -- http://www.constellation.com/
-- supplies energy products and services to wholesale and retail
electric and natural gas customers. It owns a diversified fleet
of generating units located in the United States and Canada,
totaling approximately 9,000 megawatts of generating capacity, and
is among the leaders pursuing the development of new nuclear
plants in the United States. The company delivers electricity and
natural gas through the Baltimore Gas and Electric Company (BGE),
its regulated utility in Central Maryland. A FORTUNE 500 company
headquartered in Baltimore, Constellation Energy had revenues of
$15.6 billion in 2009.
CONSTELLATION ENERGY: Motion to Dismiss ERISA Suit Pending
----------------------------------------------------------
Constellation Energy Group Inc.'s motion to dismiss a consolidated
action alleging violations of the Employee Retirement Income
Security Act, remains pending, according to the company's Aug. 6,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2010.
In the fall of 2008, multiple class action lawsuits were filed in
the U.S. District Courts for the District of Maryland and the
Southern District of New York against Constellation Energy; Mayo
A. Shattuck III, Constellation Energy's Chairman of the Board,
President and Chief Executive Officer; and others in their roles
as fiduciaries of the Constellation Energy Employee Savings Plan.
The actions, which have been consolidated into one action in
Maryland, allege that the defendants, in violation of various
sections of ERISA, breached their fiduciary duties to prudently
and loyally manage Constellation Energy Savings Plan's assets by
designating Constellation Energy common stock as an investment, by
failing to properly provide accurate information about the
investment, by failing to avoid conflicts of interest, by failing
to properly monitor the investment and by failing to properly
monitor other fiduciaries.
The plaintiffs seek to compel the defendants to reimburse the
plaintiffs and the Constellation Energy Savings Plan for all
losses resulting from the defendants' breaches of fiduciary duty,
to impose a constructive trust on any unjust enrichment, to award
actual damages with pre- and post-judgment interest, to award
appropriate equitable relief including injunction and restitution
and to award costs and expenses, including attorneys' fees.
On Oct. 2, 2009, the defendants moved to dismiss the consolidated
complaint in its entirety.
Constellation Energy Group Inc. -- http://www.constellation.com/
-- supplies energy products and services to wholesale and retail
electric and natural gas customers. It owns a diversified fleet
of generating units located in the United States and Canada,
totaling approximately 9,000 megawatts of generating capacity, and
is among the leaders pursuing the development of new nuclear
plants in the United States. The company delivers electricity and
natural gas through the Baltimore Gas and Electric Company (BGE),
its regulated utility in Central Maryland. A FORTUNE 500 company
headquartered in Baltimore, Constellation Energy had revenues of
$15.6 billion in 2009.
DUOYUAN GLOBAL: Pomerantz Haudek Files Class Suit in New York
-------------------------------------------------------------
Pomerantz Haudek Grossman & Gross LLP has filed a class action
lawsuit in the United States District Court, Southern District of
New York against Duoyuan Global Water, Inc., and certain of its
top officials. The class action (case no:10 Civ. 7233) was filed
on behalf of a class consisting of all persons or entities who
purchased Duoyuan Global Water securities during the period from
November 9, 2009 through September 13, 2010, inclusive. The
Complaint alleges violations of Sections 10(b) and 20(a) of the
Securities Exchange Act and Rule 10b-5 promulgated thereunder.
Duoyuan Global Water engages in the manufacture and sale of water
treatment equipments in the People's Republic of China. The
Company, primarily through its chairman, chief executive officer
and controlling shareholder, Wenhua Guo, maintains a substantial
interconnection with Duoyuan Printing, Inc., a Beijing based
manufacturer of commercial offset printing presses, which shares
the same headquarters as Duoyuan Global Water. Wenhua Guo also
served as chairman of Duoyuan Printing during the Class Period and
is the beneficial owner of 100% of the equity interest in Duoyuan
Global Water's majority shareholder, Duoyuan Investments Limited.
The Complaint alleges that throughout the Class Period, defendants
knew or recklessly disregarded that their public statements
concerning Duoyuan Global Water's business, operations, and
prospects were materially false and misleading. Specifically,
defendants made false and/or misleading statements and/or failed
to disclose, among other things, that: (1) due to the substantial
interconnection between Duoyuan Global Water and Duoyuan Printing,
the existence of accounting improprieties and ineffective internal
controls at Duoyuan Printing could negatively impact Duoyuan
Global Water; and (2), as a result, during the Class Period the
defendants lacked a reasonable basis for their statements about
Duoyuan Global Water, its business, operations, prospects and
growth.
On September 13, 2010, Duoyuan Printing announced a series of
alarming management changes -- including the resignation of its
CEO, its chief financial officer, and at least four members of its
board of directors -- and the dismissal of its independent
registered public accounting firm, Deloitte Touche Tohmatsu CPA
Ltd. As a result of this news, shares of Duoyuan Global Water
declined $8.60 per share, or more than 41%, to close on
September 13, 2010, at $12.10 per share.
If you are a shareholder who purchased Duoyuan Global Water
securities during the Class Period, you have until November 22,
2010 to ask the Court to appoint you as lead plaintiff for the
class. A copy of the complaint can be obtained at
http://www.pomerantzlaw.com/ To discuss this action, contact
Nicola Brown at info@pomlaw.com or 888.476.6529 (or 888.4-POMLAW),
toll free. Those who inquire by e-mail are encouraged to include
their mailing address and telephone number.
The Pomerantz Firm -- http://www.pomerantzlaw.com/-- with offices
in New York, Chicago, Washington, D.C., Columbus, Ohio and
Burlingame, California, is acknowledged as one of the premier
firms in the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as the
dean of the class action bar, the Pomerantz Firm pioneered the
field of securities class actions. Today, more than 70 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
EF JOHNSON: Faces Consolidated Suit Over Planned FP-EF Merger
-------------------------------------------------------------
EF Johnson Technologies, Inc., faces a consolidated suit arising
out of its planned merger with FP-EF Holding Corporation, an
affiliate of Francisco Partners II, L.P., according to the
company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2010.
The company entered into an Agreement and Plan of Merger dated as
of May 15, 2010, with FP-EF Holding Corporation -- Parent -- and
FP-EF Corporation -- Merger Sub -- as amended by that Amendment to
Agreement and Plan of Merger dated June 19, 2010. The Merger
Agreement provides that, upon the terms and subject to the
conditions set forth in the Merger Agreement, the Merger Sub will
merge with and into the company, with the company continuing as
the surviving corporation and as a wholly-owned subsidiary of
Parent. Parent is an affiliate of Francisco Partners II, L.P.
Since the announcement of the Merger, two putative stockholder
class action lawsuits have been filed against the company and the
members of the Board of Directors.
The suits are Bruce L. Deichl and P. Elayne Wishart v. EF Johnson
Technologies, Inc., et al., was filed in the District Court of
Dallas County, Texas on May 21, 2010 and Edwin McKean, Raul Quino
v. Michael Jalbert, et al. was filed in the District Court of
Dallas County, Texas on May 26, 2010.
The Plaintiffs in the Deichl and McKean lawsuits filed a
consolidated amended petition on June 30, 2010.
The consolidated petition names the company, the members of the
Board of Directors, Parent and Merger Sub as defendants.
The consolidated petition asserts generally that the members of
the Board of Directors breached their fiduciary duties by, among
other things, failing to maximize stockholder value in the Merger
and by failing to provide adequate disclosures in the company's
June 23, 2010 preliminary proxy statement.
The consolidated petition further asserts that the company, Parent
and Merger Sub aided and abetted those alleged breaches of
fiduciary duties. The consolidated petition seeks, among other
relief, an order enjoining the consummation of the Merger,
rescissory damages or rescission of the Merger if it is
consummated, other damages in an unspecified amount, and an award
of attorneys' fees and costs of litigation.
Headquartered in Irving, Texas, EF Johnson Technologies, Inc. --
http://www.EFJohnsonTechnologies.com/-- focuses on innovating,
developing and marketing the highest quality secure communications
solutions to organizations whose mission is to protect and save
lives. The company's customers include first responders in public
safety and public service, the federal government, and industrial
organizations. The company's products are marketed under the
EFJohnson, 3e Technologies International, and Transcrypt
International names and are Made in America.
ENHANCED SERVICES: Faces Class Suit Over "Cramming"
---------------------------------------------------
Chris Rowley at the Shawangunk Journal reports Hal Jay Greene, a
publisher who operates from premises on Boniface Drive, has become
the lead plaintiff in a class action suit concerning the
imposition of stealth fees and unauthorized charges on monthly
phone bills.
The practice, known as "cramming" has been prevalent for years,
but it has been booming in the past year. How it happens is that
unscrupulous "merchants" promote sweepstakes, or Internet
advertisements for things like "aura readings" and when
unsuspecting surfers give a phone number, they are deemed to have
authorized payments for some small service that they are usually
not even aware of.
The charge is then funneled through a middleman, a company like
ILD Teleservices of Ponte Vedra, Florida; or ESBI, of San Antonio,
Texas; and then on to your phone company, which by law must allow
these charges to go on your phone bill.
The genius of the scam is that phone bills are already an arcane
miscellany of charges, taxes, receipts, codes and plans, and most
consumers can barely understand what they're looking at anyway.
Toss in a $14 a month extra charge, cover it with initials, whip
up some confusing terminology, and many consumers shake their
heads in bafflement and just pay it.
Even if they do figure out that something's wrong, they then have
to go through several levels of hell to reach the right person at
the phone company to turn this charge off.
Many give up and continue to be crammed. This contributes to a
nice fat bottom line for the holding companies behind the
crammers.
In Mr. Greene's case, his phone bill had jumped by a not-so-small
$39.95 a month for no apparent reason. The source of the charges
was ESBI, Enhanced Services Billing, Inc., which actually shares
offices with its owner, Billing Services Group Inc., a subsidiary
of Billing Services Limited, which is headquartered in Bermuda,
and which reported revenues of $144.30 million (Bermuda dollars
are pegged to the US dollar 1-to-1.) Billing Services Limited has
four employees registered in Bermuda. Calls to their media and
public relations person were not returned in time for this
article.
Mr. Greene called ESBI, but they refused to give him back his
money. He eventually got his phone company, Frontier
Communications, to block the charges. He never got his money back.
"It is outrageous," said Mr. Greene. "You look online and you see
all these complaints. It's stealthy, because ESBI don't have to
bill for themselves. You don't find out about this until you've
been stung."
As he dug into this thing, Mr. Greene found the peculiar contours
of this aspect of "gotcha capitalism".
"Frontier can't say 'no'. As long as it appears to them to be
authorized, they have to allow it on your bill. The F.C.C. law
requires them to allow third party billing."
Cramming is big business and the crammers use a variety of tricks
to gain "authorized" payments. A favorite is the use of small, and
hard to find, print on an online sweepstakes, quiz or game.
But, some unscrupulous merchants will just invent a charge and
apply it to millions of the unsuspecting and collect as much
revenue as they can before they're shut down.
And so, why do the phone companies allow this? Because they are
paid fees by crammers, and the middlemen like ESBI, to use their
billing systems.
In Pine Bush, Hal Jay Greene took the next step. He called Giskan,
Solotaroff, Anderson & Stewart, a Manhattan law firm that has been
investigating ESBI and the cramming scams.
From that call, he became the lead plaintiff in a class action
lawsuit against both ESBI and Frontier.
"We filed for the lawsuit. It's a class action lawsuit. Once
you're recognized as a class, then you can look for other members
of that class and try to determine if there's been malfeasance."
Oren Giskan, Esq., of Giskan, Solotaroff, Anderson & Stewart says,
"We think these practices are outrageous, and we hope that this
lawsuit will put an end to them."
Stefanie Schifano, spokesperson for Frontier said, "Frontier does
not comment on any pending litigation."
The Billing Services Group Web site has the following proud boast
posted prominently: "Don't take a chance with your business, let
BSG grow your online presence with powerful and innovative payment
solutions. Over 20 years, we have become a leader in payments for
telecom and online merchants with best in class solutions
customized to fit our clients' needs."
Mr. Giskan can be reached at:
Oren S. Giskan, Esq.
GISKAN, SOLOTAROFF, ANDERSON & STEWART
11 Broadway, Suite 2150
New York, New York 10004
Telephone: 212-847-8315
Facsimile: 646-520-3237
E-mail: ogiskan@gslawny.com
EUROPEAN UNION: Carriers Plan Suit Over Ash-Related Losses
----------------------------------------------------------
Air Transport Intelligence News reports European regional carriers
are to take legal steps to recover losses incurred during the ash-
related airspace closures over the continent earlier this year.
The European Regions Airline Association, at its annual general
assembly in Barcelona last week, stated that it was "outraged" at
the "failure" of politicians and regulators to provide timely
compensation over the matter.
It says that its airline and airport directors have "agreed . . .
to recover financial damages through legal action".
"Europe's politicians have sat on their hands for far too long on
this issue," says association president Antonis Simigdalas.
"Airlines have now lost patience and have been forced to seek
alternative legal solutions to recover the additional costs they
incurred."
ERA's directorate has been instructed to explore "any opportunity"
for initiating class action to recover damages.
FOREST ENTERPRISES: May Face Class Action Over Grower Loans
-----------------------------------------------------------
Kate Kachor at InvestorDaily reports a litigator acting on behalf
of Forest Enterprises Australia investors has indicated there is
enough evidence to support a class action against the failed
agribusiness group.
Legal firm Macpherson + Kelley Lawyers (M+K) has sent out letters
to the receivers, administrators and the former directors of FEA
and its responsible entity FEA Plantations Ltd.
"We now have what we believe is a soundly based claim on behalf of
all investors who invested in calendar year 2008 or 2009," M+K
principal Ron Willemsen said.
"Those letters are going out and we're excepting instructions from
lots of new people presently and it's most likely that will result
in a class action taking shape a few months down the track."
Mr. Willemsen said the potential class action is likely to focus
on challenging the validity of the grower/investor loans and will
seek compensation through insurance policies held by FEA
Plantations Ltd and the company's directors.
To date, the number of growers who invested in the 2008 managed
investment scheme (MIS) stands at 2813, while 565 growers invested
in the firm's 2009 scheme.
The amount raised by FEA through the MIS in 2008 was $119 million
and in 2009 it was $16.3 million.
Meanwhile, FEA's administrator BRI Ferrier and its receiver
Deloitte are set to battle it out in court over unresolved
disputes.
"As we have proceeded with the voluntary administration, we have
met with objection by the receivers that we are exercising rights
or claiming assets to which they are entitled as falling within
the terms of the banks' securities," the latest BRI Ferrier report
to creditors said.
The receivers are seeking authority to terminate lease agreements,
the report said.
The receivers' applications were set down for hearing on Sept. 29
in the Victorian Registry of the Federal Court of Australia.
FEA went into voluntary administration in April this year.
GILDAN ACTIVEWEAR: Judge Orders Plaintiffs' Law Firms to Diversify
------------------------------------------------------------------
Andrew Longstreth, writing for The American Lawyer, reports when
it comes to diversity in the bar, most of the attention is paid to
large law firms. But a New York federal judge appears intent on
shining the light on plaintiffs firms.
In an order signed Sept. 20, Manhattan U.S. District Court Judge
Harold Baer ordered two firms serving as co-lead counsel in a
securities class action against Gildan Activewear -- Labaton
Sucharow and Robbins Geller Rudman & Dowd -- to "make every
effort" to assign at least one minority and one woman to the case.
"This proposed class includes thousands of participants, both male
and female, arguably from diverse backgrounds, and it is therefore
important to all concerned that there is evidence of diversity, in
terms of race and gender, in the class counsel I appoint," wrote
Judge Baer.
Mr. Longstreth said he left messages with lawyers at Labaton and
Robbins Geller but didn't hear back.
The timing was a little strange. Judge Baer appointed the
plaintiffs firms to lead the case two years ago, and in August
they submitted an unopposed motion for a preliminary settlement.
(The settlement agreement was made in conjunction with two other
proceedings in Canada.) What remains are largely administrative
functions and a hearing for preliminary approval of the
settlement.
Mr. Longstreth said he hoped to discuss Judge Baer's order with
him directly, but a spokeswoman in his chambers said he was out
last week. From what The American Lawyer gathers, Judge Baer has
made supporting diversity a goal during his tenure on the bench.
Indeed, in his order in the Gildan case, he referenced a decision
he made in a case called In re J.P. Morgan Chase Cash Balance
Litigation in which he required co-lead counsel to assign one
woman and one minority with requisite experience to the case.
HARTFORD FIN'L: Gets Final Court Okay of $72.5 Million Settlement
-----------------------------------------------------------------
Matthew Sturdevant, writing for the Hartford Courant, reports a
federal judge in Bridgeport approved a $72.5 million settlement
last week in a national class-action lawsuit alleging that The
Hartford fraudulently kept millions in fees that should have gone
to accident victims.
In the next two months, prorated checks will be sent to more than
21,000 people -- including about 1,000 in Connecticut -- with an
average payment of $2,200, according to lawyers who argued for the
plaintiffs. U.S. District Judge Janet C. Hall approved the
settlement Sept. 21 after preliminary approval in June.
The 2005 case involves plaintiffs who were injured and eligible
for either personal-injury or workers' compensation claims from
The Hartford Financial Services Group. Rather than receiving lump-
sum payments, they received "structured settlements," or payments
over time. Annuities were used to make the payments, and the
annuities were provided by the property-casualty insurer's life-
insurance division, Hartford Life.
Plaintiffs' attorneys argued that The Hartford told the
beneficiaries the value of a settlement without mentioning that
the company was keeping at least 15 percent for fees, taxes and
profit. The company disagrees.
A spokeswoman for The Hartford Financial Services Group, Pamela
Hill Rekow, said, "We are confident that every claimant received
the amount that was specified in the structured settlement
agreements and are settling to avoid the uncertainties and costs
of continued litigation."
Speaking broadly of class-action lawsuits, the tort system has
many such suits that are larger than this one at any given time,
said Robert P. Hartwig, president of the Insurance Information
Institute, an industry think tank.
"Relative to the size of The Hartford overall, this is something
that they can manage," Mr. Hartwig said, "and they're doing this
in the interest, of course, of avoiding the additional costs of
protracted litigation and the uncertainty that's associated with
that litigation. In the world today, very often, these cases end
up being settled."
Payments will vary, according to Stamford-based Silver Golub &
Teitell LLP, one of several law firms representing the plaintiffs.
"We hope to begin making distributions to class members in
approximately 30 to 45 days," attorney David S. Golub said in a
prepared statement.
HYUNDAI MOTOR: Recalls 140,000 Sonata Sedans Over Steering Defects
------------------------------------------------------------------
In-Soo Nam, writing for The Wall Street Journal, reports that
Hyundai Motor Co. said it will recall about 140,000 Sonata sedans
in the U.S. because of a defect that could result in reduced or
complete loss of steering ability.
Hyundai Motor America is voluntarily recalling Sonatas built
between Dec. 11, 2009, and Sept. 10, 2010, the car maker said
Sunday.
"Hyundai dealers will inspect the steering-column intermediate-
shaft universal-joint connections for proper assembly and torque
and make corrections if needed," the company said. "Hyundai has
informed the National Highway Traffic Safety Administration and is
voluntarily initiating this action to ensure the safety and
quality of vehicles and the continued satisfaction of its
customers."
Hyundai Motor, South Korea's largest auto maker by sales, said it
is aware of fewer than 10 vehicles with the steering issue. No
accidents or injuries had occurred as a result of this condition,
the company said.
JAKKS PACIFIC: Awaits Final Approval of Securities Suit Accord
--------------------------------------------------------------
JAKKS Pacific, Inc. awaits the final approval of the settlement
agreement resolving the matter In re JAKKS Pacific, Inc.
Shareholders Class Action Litigation, Civil Action No. 04-8807,
according to the company's Aug. 6, 2010, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended June
30, 2010.
In November 2004, several purported class action lawsuits were
filed in the U.S. District Court for the Southern District of New
York:
(1) Garcia v. JAKKS Pacific, Inc. et al., Civil Action
No. 04-8807 (filed on Nov. 5, 2004),
(2) Jonco Investors, LLC v. JAKKS Pacific, Inc. et al.,
Civil Action No. 04-9021 (filed on Nov. 16, 2004),
(3) Kahn v. JAKKS Pacific, Inc. et al., Civil Action
No. 04-8910 (filed on Nov. 10, 2004),
(4) Quantum Equities L.L.C. v. JAKKS Pacific, Inc. et al.,
Civil Action No. 04-8877 (filed on Nov. 9, 2004), and
(5) Irvine v. JAKKS Pacific, Inc. et al., Civil Action
No. 04-9078 (filed on Nov. 16, 2004).
The complaints in the Class Actions alleged that defendants issued
positive statements concerning increasing sales of the company's
WWE licensed products which were false and misleading because the
WWE licenses had allegedly been obtained through a pattern of
commercial bribery, the company's relationship with the WWE was
being negatively impacted by the WWE's contentions and there was
an increased risk that the WWE would either seek modification or
nullification of the licensing agreements with the company.
Plaintiffs also alleged that the company misleadingly failed to
disclose the alleged fact that the WWE licenses were obtained
through an unlawful bribery scheme.
The plaintiffs in the Class Actions were described as purchasers
of the company's common stock, who purchased from as early as Oct.
26, 1999 to as late as Oct. 19, 2004.
The Class Actions sought compensatory and other damages in an
undisclosed amount, alleging violations of Section 10(b) of the
Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder by each of the defendants (namely the company and
Messrs. Friedman, Berman and Bennett), and violations of Section
20(a) of the Exchange Act by Messrs. Friedman, Berman and Bennett.
On Jan. 25, 2005, the Court consolidated the Class Actions under
the caption In re JAKKS Pacific, Inc. Shareholders Class Action
Litigation, Civil Action No. 04-8807. On May 11, 2005, the Court
appointed co-lead counsels and provided until July 11, 2005 for an
amended complaint to be filed; and a briefing schedule thereafter
with respect to a motion to dismiss.
The motion to dismiss was fully briefed and argument occurred on
Nov. 30, 2006. The motion was granted in January 2008 to the
extent that the Class Actions were dismissed without prejudice to
plaintiffs' right to seek leave to file an amended complaint based
on statements that the WWE licenses were obtained from the WWE as
a result of the long-term relationship with WWE.
A motion seeking leave to file an amended complaint was granted
and an amended complaint filed. Briefing was completed with
respect to a motion to dismiss that was scheduled for argument in
October 2008.
The Court adjourned the argument date.
The parties notified the Court that an agreement to resolve this
action was reached.
In November 2009, a motion was filed by plaintiffs' counsel for
preliminary approval of this agreement, which provides for the
matter to be settled for $3.9 million, without any admission of
liability on the part of the company, or its officers and
directors.
On June 29, 2010, the Court found preliminary that the settlement
was fair and scheduled the Fairness Hearing for Oct. 19, 2010.
JAKKS Pacific, Inc. -- http://www.jakks.com/-- designs and
markets toys and consumer products, with a wide range of products
that feature some of the most popular brands and children's toy
licenses in the world.
MARINER ENERGY: Inks MOU to Settle Two Merger-Related Suits
-----------------------------------------------------------
Mariner Energy, Inc., has entered into a memorandum of
understanding to resolve two suits filed in connection with its
planned merger with Apache Corporation, according to the company's
Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2010.
On April 15, 2010, Mariner and Apache Corporation disclosed that
they entered into a definitive agreement pursuant to which Apache
will acquire Mariner in a stock and cash transaction. The
Agreement and Plan of Merger dated April 14, 2010, by and among
Apache, Mariner and ZMZ Acquisitions LLC, a wholly owned
subsidiary of Apache -- Merger Sub -- contemplates a merger --
Merger -- whereby Mariner will be merged with and into Merger Sub,
with Merger Sub surviving the Merger as a wholly owned subsidiary
of Apache.
Subsequent to the announcement of the merger with Apache, two
stockholder lawsuits styled as class actions were commenced on
behalf of Mariner stockholders challenging the merger. The suit
styled City of Livonia Employees' Retirement System v. Mariner
Energy, Inc., et al, Cause No. 2010-24355, was filed in the 334th
Judicial District Court of Harris County, Texas against Mariner
and its directors.
Plaintiff alleges that the Mariner directors breached their
fiduciary duties by agreeing to sell the company through an unfair
process and at an unfair price, and that Mariner aided and abetted
those breaches of fiduciary duties. Plaintiff seeks to enjoin the
transaction and to be awarded attorney's fees.
The matter Southeastern Pennsylvania Transportation Authority v.
Scott D. Josey, et al, cause No. 5427-VCP, was filed in the Court
of Chancery of the State of Delaware against Mariner, its
directors, certain Mariner officers, Apache and Merger Sub.
Plaintiff alleges that the Mariner directors breached their
fiduciary duties by agreeing to sell the company through an unfair
process and at an unfair price, and by agreeing to the vesting of
certain restricted stock held by Mariner management. Plaintiff
also alleges that Apache and Merger Sub aided and abetted in those
breaches of fiduciary duties. Plaintiff seeks to enjoin the merger
and to be awarded attorney's fees.
On Aug. 1, 2010, the parties to the Delaware action entered into a
memorandum of understanding, which, when reduced to a settlement
agreement, is intended to be a final resolution of that action.
Also on Aug. 1, 2010, the parties to the Texas action agreed to be
bound by the memorandum of understanding with respect to that
action. In connection with the settlement, and in exchange for
the releases, Apache and Mariner agreed to, and on Aug. 2, 2010
Apache, Mariner and Merger Sub did, amend the Merger Agreement to
eliminate the termination fee in the event that Mariner terminates
the Merger Agreement in order to enter into a "superior proposal"
with another party and to make certain additional disclosures in
the proxy statement/prospectus for the transaction filed with the
Securities and Exchange Commission.
Additionally, in the event that any proceedings regarding
appraisal rights under Section 262 of the Delaware General
Corporation Law are commenced following the merger, Apache and
Mariner have waived and will not present any argument that shares
of Mariner restricted stock granted pursuant to Mariner's 2008
Long-Term Performance-Based Restricted Stock Program will be
counted in determining the total number of Mariner shares
outstanding in such proceeding.
Subject to the completion of agreed-upon confirmatory discovery,
the parties will negotiate in good faith to execute a settlement
agreement to present to the Court of Chancery of the State of
Delaware.
Pursuant to the settlement, the Delaware action will be dismissed
with prejudice on the merits, the plaintiffs in the Texas action
will voluntarily dismiss that action with prejudice, and all
defendants will be released from any and all claims relating to,
among other things, the merger, the Merger Agreement and any
disclosures made in connection therewith. The settlement is
subject to customary conditions, including consummation of the
merger, completion of certain confirmatory discovery, class
certification, and final approval by the Court of Chancery of the
State of Delaware. The settlement will not affect the form or
amount of the consideration to be received by Mariner stockholders
in the merger.
Mariner Energy, Inc. -- http://www.mariner-energy.com/-- is an
independent oil and gas exploration, development, and production
company headquartered in Houston, Texas, with principal operations
in the Permian Basin, Gulf Coast and Gulf of Mexico.
MICRUS ENDOVASCULAR: Defends "Sauser" Suit Over J&J Merger
----------------------------------------------------------
Micrus Endovascular Corporation defends a putative class action
entitled Robert Sauser v. Micrus Endovascular Corporation et al.,
Case No. 110-CV-176769, arising out of its merger with Johnson &
Johnson, according to the company's Aug. 6, 2010, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2010.
On July 13, 2010, a plaintiff filed a putative class action in the
Superior Court of the State of California, Santa Clara County.
The defendants are the company and the members of its board of
directors.
The complaint alleges that the individual defendants breached
their fiduciary duties to our stockholders in connection with the
merger agreement and the transactions contemplated thereby.
Specifically, the complaint alleges, among other things, that the
proposed transaction arises out of a flawed process and that the
individual defendants engaged in self-dealing in relation to the
merger agreement, which resulted in a failure to maximize
shareholder value.
The suit further alleges that we aided and abetted the individual
defendants' breaches of fiduciary duties and that the
consideration offered in the merger does not fairly reflect our
true value. The plaintiff seeks, among other things, an order
enjoining the consummation of the merger, attorneys' fees and
costs.
On Sept. 14, 2010, the company disclosed that its stockholders
approved a proposal to adopt the merger agreement which provides
that Micrus is to become a wholly-owned subsidiary of Johnson &
Johnson, among other business, at its 2010 annual meeting of
stockholders. Approximately 99% of the votes cast -- representing
nearly 71% percent of Micrus Endovascular's shares outstanding --
voted to adopt the merger agreement.
Micrus Endovascular Corporation -- http://www.micruscorp.com/--
develops, manufactures and markets implantable and disposable
medical devices for use in the treatment of cerebral vascular
diseases. Micrus Endovascular products are used by interventional
neuroradiologists, interventional neurologists and endovascularly
trained neurosurgeons to treat both cerebral aneurysms responsible
for hemorrhagic stroke and intracranial atherosclerosis, which may
lead to ischemic stroke. Hemorrhagic and ischemic stroke are both
significant causes of death and disability worldwide. The Micrus
Endovascular product lines enable physicians to gain access to the
brain in a minimally invasive manner through the vessels of the
arterial system. Micrus Endovascular's proprietary, three-
dimensional microcoils anatomically deploy within the aneurysm,
forming a scaffold that conforms to a wide diversity of aneurysm
shapes and sizes. Micrus Endovascular also sells stents, balloon
catheters, access devices such as guide catheters, microcatheters,
guidewires and accessory products used in conjunction with its
microcoils.
MICRUS ENDOVASCULAR: Defends "Houston" Lawsuit Over J&J Merger
--------------------------------------------------------------
Micrus Endovascular Corporation defends a putative class action
entitled Claire Houston v. John Kilcoyne et al., Case No. 110-CV-
177667, in connection with its merger with Johnson & Johnson,
according to the company's Aug. 6, 2010, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended June
30, 2010.
On July 19, 2010, a plaintiff filed a putative class action in the
Superior Court of the State of California, Santa Clara County.
The defendants are the company and the members of its board of
directors, Johnson & Johnson and Cope Acquisition Corp.
This action alleges that the individual defendants breached their
fiduciary duties to our stockholders in connection with the
merger.
Specifically, the complaint alleges, among other things, that the
proposed transaction arises out of a flawed process, that the
individual defendants failed to maximize shareholder value and
that the consideration offered in the merger is inadequate and
does not fairly reflect our true value.
The plaintiff also alleges that the individual defendants agreed
to no-solicitation and termination provisions in the merger
agreement in violation of our board's fiduciary duties. The suit
further alleges that we and the J&J Defendants aided and abetted
the individual defendants' breaches of fiduciary duties.
The plaintiff seeks, among other things, an order enjoining the
Micrus Defendants and the J&J Defendants from consummating the
merger, damages in the event the merger is consummated prior to
the court's entry of a final judgment, and attorneys' fees and
costs.
On Sept. 14, 2010, the company disclosed that its stockholders
approved a proposal to adopt the merger agreement which provides
that Micrus is to become a wholly-owned subsidiary of Johnson &
Johnson, among other business, at its 2010 annual meeting of
stockholders. Approximately 99% of the votes cast -- representing
nearly 71% percent of Micrus Endovascular's shares outstanding --
voted to adopt the merger agreement.
Micrus Endovascular Corporation -- http://www.micruscorp.com/--
develops, manufactures and markets implantable and disposable
medical devices for use in the treatment of cerebral vascular
diseases. Micrus Endovascular products are used by interventional
neuroradiologists, interventional neurologists and endovascularly
trained neurosurgeons to treat both cerebral aneurysms responsible
for hemorrhagic stroke and intracranial atherosclerosis, which may
lead to ischemic stroke. Hemorrhagic and ischemic stroke are both
significant causes of death and disability worldwide. The Micrus
Endovascular product lines enable physicians to gain access to the
brain in a minimally invasive manner through the vessels of the
arterial system. Micrus Endovascular's proprietary, three-
dimensional microcoils anatomically deploy within the aneurysm,
forming a scaffold that conforms to a wide diversity of aneurysm
shapes and sizes. Micrus Endovascular also sells stents, balloon
catheters, access devices such as guide catheters, microcatheters,
guidewires and accessory products used in conjunction with its
microcoils.
MIRANT CORP: Motion to Dismiss Four Amended Complaints Pending
--------------------------------------------------------------
Mirant Corporation's motion to dismiss four amended complaints
arising out of its merger with RRI Energy, Inc., remains pending,
according to the company's Aug. 6, 2010, Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended June
30, 2010.
Mirant and its directors have been named as defendants in four
putative stockholder class actions filed in the Superior Court of
Fulton County, Georgia, in connection with the merger of Mirant
and RRI Energy. The suits are:
1. Rosenbloom v. Cason, et al., No. 2010CV184223, filed
April 13, 2010;
2. The Vladmir Gusinsky Living Trust v. Muller, et al.,
No, 2010CV184331, filed April 15, 2010;
3. Ng v. Muller, et al., No. 2010CV184449, filed April 16,
2010; and
4. Bayne v. Muller, et al., No. 2010CV184648, filed
April 21, 2010.
The plaintiffs seek to enjoin the merger, alleging that Mirant's
directors breached their fiduciary duties by failing to maximize
the value to be received by Mirant stockholders, by agreeing to
certain deal protection measures, and by improperly considering
certain directors' personal interests in the transaction, such as
future employment by the post-merger entity, in determining
whether to enter into the Merger Agreement.
Three of the complaints assert a claim of aiding and abetting
breach of fiduciary duty against Mirant and RRI Energy; the
fourth, Bayne, asserts this claim against RRI Energy alone.
In three of the four actions, the plaintiffs have amended their
complaints to add allegations that the defendants breached their
fiduciary duties by failing to disclose certain information in the
preliminary joint proxy statement/prospectus included in the Form
S-4 Registration Statement related to the merger that RRI Energy
filed on May 28, 2010, and amended on July 6, 2010.
In addition to an order enjoining the transaction, the plaintiffs
variously seek, among other things: additional disclosures
regarding the merger; an accounting to plaintiffs or imposition of
a constructive trust in favor of plaintiffs for all damages
allegedly caused by defendants and for all profits and any special
benefits obtained as a result of defendants' purported breaches of
fiduciary duties; rescission of the merger, if consummated, or an
award to plaintiff of recessionary damages; and attorneys' fees
and expenses.
Mirant and its directors have filed motions to dismiss each of the
four amended complaints in their entirety for failure to state a
claim.
Mirant Corporation -- http://www.mirant.com/-- is an energy
company that produces and sells electricity in the United States.
Mirant owns or leases more than 10,000 megawatts of electric
generating capacity. The company operates an asset management and
energy marketing organization from its headquarters in Atlanta.
MOLENAAR LLC: Recalls 315,000 Electroluminescent Night Lights
-------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Molenaar LLC of Willmar, Minn., announced a voluntary recall of
about 315,000 3lectroluminescent night lights. Consumers should
stop using recalled products immediately unless otherwise
instructed.
The night lights can become hot to the touch and melt, resulting
in risk of possible shock or fire.
The firm is aware of four incidents of the night lights melting,
resulting in minor property damage. No injuries have been
reported.
This recall involves two models of the night lights are being
recalled. One model, Model No. 2019, is shaped like a house. The
other, Model No. 2017, is square-shaped with a rounded top. The
night lights glow green when plugged into an electrical outlet.
"71980 U.S.A." is molded into the night light's back panel, just
above the brass outlet prongs. The night lights may have the
brand names or logos of various companies printed on the front.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml10/10353.html
The recalled products were manufactured in United States and were
distributed free as promotional products by various companies
imprinted with various company names between October 2001 and
November 2009.
Consumers should immediately stop using the recalled night lights
and throw them away. For additional information, contact Molenaar
at (877) 719-4442 between 7:00 a.m. and 5:00 p.m., Central Time,
Monday through Friday or visit the firm's Web site at
http://www.miline.com/
NOVATEL WIRELESS: Petition to Appeal Certification Order Pending
----------------------------------------------------------------
Novatel Wireless, Inc.'s petition for permission to appeal the
order granting class certification in the matter In re Novatel
Wireless Securities Litigation, is pending, according to the
company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2010.
On Sept. 15, 2008, and Sept. 18, 2008, two putative securities
class action lawsuits were filed in the U.S. District Court for
the Southern District of California on behalf of persons who
allegedly purchased the company's stock between Feb. 5, 2007 and
Aug. 19, 2008.
On Dec. 11, 2008, these lawsuits were consolidated into a single
action entitled Backe v. Novatel Wireless, Inc., et al. , Case No.
08-CV-01689-H (RBB) (Consolidated with Case No. 08-CV-01714-H
(RBB)) (U.S.D.C., S.D. Cal.).
In May 2010, the district court re-captioned the case In re
Novatel Wireless Securities Litigation.
The plaintiffs filed the consolidated complaint on behalf of
persons who allegedly purchased the company's stock between Feb.
27, 2007 and Nov. 10, 2008.
The consolidated complaint names the company and certain of its
current and former officers as defendants. The consolidated
complaint alleges generally that the company issued materially
false and misleading statements during the relevant time period
regarding the strength of its products and market share, its
financial results and its internal controls.
The plaintiffs are seeking an unspecified amount of damages and
costs. The court has denied defendants' motions to dismiss.
In May 2010, the court entered an order granting the plaintiffs'
motion for class certification, and the defendants filed a
petition for permission to appeal that order to the U.S. Court of
Appeals for the Ninth Circuit.
A ruling on the defendants' petition is forthcoming, and the
parties are currently engaged in discovery. Discovery in this
case is ongoing.
Novatel Wireless, Inc. -- http://www.novatelwireless.com/-- is a
leader in the design and development of innovative wireless
broadband access solutions based on 3G and 4G wireless
technologies. Novatel Wireless' Intelligent Mobile Hotspot
products, software, USB modems and embedded modules enable high-
speed wireless Internet access on leading wireless data networks.
The company delivers specialized wireless solutions to carriers,
distributors, OEMs and vertical markets worldwide. Headquartered
in San Diego, California, Novatel Wireless is listed on NASDAQ:
NVTL.
ORLEANS PARISH: Hearings Held on Class Suit Filed by Ex-Employees
-----------------------------------------------------------------
Alejandro de los Rios, writing for The Louisiana Record, reports
three motions were heard on Friday involving a class action suit
brought by former employees against the Orleans Parish School
Board (OPSB) in Orleans Parish Civil District Court.
New Orleans principal Eddy Oliver, teacher's aide Oscarlene Nixon
and OPSB custodian Mildred Goodwin lead the class of 7,500 current
and former OPSB employees who claim they were wrongfully
terminated after most of New Orleans' public schools were flooded
during hurricane Katrina.
On Friday, Judge Ethel Julien heard two defense and one plaintiff
motion.
New Orleans attorney Willie Zanders has filed a motion for Julien
to approve a master list of class members for notice purposes. Mr.
Zanders was granted leave to assemble a list of more than 8,000
former OPSB employees that were laid off or forced to retire
following Hurricane Katrina.
Assistant Attorney General Brent Hicks is representing the state
on behalf of its school boards. Mr. Hicks filed a motion to quash
subpoenas Zanders sent to school superintendents in St. Bernard,
St. Tammany, Plaquemines, Washington and Jefferson Parishes
regarding the effects on those school boards following Hurricanes
Katrina and Rita.
The state claims those records -- including staff lists following
the hurricanes, their 2005-2006 school year budgets and pay
records to employees -- are irrelevant in this case because the
state did not appropriate any school from those Parishes.
New Orleans attorney Renee Smith is representing the OPSB. She
filed a motion for exception of vagueness, which was supported by
the state, in regards to the plaintiff's fifth supplemental
petition for damages. The motion claims the plaintiffs did not
list a specific act of conspiracy in their cause of action.
The plaintiffs alleged, "the OPSB and the State Defendants
conspired to and, in fact, committed wrongful conduct . . .
including wrongful termination."
In opposition to the defendant's exception, the plaintiffs argued
that the defense "is not entitled to details beyond those
necessary to place them on notice of the causes of action."
The plaintiffs argued that the defense's exception is "intended to
delay" proceedings, but also filed a motion to continue the
hearing.
The state argued that the plaintiffs contradict themselves. It
also argued that it had been trying to work with the plaintiffs to
settle the issue of the case management order "to no avail."
Mr. Smith also filed a cross-claim on behalf of the OPSB against
the state. The cross-claim alleges that it was forced to
terminate the plaintiffs because, when the RSD took over the
majority of the OPSB's schools, there were no longer enough
positions available to rehire all the OPSB employees after
hurricanes Katrina and Rita.
The OPSB also stated that, though it denies all claims against
them brought on by the defendants, "any such claims are due in
whole or in part to the actions or other fault of cross-claim
defendants, the State Defendants."
The case was originally filed as an injunctive relief for Mr.
Oliver, Ms. Nixon and Ms. Goodwin, in which they claimed that the
OPSB's proposed plan to turn several of its schools into quasi-
charter schools would "end public schools in New Orleans."
The initial request, which essentially asked that teachers that
were hired by the OPSB be retained in schools that were taken over
by the RSD, was denied.
But in a September 2007 ruling, Judge Julien acknowledged other
causes of action including wrongful termination and breach of
contract.
In December 2008, Judge Julien certified the class as "all current
or former employees of the OPSB prior to Hurricane Katrina." The
class includes principals, teachers, paraprofessionals, central
office administrators, secretaries, social works, food service,
maintenance and other service workers that had been hired by the
OPSB.
Orleans Parish Case 2005-12244
REDFLEX TRAFFIC: ATS Removes "Jadeja" Complaint to N.D. Calif.
--------------------------------------------------------------
S.D. Jadeja, individually and on behalf of others similarly
situated v. Redflex Traffic Systems, Inc., Redflex Traffic Systems
(California), Inc., American Traffic Solutions, Inc., et al., Case
No. CIV 498076 (Calif. Super. Ct., San Mateo Cty.), was filed
on August 19, 2010. The plaintiff brings claims on behalf of all
individuals who received traffic citations for a red light
violation under California Vehicle Code Sections 21453(a) or
24153(b), issued by a city or state agency utilizing an automated
detection system pursuant to an illegal contract involving
contingency fee or "cost neutral" provision. The Plaintiff says
the defendants, who operate automated traffic enforcement systems
under contracts with various municipalities throughout California,
violated California Vehicle Code Section 21455.5(g)(1), which
makes illegal contracts for automated traffic systems that include
an incentive provision under which the private contractor or
operator receives a fee that is contingent upon the number of
traffic tickets issued.
Plaintiff alleges to have suffered actual harm and loss of money
or property as a result of defendants' unlawful business acts and
practices.
The Complaint says it does not seek any relief from the underlying
traffic citations, nor does it seek to overturn criminal
convictions. The action merely asks for restitution and damages
related to the amounts obtained by defendants under the illegal
contracts.
Defendant American Traffic Solutions states that because the named
Plaintiff is a citizen of a state different from a defendant in
the action and the amount exceeds the sum of $5,000,000, the U.S.
District Court for the Northern District of California has
original jurisdiction under 28 U.S.C. Sec. 1332(d)(2)(a). On
September 22, 2010, American Traffic Solutions removed the lawsuit
to this Court, and the Clerk assigned Case No. 10-cv-04287 to the
proceeding.
American Traffic Solutions' Notice of Removal says that Defendants
Redflex Traffic Systems and Redflex Traffic Systems (California),
Inc., have filed their Notice of Appearance with the San Mateo
County Court.
The Plaintiff is represented by:
Bruce L. Simon, Esq.
William J. Newsom, Esq.
PEARSON, SIMON, WARSHAW & PENNY, LLP
44 Montgomery Street, Suite 2450
San Francisco, CA 94104
Telephone: (415) 433-9000
- and -
P. Terry Anderlini, Esq.
Merri G. Emerick, Esq.
ANDERLINI & EMERICK, LLP
411 Borel Ave., Suite 501
San Mateo, CA 94402
Telephone: (650) 242-4884
Defendant American Traffic Solutions is represented by:
Michael B. Brown, Esq.
Uzunma A. Kas-Osoka
STOEL RIVES LLP
500 Capitol Mall, Suite 1600
Sacramento, CA 95814
Telephone: (916) 447-0700
E-mail: mbbrown@stoel.com
uakas-osoka@stoel.com
Defendants Redflex Traffic Systems, Inc., and Redflex Traffic
Systems (California), Inc., are represented by:
Joseph E. Addiego III, Esq.
Fred B. Burnside, Esq.
DAVIS WRIGHT TREMAIN LLP
SIEMENS INDUSTRY: Recalls 2.2MM Siemens & Murray Circuit Breakers
-----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Siemens Industry Inc., of Alpharetta, Ga., announced a voluntary
recall of about 2.2 million Siemens and Murray Circuit Breakers,
Load Centers and Meter Combos. Consumers should stop using
recalled products immediately unless otherwise instructed.
The recalled circuit breakers have a spring clip that can break
during normal use, leading to a loss of force to maintain a proper
electrical connection in the panelboard. This can lead to
excessive temperature, arcing or thermal damage at the connection
point, and damage to the panelboard's electrical insulation and
can result in a fire, property damage, or personal injury.
Siemens has received one report of a circuit breaker spring clip
that broke during installation. No injuries have been reported.
This recall involves Siemens and Murray 15 through 50 AMP single
and double pole circuit breakers, load centers (circuit breakers
that come with an electrical panel), and meter combos (contain a
load center and a meter socket). "Siemens" or "Murray," date
codes 0610 or 0710 and the catalog number are printed on a label
on the side of the circuit breakers. Date codes between June 2010
through August 2010 are stamped on the inside of the metal box of
the load centers and meter combos. The catalog number for the
load centers and meter combos is printed on a label inside the
metal box door and on the packaging.
Product Date Codes Catalog Numbers
------ ---------- ---------------
Circuit Breakers 0610, 0710 Q115, Q120, Q130, Q215,
Q230, Q250, MP115, MP115U,
MP120, MP130, MP215,
MP230, MP230U, MP250
Load Centers 06/23/10 -
08/25/10 G2020B1100CP, 3030B1100CP,
G4040B1200CUSGP,
LC4040B1200P,
G3040B1200CP,
G3040L1200CP,
G4040B1200CP,
G3030B1150CP,
W3040B1200CP,
G1624L1125CP,
W4040B1200CP
Meter Combo 06/23/10 -
08/25/10 JA2040B1200SP
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml10/10354.html
The recalled products were manufactured in Mexico and sold through
the Home Depot, Lowes, other hardware and building supply stores
and numerous electrical distributors nationwide from June 2010
through August 2010 for between $2.50 to $235.
Consumers should immediately contact Siemens for a free inspection
by an electrician and a free replacement product. For additional
information, contact Siemens at (800) 756-6996 between 9:00 a.m.
and 5:00 p.m., Eastern Time, Monday through Friday or visit the
firm's Web site at http://www.usa.siemens.com/
TEXAS WINDSTORM: Lawmaker Revives Disputed Info Request
-------------------------------------------------------
Stephanie K. Jones at the Insurance Journal reports a Texas state
representative has issued a second request for information from
the Texas Windstorm Insurance Association regarding a $189 million
settlement in a class action lawsuit stemming from Hurricane Ike
that was previously denied by a Galveston County district court.
State Rep. Larry Taylor, a Republican who is on the House
Insurance Committee, is co-chair of Texas Joint Windstorm
Insurance Legislative Oversight Board and represents District 24
in Galveston County, originally submitted an open records request
to TWIA for information related to the class action lawsuit on
Sept. 8, 2010.
The suit was settled in mid-July between TWIA and some 2,400
Galveston County homeowners and TWIA insureds whose properties
were completely destroyed by the Sept. 13, 2008, hurricane.
A lawyer for plaintiffs in the class action, J. Steven Mostyn,
responded in a letter to TWIA CEO Jim Oliver requesting that the
association not release the information sought by Rep. Taylor.
Mr. Mostyn asserted that the information in the settlement is
confidential and suggested that Rep. Taylor was over-stepping his
authority as a state representative in requesting information
about a confidential settlement.
He also asserted that Rep. Taylor's reason for requesting the
information is politically motivated, as Mr. Mostyn is a well-
known political donor to the Democratic Party. Mr. Mostyn stated
in the letter that the timing of Rep. Taylor's request "strongly
suggests that he his using his position on the legislative
oversight committee for non-legislative political and partisan
purposes."
Information requested by Rep. Taylor in his original letter to
TWIA included identification of each claim and case covered by the
settlement, as well as amounts claimed for property damage, non-
economic loss, living expenses and attorneys' fees.
The 122nd Judicial District Court imposed a temporary restraining
order denying Rep. Taylor's original request. According to court
documents, the court held that the named plaintiffs in the case,
Joe and Jaquelyn Vardell -- who had applied to the court for a
temporary restraining order to prevent the release of information
-- would be "irreparably injured" by its release.
Specifically, the court said, "it appears that confidential and
personal information of the Plaintiffs will be produced by
Defendant TWIA pursuant to a letter of Representative Taylor if
TWIA is not enjoined. Once such information is produced, its
confidentiality will forever by lost and irretrievable."
On Sept. 17, Rep. Taylor issued a statement saying he has
submitted another open records request to TWIA regarding the
settlement.
"This request basically follows the information that I initially
requested of TWIA in a letter dated September 8, 2010, with a few
additions and some further clarification," Rep. Taylor said.
He explained that the settlement details are important for him and
his legislative colleagues "to know as we consider legislation to
improve how TWIA can handle these types of claims in the future
without the need for litigation by covered claimants. Having TWIA
policyholders wait for over two years to find out how much their
Windstorm Insurance is going to pay is not acceptable.
Additionally, if it is true that $86 million of TWIA funding was
used to pay attorneys, rather than rebuild people's property, that
too is unacceptable."
He stated that contrary to earlier reports his original request
did not seek "private information and it did not intend to.
However, to clarify and to make it perfectly clear, this Open
Records Request specifically states that, 'I am not seeking any
confidential information relating to any individual or corporate
policyholder, such as names, personal addresses, social security
numbers, or other such personally identifiable information'."
UNION CARBIDE: Wants Louisiana High Court to Overturn 12 Judgments
------------------------------------------------------------------
Steve Korris, writing for The Louisiana Record, reports chemical
company Union Carbide wants the Louisiana Supreme Court to reverse
12 judgments ranging from $750 to $3,500, in a personal injury
class action over a release that sent no one to any doctor.
St. Charles Parish District Judge Kirk Granier awarded damages for
headaches, runny noses, itchy eyes and mild nausea in an opening
"bellwether trial."
Enough cases remain to run the cost to millions, though Union
Carbide has enjoyed success in exposing the weakness of many
claims.
"All too often, class action claimants submit false claims,
assuming that their claims will never be scrubbed for any elements
of truth," David Bienvenu, Esq., of Baton Rouge wrote to the
Justices for Union Carbide.
James Babst, Esq., of New Orleans, on behalf of the U.S. Chamber
of Commerce, American Chemistry Council, Louisiana Association of
Business and Industry, and Louisiana Chemical Association, urged
the Justices to throw out the awards.
"The judgment below stands to set an astonishing precedent that a
person who starts sneezing or feels nauseous after short term
exposure to a chemical at a safe level can establish entitlement
to thousands of dollars of damages," Mr. Babst wrote.
"Class actions were intended only to serve as procedural devices,"
he wrote. "They were not designed to alter the merits of
underlying claims.
"It is precisely this sort of transfer of wealth from the
responsible corporate citizen to claimants who sustained little or
no injury that casts serious doubt on the fairness and integrity
of the judicial process."
For Louisiana Association for Justice, Bruce Dean, Esq., of
Metairie countered that the release was far more dangerous and
injurious than Union Carbide assumes.
He wrote that plaintiffs complied with discovery, subjected
themselves to examination under oath, and presented evidence to
satisfy their burden of proof.
The release happened at Union Carbide's plant at Taft, in 1998.
Roof drains failed in a storm, and water collected until the roof
collapsed.
Water poured into a vat of naphtha, a paint thinner.
According to class counsel Andrew Lemmon of Hahnville, 4.6 million
pounds of naphtha evaporated over 17 hours.
More than 2,000 individuals filed injury claims.
Among about 100 that Judge Granier picked for trial, 30 showed up
for depositions.
Most flunked the test, proving by their own words that they had no
claim.
Judge Granier granted summary judgment against 16, and Fifth
Circuit appeals judges in Gretna tossed out two more due to
contradictory testimony.
Union Carbide seeks to shed the 12 that remain.
At oral arguments on Sept. 9, Mr. Bienvenu asked the Justices to
draw a line between compensation and economic opportunism.
He said a class of roughly 2,000 was certified in 2004 or 2005.
Mr. Bienvenu called naphtha a sensory irritant and said it was an
odor, not a poison.
He said the symptoms were complaints of everyday life.
"This is not a medical event," Mr. Bienvenu said.
He said no plaintiff requested medical care, no plant employee
sought treatment, and no plaintiff missed an hour of work.
He told the Justices that if they affirm the judgments, "class
actions lines are going to expand from here to the Superdome."
When Mr. Lemmon rose, Justice Bernette Johnson asked the size of
the class.
"About eleven hundred as it stands now," Mr. Lemmon said.
Justice Marcus Clark asked if claims came from persons outside the
area and persons who weren't born.
Mr. Lemmon said they did, and he said the trial court dismissed
them.
Justice John Weimer said, "Why shouldn't those be dismissed in
some fashion prior?"
Mr. Lemmon said, "That's a good question and we struggled with it
as counsel in this case."
Justice Greg Guidry asked him to justify the dollar amounts.
Mr. Lemmon said experts testified and plaintiffs presented
evidence.
Justice Guidry said, "But four days of irritation, how is that
worth 15 hundred?"
Mr. Lemmon said, "Fifteen hundred for four days of burning eyes?
You couldn't pay me 15 hundred to stick a chemical in my eyes for
four days."
Justice Weimer said, "Nobody went to a doctor. It just doesn't
make sense that someone would be exposed and be in so much pain
and not go to a doctor."
Mr. Lemmon said a doctor can validate symptoms but people have to
suffer through it.
Justice Clark asked if there were blisters on the skin and throat.
Mr. Lemmon said, "That's essentially what it is."
Justice Clark asked if it went away in 12 or 24 hours for some,
and Mr. Lemmon said that was right.
On rebuttal, Mr. Bienvenu said, "There was no evidence of chemical
blisters or anything of that nature."
He said claims from people who weren't born were rejected because
Union Carbide moved for summary judgment.
"This isn't a situation where the system took care of itself," he
said.
Justice Johnson asked him if plaintiff attorneys processed all
claims, and he said yes.
The Justices took it under advisement.
VALERO ENERGY: Court Certifies "Injunction Class" in KS Suits
-------------------------------------------------------------
The U.S. District Court for the District of Kansas has certified
an "injunction class" covering nonmonetary relief but deferred
ruling on a "damages class," according to Valero Energy Corp.'s
Aug. 6, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2010.
Valero Energy Corp. continues to defend a lawsuit captioned In re:
Motor Fuel Temperature Sales Practices Litigation, MDL No. 1840;
Master Docket No. 1840, according to the company's Feb. 26, 2010,
Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended Dec. 31, 2009.
As of Feb. 26, 2010, the company was named in 21 consumer class
action lawsuits relating to fuel temperature. The company has
been named in these lawsuits together with several other
defendants in the retail and wholesale petroleum marketing
business.
The complaints, filed in federal courts in several states, allege
that because fuel volume increases with fuel temperature, the
defendants have violated state consumer protection laws by failing
to adjust the volume or price of fuel when the fuel temperature
exceeded 60 degrees Fahrenheit. The complaints seek to certify
classes of retail consumers who purchased fuel in various
locations. The complaints seek an order compelling the
installation of temperature correction devices as well as monetary
relief.
The federal lawsuits are consolidated into a multi-district
litigation case in the U.S. District Court for the District of
Kansas captioned In re: Motor Fuel Temperature Sales Practices
Litigation, MDL No. 1840; Master Docket No. 1840. Discovery has
commenced.
In May 2010, the court issued an order in response to the
plaintiffs' motion for class certification of only the Kansas
cases.
The court certified an "injunction class" covering nonmonetary
relief but deferred ruling on a "damages class." The defendants
have filed a petition to appeal the certification order.
Valero Energy Corp. -- http://www.valero.com/-- owns and operates
18 refineries located in the U.S., Canada and Aruba that produce
refined products, such as reformulated gasoline blendstock for
oxygenate blending, gasoline meeting the specifications of the
California Air Resources Board (CARB), CARB diesel fuel, low-
sulfur and ultra-low-sulfur diesel fuel, and oxygenates (liquid
hydrocarbon compounds containing oxygen).
WAL-MART STORES: Faces Class Suit Over ATM Fees in Texas
--------------------------------------------------------
Michelle Massey, writing for The Southeast Texas Record, reports a
Missouri resident is suing Wal-Mart after the store's ATM charged
him a fee in connection with his transaction.
Alleging violations of the Electronic Fund Transfer Act, Donald C.
Thomas, individually and on behalf of all other similarly
situated, filed suit against Wal-Mart Stores Inc. on Sept. 15 in
the Eastern District of Texas, Sherman Division.
Mr. Thomas states on July 25 he made an electronic fund transfer
at an ATM operated by Wal-Mart in Plano. He was charged a fee of
$1.50 in connection with the transaction. Thomas states there was
no notice posted regarding the fee.
The lawsuit claims other ATMs owned by Wal-Mart are in violation,
including ATMs located in Mansfield, Fort Worth, Houston, Pearland
and Galveston.
The proposed class will contain all individuals who were charged a
terminal fee at ATMs operated by Wal-Mart that had no notice
indicating that a fee would be charged.
The plaintiff is seeking class certification, an award of
statutory damages, court costs and attorney's fees.
The proposed class is represented by:
Emil Lippe, Jr., Esq.,
LAW OFFICES OF LIPPE & ASSOCIATES
600 N. Pearl Street, Suite # 2460
Dallas, TX 75201
Telephone: (214) 855-1850
Facsimile: (214) 720-6074
- and -
Bruce Carlson, Esq.
CARLSON LYNCH LTD.
231 Melville Lane
P.O. Box 367
Sewickley, PA 15143
Telephone: (412) 749-1677
Facsimile: (412) 749-1686
E-mail: bcarlson@carlsonlynch.com
U.S. District Judge Richard A. Schell is assigned to the case.
Case No. 4:10-cv-00472
WAMU PENSION PLAN: Hearing on $20MM Settlement Set for Oct. 29
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Keller Rohrback L.L.P. is issuing the following statement
regarding Buus, et al. v. WaMu Pension Plan:
LEGAL NOTICE:
If you participated in, and were entitled to accrue benefits in,
any of the following plans (referred to collectively as "the
Plans"), your rights may be affected by the settlement of a class
action lawsuit:
1. The WaMu Pension Plan (referred to as the "WaMu Plan")
immediately prior to January 1, 1987, and your accrued benefits
or pension benefits are based in whole or in part on the WaMu
Plan's cash balance formula, from January 1, 1987 to the
present;
2. The Great Western Retirement Plan (referred to as the "GW
Plan") immediately prior to January 1, 1997, and your accrued
benefits or pension benefits are based in whole or in part on
the cash balance formulas of the Great Western Retirement Plan
and/or the WaMu Plan, from January 1, 1997 to the present;
3. The Dime Bancorp Inc. Retirement Plan (referred to as the "Dime
Plan") immediately prior to April 1, 2002, and your accrued
benefits or pension benefits are based in whole or in part on
the WaMu Plan's cash balance formula, from April 1, 2002 to the
present;
4. The Pacific First Bank Retirement Plan (referred to as the "PFB
Plan") immediately prior to April 1, 1994, and your accrued
benefits or pension benefits are based in whole or in part on
the WaMu Plan's cash balance formula, from April 1, 1994 to the
present;
5. The H.F. Ahmanson & Company Retirement Plan (referred to as the
"Ahmanson Plan") immediately prior to July 1, 1999, and your
accrued benefits or pension benefits are based in part on the
WaMu Plan's cash balance formula, from July 1, 1999 to the
present;
6. The GW Plan immediately prior to January 1, 1998, and your
accrued benefits or pension benefits are based in whole or in
part on the WaMu Plan's cash balance formula, from January 1,
1998 to the present, but only with respect to such participants
not described in Section 2 of this paragraph;
and all beneficiaries, alternate payees (including spouses of
deceased Persons who were WaMu Plan participants), Representatives
and Successors-In-Interest (collectively, the "Settlement Class").
The proposed settlement has been preliminarily approved by a
federal court in Seattle. If the settlement receives final
approval, it would resolve a class action lawsuit alleging failure
to provide notice of reduction in rate of benefit accrual and
other alleged violations of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), in connection with the
Plans identified above. The terms of the proposed settlement are
contained in a Settlement Agreement, dated June 29, 2010, which is
available at http://www.kellersettlements.com/
The proposed Settlement Agreement provides for a payment of $20
million and other consideration to settle all claims against the
defendants. The proceeds, minus the expenses described in the
Settlement Agreement (which include notice and administrative
expenses, Court-approved attorneys' fees and expenses and case
contribution awards to the plaintiffs who brought this lawsuit,
and other costs related to the Settlement) will be paid out of the
WaMu Plan and allocated to members of the Settlement Class who
were participants in the plans listed above when they joined the
WaMu Plan in accordance with a Plan of Allocation contained in the
Settlement Agreement, and as approved by the Court.
If you qualify and the proposed settlement is approved, you will
be entitled to receive such an allocation. If you received
notification of this settlement in the mail, you do not need to
submit a claim or take any other action unless you wish to object
to the settlement. However, if you did not receive such
notification in the mail and believe you may be a class member,
please call the toll-free number listed below to provide your
identifying information so that Lead Counsel may determine whether
you are, in fact, a member of the class. The United States
District Court for the Western District of Washington authorized
this Notice.
THE DISTRICT COURT WILL HOLD A HEARING AT 9:00 A.M. ON OCTOBER 29,
2010 TO DECIDE WHETHER TO APPROVE THE SETTLEMENT.
ADDITIONAL INFORMATION ABOUT THE PROPOSED SETTLEMENT IS AVAILABLE
AT WWW.KELLERSETTLEMENTS.COM; IN ADDITION, THE LAWYERS FOR THE
PLAINTIFFS HAVE ESTABLISHED A TOLL-FREE NUMBER, 1-866-612-5778 AND
EMAIL ADDRESS, INFO@WAMUPENSIONPLANSETTLEMENT.COM, TO ANSWER
QUESTIONS ABOUT THE SETTLEMENT. YOU MAY ALSO CONTACT PLAINTIFFS'
LEAD COUNSEL AT:
Lynn Lincoln Sarko, Esq.
Derek Loeser, Esq.
Karin Swope, Esq.
KELLER ROHRBACK L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101
Facsimile: (206) 623-3384
Please direct questions to Lead Counsel, and not to the Court.
DATED: SEPTEMBER 24, 2010
By Order of the Court on July 27, 2010
WATERS CORP: Plaintiff's Appeal on Dismissal of Suit Pending
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The appeal of the plaintiff on the ruling of the U.S. District
Court for the District of Massachusetts dismissing an amended
complaint against Waters Corp. remains pending, according to the
company's Aug. 6, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended July 3, 2010.
In November 2008, the City of Dearborn Heights Act 345 Police &
Fire Retirement System filed a purported federal securities class
action against the company, Douglas Berthiaume and John Ornell.
In January 2009, Inter-Local Pension Fund GCC/IBT filed a motion
to be appointed as lead plaintiff, which was granted.
In April 2009, lead plaintiff filed a complaint that alleges, on
behalf of a purported class of all persons who purchased stock of
the company between July 24, 2007 and Jan. 22, 2008, that between
those dates the company misrepresented or omitted material
information about its projected annual revenues and earnings, its
projected effective annual tax rate and the level of business
activity in Japan.
The amended complaint seeks to recover under Section 10(b) of the
Exchange Act, Rule 10b-5 thereunder and Section 20(a) of the
Exchange Act.
In March of 2010, the District Court granted the company's motion
to dismiss the case. Plaintiff filed an appeal of that dismissal
in April 2010. Oral argument is expected to be held in October
2010.
Waters Corporation -- http://www.waters.com/-- is an analytical
instrument manufacturer. Through its Waters Division, Waters
designs, manufactures, sells and services high-performance liquid
chromatography (HPLC), ultra performance liquid chromatography
(UPLC), referred to as liquid chromatography (LC), and mass
spectrometry (MS) instrument systems and support products,
including chromatography columns and other consumable products,
and post-warranty service plans. Through its TA Division (TA),
the company primarily designs, manufactures, sells and services
thermal analysis, rheometry and calorimetry instruments. The
company is also a developer and supplier of software-based
products that interface with the company's instruments, as well as
other manufacturers' instruments. Waters operates in two
segments: Waters Division and TA Division. In February 2009, the
company acquired Thar Instruments, Inc.
WENDELL HALL: Faces Suit Over Postcard-Only Policy for Inmates
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Jennifer Hensley, writing for NavarrePress.com, reports the
American Civil Liberties Union of Florida and the Florida Justice
Institute disclosed Sept. 21 the filing of a federal class action
lawsuit against Santa Rosa County Sheriff Wendell Hall.
The lawsuit challenges the constitutionality of the Sheriff's new
postcard-only policy for jail inmate mail.
The group maintains the new policy severely restricts the free
speech rights of inmates and their friends and family to
communicate with each other.
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