/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/101103.mbx C L A S S A C T I O N R E P O R T E R Wednesday, November 3, 2010, Vol. 12, No. 217 Headlines AGA MEDICAL: Being Sold for Too Little, Delaware Suit Claims BMW OF NORTH AMERICA: Accused in Tex. of Selling Defective Cars BROADCOM CORP: Court Gives Final Approval to $160MM Settlement CABLEVISION SYSTEMS: Sued for Breach of Contract CASH AMERICA: Appeals Court Allows Class Action to Move Forward CORINTHIAN COLLEGES: Zamansky Files Lead Plaintiff Motion FALCONSTOR SOFTWARE: Lead Plaintiff Deadline Set November 30 FEDERAL EXPRESS: Fleischer's Class Action Claim May Be Dismissed FIRSTENERGY CORP: Plaintiffs Appeal Decertification Ruling FIRSTENERGY CORP: Court Gives Preliminary OK to Settlement Pact FIRSTENERGY CORP: Geauga County Court Dismisses Suit GILLETTE COMPANY: Settles Class Action Lawsuit for $7.5 Million GRUNENTHAL GMBH: Faces Class Action Over Thalidomide Injuries PENNSYLVANIA: Accused of Abusing Powers of Eminent Domain QUEST DIAGNOSTICS: Defends Suit Over Defective NID Test Kits UBS FINANCIAL: Removes "Lewis" Labor Complaint to N.D. Calif. VITACOST.COM INC: Probe in Securities Class Action Continues WALGREEN CO: Motion to Dismiss Second Amended Complaint Granted WASHINGTON POST: Faces Shareholder Securities Class Action ********* AGA MEDICAL: Being Sold for Too Little, Delaware Suit Claims ------------------------------------------------------------ Courthouse News Service reports that AGA Medical is selling itself too cheaply through an unfair process to St. Jude Medical, for $1.3 billion, in a stock and cash transaction, shareholders claim in Chancery Court. A copy of the Complaint in Walling v. AGA Medical Holdings, Inc., et al., Case No. 5934 (Del. Ch. Ct.), is available at: http://www.courthousenews.com/2010/10/29/SCA.pdf The Plaintiff is represented by: Seth D. Rigrodsky, Esq. Brian D. Long, Esq. Gina M. Serra, Esq. RIGRODSKY & LONG, P.A. 919 N. Market Street, Suite 980 Wilmington, DE 19801 Telephone: (302) 295-5310 BMW OF NORTH AMERICA: Accused in Tex. of Selling Defective Cars --------------------------------------------------------------- Courthouse News Service reports that BMW sold 2007-2001 model cars with defective turbochargers, fuel pumps and software, and its replacement software caused more problems, which customers couldn't fix unless they installed after-market software that costs thousands of dollars and voids the warranty, a class action claims in Federal Court. A copy of the Complaint in Laurel v. BMW of North America, L.L.C., Case No. 10-cv-00346 (S.D. Tex.) (Jack, J.), is available at: http://www.courthousenews.com/2010/10/29/BMWCA.pdf The Plaintiff is represented by: Joseph M. Dunn, Esq. Neil A. Goro, Esq. David L. Rumley, Esq. Jeffrey G. Wigington, Esq. WIGINGTON RUMLEY DUNN, L.L.P. 601 Howard St. San Antonio, TX 78212 Telephone: (210) 487-7500 BROADCOM CORP: Court Gives Final Approval to $160MM Settlement -------------------------------------------------------------- The U.S. District Court for the Central District of California gave its final approval to the agreement settling a consolidated shareholder class action for $160.5 million, according to the company's Oct. 26, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2010. From August through October 2006 several plaintiffs filed purported shareholder class actions in the U.S. District Court for the Central District of California against Broadcom and certain of its current or former officers and directors. The suits are Bakshi v. Samueli, et al. (Case No. 06-5036 R (CWx)), Mills v. Samueli, et al. (Case No. SACV 06-9674 DOC R(CWx)), and Minnesota Bakers Union Pension Fund, et al. v. Broadcom Corp., et al. (Case No. SACV 06-970 CJC R (CWx)), (the Stock Option Class Actions). The essence of the plaintiffs' allegations is that the company improperly backdated stock options, resulting in false or misleading disclosures concerning, among other things, its business and financial condition. Plaintiffs also allege that the company failed to account for and pay taxes on stock options properly, that the individual defendants sold its common stock while in possession of material nonpublic information, and that the defendants' conduct caused artificial inflation in the company's stock price and damages to the putative plaintiff class. The plaintiffs assert claims under Sections 10(b) and 20(a) of the Exchange Act and Rule 10b-5 promulgated thereunder. In November 2006 the Court consolidated the Stock Option Class Actions and appointed the New Mexico State Investment Council as lead class plaintiff. In October 2007 the federal appeals court resolved a dispute regarding the appointment of lead class counsel. In March 2008 the district judge entered a revised order appointing lead class counsel. The lead plaintiff filed an amended consolidated class action complaint in late April 2008, naming additional defendants including certain current officers and directors of Broadcom as well as Ernst & Young LLP, the company's former independent registered public accounting firm. In October 2008 the district judge granted defendants' motions to dismiss with leave to amend. In October 2008 the lead plaintiff filed an amended complaint. In November 2008 defendants filed motions to dismiss. In February 2009 these motions were denied except with respect to E&Y and the former Chairman of the Audit Committee, which were granted with leave to amend, and with respect to the former Chief Executive Officer, which was granted without leave to amend. The lead plaintiff did not amend its complaint with respect to the former Chairman of the Audit Committee and the time period to do so has expired. With respect to E&Y, in March 2009 the district judge entered a final judgment for E&Y and against the lead plaintiff. The lead plaintiff has appealed the final judgment. In December 2009, the company agreed in principle to settle the Stock Option Class Actions. Under the proposed settlement, the claims against Broadcom and its current and former officers and directors will be dismissed with prejudice and released in exchange for a $160.5 million cash payment by Broadcom. The parties entered into a stipulation and agreement of settlement dated as of April 30, 2010. The company recorded the settlement amount as a one-time charge in 2009 and subsequent payment was made in June 2010 into a settlement fund for distribution pending final approval. On June 1, 2010, the District Court granted preliminary approval for the proposed settlement and entered an order providing for notice and a hearing in connection with the proposed settlement. On July 12, 2010 the lead plaintiff filed an unopposed motion for final approval of the proposed settlement. On Aug. 12, 2010, the District Court entered an order granting final approval of the Stock Option Class Actions settlement. On Sept. 10, 2010 a single purported Broadcom shareholder filed a notice of appeal of the order in the United States Court of Appeals for the Ninth Circuit. On Oct. 18, 2010, the Ninth Circuit dismissed the shareholder's appeal for failure to pay the filing fees. Broadcom Corporation -- http://www.broadcom.com/-- provides semiconductors for wired and wireless communications. Broadcom provides a portfolio of system-on-a-chip solutions to manufacturers of computing and networking equipment and, broadband access products and mobile devices. Its product portfolio includes solutions for the home (Broadband Communications), solutions for the hand (Mobile and Wireless) and solutions for network infrastructure (Enterprise and Networking). CABLEVISION SYSTEMS: Sued for Breach of Contract ------------------------------------------------ Julia Gallo, et al., individually and on behalf of others similarly situated v. Cablevision Systems Corp., Case No. 10-cv-08125 (S.D.N.Y. October 26, 2010), accuses the cable services provider of failing to provide its customers Fox Channels' programming as a result of a contract dispute with News Corporation and refusing to make restitution to its customers for the substantial and material interruption of service. Cablevision's customers pay an average of $150 per month for the service. On October 15, 2010, Cablevision's agreement with News Corporation expired. According to News Corporation, Cablevision had rejected numerous proposals on the same terms and conditions of other cable providers in the New York metropolitan market. The Plaintiffs are represented by: Todd J. Krouner, Esq. LAW OFFICE OF TODD J. KROUNER 93 North Greeley Avenue Chappaqua, NY 10514 Telephone: (914) 238-5800 Email: info@krounerlaw.com CASH AMERICA: Appeals Court Allows Class Action to Move Forward --------------------------------------------------------------- Ben Smith, writing for Atlanta Business Chronicle, reports the Georgia Court of Appeals has given the go-ahead for a class-action lawsuit against Cash America International Inc. The suit accuses Cash America (NYSE: CSH) of running illegal payday loans to Georgia consumers through Community State Bank. The Georgia Court of Appeals on Oct. 4 upheld the State Court's decision granting the case class certification. Cash America appealed to the Georgia Supreme Court on Oct. 8. "Cash America believes that the Plaintiffs' claims in this suit are without merit and is vigorously defending this lawsuit," the company said in an Oct. 21 filing with the Securities and Exchange Commission. The Cash America case has been traveling through the Georgia courts since 2004 when the first lawsuit was filed against the company in Cobb County State Court. The plaintiffs claim that Cash America, in an act of "subterfuge," used a contract with CSB to funnel payday loans through the bank in violation of Georgia's usury laws, the state Industrial Loan Act and Georgia's Racketeer Influenced Corrupt Organizations Act. Payday loans are small short-term, high-interest loans opposed by many consumer advocates. Payday lending is a multibillion-dollar industry that is legal in most states, but not in Georgia. Past attempts to legalize the practice here have failed. In 2004, the Georgia General Assembly passed a law bumping up the penalties for payday lending. CORINTHIAN COLLEGES: Zamansky Files Lead Plaintiff Motion --------------------------------------------------------- Zamansky & Associates LLC Friday disclosed that on October 29, 2010, it filed a lead plaintiff motion on behalf of an investor- client in the securities fraud class action lawsuit against Corinthian Colleges Inc., and certain of its officers and directors, pending in the United States District Court for the Central District of California (No. 10CV6523). The lead plaintiff motion alleges that Zamansky & Associates' client is the investor with the largest known financial interest in the Corinthian lawsuit. Corinthian is accused in the class action lawsuit of violating United States securities law, causing artificial inflation of its stock price. According to the Complaint, Corinthian engaged in fraudulent practices which led to its overstating its revenues, enrollment and qualifications for continued participation in federal loan programs. Zamansky & Associates is also investigating Grand Canyon Education Inc.; Capella Education Company; Career Education Corporation; and The Washington Post Company -- whether these Companies engaged in false and/or misleading statements and/or failed to disclose to investors: (1) their overstated growth prospects by engaging in illicit and improper recruiting activities, which also had the effect of artificially inflating the Companies' reported results and future growth prospects; (2) the Companies' financial results were overstated in that the Companies' colleges inflated tuition costs and its student loan repayment rates were well below levels required for participation in federal loan programs; (3) the Companies failed to maintain adequate systems of internal operational or financial controls; and (4) the Companies lacked a basis for their positive statements about their financial results, their prospects and growth. Investors in Strayer Education, Inc. should contact Zamansky & Associates immediately if they wish to file a lead plaintiff motion in the pending class action in the Untied States District Court in Florida, Middle District, Tampa Division. There is a deadline for filing a lead plaintiff motion. Please contact us for information on the deadline, and any other information about this lawsuit. For more information about Zamansky & Associates' for-profit education stock cases log on to www.zamansky.com/edustocks If you have suffered from financial losses in stocks for any of the education stocks, you may have a legal claim to recover your losses or other damages. Please contact us as soon as possible to protect your rights at 212-724-1414 or at Jake@zamansky.com About Zamansky & Associates Based in New York City and founded in 1998 by Jacob H. Zamansky, one of the most successful securities attorneys in the country, Zamansky & Associates files cases across the United States on behalf of institutional and individual investors as well as employees of securities firms and brokerages. The firm has represented a wide array of investors and securities industry clients, and the firm's cases have set major precedents and spurred industry-wide reform. FALCONSTOR SOFTWARE: Lead Plaintiff Deadline Set November 30 ------------------------------------------------------------ The Rosen Law Firm reminds investors of the important November 30, 2010 lead plaintiff deadline in the class action lawsuit the firm filed on behalf purchasers of FalconStor Software, Inc. common stock during the period beginning February 5, 2009 through September 29, 2010, seeking remedies under the federal securities laws. A lead plaintiff is a representative party acting on behalf of other absent members of the class in directing the litigation. To join the class action against FalconStor, go to the website at http://www.rosenlegal.com/or call Laurence Rosen, Esq. or Phillip Kim, Esq. toll-free at 866-767-3653. You may also email lrosen@rosenlegal.com or pkim@rosenlegal.com for information on the class action. NO CLASS HAS YET BEEN CERTIFIED IN THE ABOVE ACTION. UNTIL A CLASS IS CERTIFIED, YOU ARE NOT REPRESENTED BY COUNSEL UNLESS YOU RETAIN ONE. YOU MAY CHOOSE TO DO NOTHING AT THIS POINT AND REMAIN AN ABSENT CLASS MEMBER. The Complaint alleges that FalconStor and certain of its officers and directors are liable under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 in connection with the issuance of materially false and misleading statements about the Company's financial condition and prospects. The Complaint asserts that defendants failed to disclose that the FalconStor was making improper payments to secure a contract with at least one of its customers; the Company was experiencing weak demand for its products and services; and consequently defendants lacked a reasonable basis for their statements about the Company's prospects. The Complaint asserts that when the truth of these statements began to enter into the market on September 29, 2010 the price of FalconStor stock fell, damaging investors. If you wish to serve as lead plaintiff, you must move the Court no later than November 30, 2010. A lead plaintiff is a representative party that acts on behalf of other class members in directing and overseeing the litigation. If you wish to join the litigation, or to discuss your rights or interests regarding this class action, please contact Laurence Rosen, Esq. or Phillip Kim, Esq. of The Rosen Law Firm, toll-free, at 866-767-3653, or via e- mail at lrosen@rosenlegal.com or pkim@rosenlegal.com You may also visit the firm's Web site at http://www.rosenlegal.com/ The Rosen Law Firm represents investors throughout the globe, concentrating its practice in securities class actions and shareholder derivative litigation. FEDERAL EXPRESS: Fleischer's Class Action Claim May Be Dismissed ---------------------------------------------------------------- Steve Korris, writing for The Madison/St. Clair Record, reports Mark Goldenberg admits a client who sued Federal Express in 2001 didn't have a valid class action claim, but he argues that a client he added later can carry the case. On Oct. 22, Mr. Goldenberg abandoned lead plaintiff Stephen Fleischer, who claimed Fed Ex owed him and others for late deliveries. "After substantial discovery in this action, and after reviewing the extensive service guide and worldwide directory as they affect Fleischer's shipments, plaintiffs are willing to stipulate that Fleischer's claims may be dismissed," Mr. Goldenberg wrote. Inland Marketing Services, second plaintiff since joining the case in 2003, would advance to the leading role. Inland alleges Fed Ex delivered a shipment almost 20 hours late, in 2001. According to Mr. Goldenberg, Fed Ex data showed nearly 10,000 late shipments in Madison County and nearly 18 million nationwide. He has moved for summary judgment finding Fed Ex breached contracts. Fed Ex has moved for summary judgment too, arguing plaintiffs didn't follow policies requiring them to request invoice adjustments in writing before they sued. Mr. Goldenberg responded that a lawsuit counts as a request in writing. "The service guide does not say the request cannot be contained in a complaint filed in court," he wrote in opposition to summary judgment. "Plaintiffs have always intended their complaint and first amended complaint as written requests for refund of an overcharge," he wrote. In 2007, Circuit Judge Barbara Crowder denied a motion to dismiss the case. Chief Judge Ann Callis transferred the case to Circuit Judge Daniel Stack this July, after assigning Crowder to asbestos cases full time. Judge Stack plans to retire in December. FIRSTENERGY CORP: Plaintiffs Appeal Decertification Ruling ---------------------------------------------------------- The plaintiffs' motion for leave to appeal the ruling affirming the decertification of the class in a suit against Jersey Central Power & Light Company is pending, according to FirstEnergy Corp.'s Oct. 26, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2010. In July 1999, the Mid-Atlantic States experienced a severe heat wave, which resulted in power outages throughout the service territories of many electric utilities, including JCP&L's territory. Two class action lawsuits -- subsequently consolidated into a single proceeding -- were filed in New Jersey Superior Court in July 1999 against JCP&L, GPU, Inc., and other GPU companies, seeking compensatory and punitive damages due to the outages. After various motions, rulings and appeals, the Plaintiffs' claims for consumer fraud, common law fraud, negligent misrepresentation, strict product liability and punitive damages were dismissed, leaving only the negligence and breach of contract causes of actions. On July 29, 2010, the Appellate Division upheld the trial court's decision decertifying the class. Plaintiffs have filed, and JCP&L has opposed, a motion for leave to appeal to the New Jersey Supreme Court. JCP&L is waiting for the Court's decision. FirstEnergy Corp. is a diversified energy company headquartered in Akron, Ohio. Its subsidiaries and affiliates are involved in the generation, transmission and distribution of electricity, as well as energy management and other energy-related services. Its seven electric utility operating companies comprise the nation's fifth largest investor-owned electric system, based on 4.5 million customers served within a 36,100-square-mile area of Ohio, Pennsylvania and New Jersey; and its generation subsidiaries control more than 14,000 megawatts of capacity. FIRSTENERGY CORP: Court Gives Preliminary OK to Settlement Pact --------------------------------------------------------------- The Circuit Court for Baltimore City, Maryland, gave its preliminary approval to the settlement agreement resolving suits in connection with its planned merger with Allegheny Energy, Inc., according to the company's Oct. 26, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2010. In Feb. 10, 2010, FirstEnergy entered into an Agreement and Plan of Merger, subsequently amended on June 4, 2010, with Element Merger Sub, Inc., a wholly owned subsidiary and Allegheny Energy, Inc. Upon the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into Allegheny Energy with Allegheny Energy continuing as the surviving corporation and a wholly owned subsidiary of FirstEnergy. In connection with the proposed merger, purported shareholders of Allegheny Energy have filed putative shareholder class action and/or derivative lawsuits against Allegheny Energy and its directors and certain officers, referred to as the Allegheny Energy defendants, FirstEnergy and Merger Sub. Four putative class action and derivative lawsuits were filed in the Circuit Court for Baltimore City, Maryland (Maryland Court). One was withdrawn. The Maryland Court has consolidated the remaining three cases under the caption: In re Allegheny Energy Shareholder and Derivative Litigation, C.A. No. 24-C-10-1301. Three shareholder lawsuits were filed in the Court of Common Pleas of Westmoreland County, Pennsylvania and the court has consolidated these actions under the caption: In re Allegheny Energy, Inc. Shareholder Class and Derivative, Litigation, Lead Case No. 1101 of 2010. One putative shareholder class action was filed in the U.S. District Court for the Western District of Pennsylvania and is captioned Louisiana Municipal Police Employees' Retirement System v. Evanson, et al., C.A. No. 10-319 NBF. In summary, the lawsuits allege, among other things, that the Allegheny Energy directors breached their fiduciary duties by approving the merger agreement, and that Allegheny Energy, FirstEnergy and Merger Sub aided and abetted in these alleged breaches of fiduciary duty. The complaints seek, among other things, jury trials, money damages and injunctive relief. While FirstEnergy believes the lawsuits are without merit and has defended vigorously against the claims, in order to avoid the costs associated with the litigation, the defendants have agreed to the terms of a disclosure-based settlement of all these shareholder lawsuits and have reached agreement with counsel for all of the plaintiffs concerning fee applications. Under the terms of the settlement, no payments are being made by FirstEnergy or Merger Sub. A formal stipulation of settlement was filed with the Maryland Court on Oct. 18, 2010 and agreements have been signed with plaintiffs in the Pennsylvania proceedings to dismiss those actions once the settlement is approved by the Maryland Court. The Maryland judge has preliminarily approved the stipulation of settlement and set the final approval hearing date for Dec. 13, 2010. FirstEnergy Corp. is a diversified energy company headquartered in Akron, Ohio. Its subsidiaries and affiliates are involved in the generation, transmission and distribution of electricity, as well as energy management and other energy-related services. Its seven electric utility operating companies comprise the nation's fifth largest investor-owned electric system, based on 4.5 million customers served within a 36,100-square-mile area of Ohio, Pennsylvania and New Jersey; and its generation subsidiaries control more than 14,000 megawatts of capacity. FIRSTENERGY CORP: Geauga County Court Dismisses Suit ---------------------------------------------------- The Geauga County Court of Common Pleas granted FirstEnergy Corp.'s motion to dismiss a class action lawsuit related to the reduction of a discount that had previously been in place for residential customers with electric heating, electric water heating, or load management systems, according to the company's Oct. 26, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2010. On Feb. 16, 2010, a class action lawsuit was filed in Geauga County Court of Common Pleas against FirstEnergy, The Cleveland Electric Illuminating Company and Ohio Edison Company seeking declaratory judgment and injunctive relief, as well as compensatory, incidental and consequential damages, on behalf of a class of customers related to the reduction of a discount that had previously been in place for residential customers with electric heating, electric water heating, or load management systems. The reduction in the discount was approved by the Public Utilities Commission of Ohio. On March 18, 2010, the named-defendant companies filed a motion to dismiss the case due to the lack of jurisdiction of the court of common pleas. The court granted the motion to dismiss on Sept. 7, 2010. FirstEnergy Corp. is a diversified energy company headquartered in Akron, Ohio. Its subsidiaries and affiliates are involved in the generation, transmission and distribution of electricity, as well as energy management and other energy-related services. Its seven electric utility operating companies comprise the nation's fifth largest investor-owned electric system, based on 4.5 million customers served within a 36,100-square-mile area of Ohio, Pennsylvania and New Jersey; and its generation subsidiaries control more than 14,000 megawatts of capacity. GILLETTE COMPANY: Settles Class Action Lawsuit for $7.5 Million --------------------------------------------------------------- There is a proposed class action settlement with The Gillette Company in a class action lawsuit called In re M3Power Razor System Marketing & Sales Practices Litigation. The lawsuit claims that Gillette's advertisements stating that the M3Power Razor "raises or stimulates hair up and away from the skin" were false and misleading and violated consumer-related laws in the USA and Canada. In mid-2005, Gillette deleted those representations from its ads. The proposed Settlement is not an admission of wrongdoing or an indication that any law was violated. The Court has not ruled on the merits of the plaintiffs' claims or on the defenses made by Gillette. Gillette denies the allegations but agreed to the proposed Settlement to resolve this class action. This lawsuit is not about the safety of the M3Power Razor. The proposed Settlement provides $7,500,000 to benefit Settlement Class Members who obtained an M3P in the USA between May 1, 2004 and September 30, 2005 and in Canada between May 1, 2004 and October 31, 2005. M3Ps purchased for re-sale are not included. The proposed Settlement will provide Settlement Class Members who submit a valid, timely claim with either a refund (a minimum of $13 US or $16.25 Canadian, depending on the place of purchase) for their M3P, or up to two $5 US rebates (up to a total of $10 US, or the equivalent in Canadian dollars) for any M3Power blades and/or any Fusion or Fusion ProGlide razor purchased before May 2, 2011, or a new Gillette manual men's razor as a replacement, and other relief. Claims are limited to one per person and three per household. If claims exceed the amount available for benefits, there will be no benefit for replacement razors and the refunds and rebates will be reduced in proportion. If claims do not exceed the amount available, additional benefits may be distributed. Ben Barnow, Barnow and Associates, P.C. and Robert M. Rothman, Robbins Geller Rudman & Dowd LLP have been appointed as Settlement Class Counsel. If approved, Gillette will pay fees, costs, and expenses of Settlement Class Counsel, as well as incentive awards to the individuals who brought the lawsuit. These amounts will not be deducted from the proposed Settlement. You may hire your own attorney, if you wish, at your own expense. If you do not want to be legally bound by the proposed Settlement, you must exclude yourself in writing, postmarked by March 4, 2011, and sent to the Settlement Administrator at the address below. If you stay in the Settlement Class, you may file a claim. Claims must be postmarked by May 2, 2011. You may object to any aspect of the proposed Settlement. Objections must be postmarked by March 4, 2011. You also may request in writing to appear at the Final Fairness Hearing, which will be held on March 25, 2011 at 2:00 p.m. The U.S. District Court for the District of Massachusetts will consider whether the proposed Settlement is fair, reasonable, and adequate and the motion for attorneys' fees, costs, and expenses. The Court will also consider objections at that time. This is only a summary of the proposed Settlement. For a more detailed Notice, a copy of the Settlement Agreement, and how to file a claim: call: 1-877-506-4030, visit: http://www.m3powersettlement.com/or write to: M3Power Settlement, P.O. Box 2302, Faribault, MN 55021-9002. GRUNENTHAL GMBH: Faces Class Action Over Thalidomide Injuries ------------------------------------------------------------- Melissa Iaria, writing for The Sydney Morning Herald, reports Australian children who developed deformities after their mothers took thalidomide while pregnant have launched a class action against the German company which developed and marketed the drug. In a writ filed in the Victorian Supreme Court, the five plaintiffs say they were born with or have suffered injuries caused by their pregnant mothers' consumption of thalidomide in Australia. The action against German company, Grunenthal GmbH is brought on behalf of those born in Australia or New Zealand between January 1, 1955 and December 31, 1964, who suffered injuries including defects and deformities after their pregnant mothers took the drug. According to a statement of claim, Grunenthal developed, patented and marketed thalidomide between about 1950 and 1957 and licensed Distillers Company Ltd to bring thalidomide to the market within nine months. The drug was made available throughout the British Commonwealth including in Australia and New Zealand by Distillers Company Limited from 1958. Marketed under brand name "Distaval", it was made available to doctors, pharmacies and hospitals in Australia and New Zealand to supply to women as a tranquilliser and treatment for morning sickness. But the statement of claim alleges Grunenthal knew or should have known Distillers would have little or no chance to test its safety and was required to rely upon representations Grunenthal made. Despite not adequately testing its safety, Grunenthal allegedly portrayed the drug as "completely safe". The claim also alleges Grunenthal knew from the time it executed its licensing agreement that there was a suggested link between thalidomide and a range of adverse health effects. Between about 1956 and 1961, the company is alleged to have received reports of birth deformities in infants whose mothers took thalidomide during pregnancy, but ignored, suppressed and denigrated people who complained. When thalidomide was withdrawn from sale in Australia and New Zealand in 1961, Grunenthal falsely claimed it was withdrawn due to irresponsible media reporting, according the statement of claim. It says the company was so motivated by profits, it acted in contempt for the rights and health of its victims and ignored evidence of risks to consumers. The claim says plaintiffs are likely to suffer reduced life expectancy and develop, after the age of 50, peripheral neuropathy, which is a problem with nerves carrying information to and from the brain and spinal cord. PENNSYLVANIA: Accused of Abusing Powers of Eminent Domain --------------------------------------------------------- Erin McAuley at Courthouse News Service reports that with help from a law office, Pennsylvania and a county redevelopment agency abused their condemnation powers to help a coal company get its hands on billions of dollars worth of coal deposits, the Borough of Centralia and its citizens say in a federal class action. Centralia claims the conspirators used the pretext of an underground fire to make a land grab: a gross abuse of their powers of eminent domain. "The original government pretense, if indeed it was ever legitimate, has long since expired," the complaint states. "In short, the purported 'Centralia Mine Fire,' which allegedly threatened the Borough of Centralia, no longer provides, or never did provide, a viable explanation for the application of government power (exercise of eminent domain) and the taking of these American citizens' property." "These defendants covet billions of dollars worth of extremely valuable anthracite coal which lies beneath the surface of the Borough of Centralia. These persons and entities, by and through political connections and the manipulation of governmental agencies and entities, are, among other things, illegally taking the property of the plaintiffs through the unlawful use of government police power." The complaint continues: "Plaintiffs allege that their rights are being violated by abusive government officials and entities, in concert with private persons, and that they have been exploited by the defendants to accomplish their unlawful ends. The persistent efforts of this private/government enterprise have resulted in a massive and continuing fraud reflective of both civil and criminal RICO violations. Perhaps the most succinct characterization of this process is expressed in the wisdom of the Hon. Scott Naus of the Court of Common Pleas of Columbia County when he obviously questioned, through the choice of his words, the basis for the suspicious rush to judgment by individuals and government entities who were purportedly seeking to respond to the dangers of a fire that has never materialized as a threat to Centralia. The fire has never been investigated. No court has ever held a hearing to determine whether the fire is, or ever was, a threat to the Borough or these plaintiffs. Despite pervasive conflicts in the 'evidence' of the alleged 'threat' posed by the fires, and the additional evidence of questionable political rationales, the fire that has never reached, and will never reach, Centralia has been allowed to act as an engine of private aggrandizement resulting in the unlawful denigration of citizens' rights." The class claims that hundreds of fires occur in Pennsylvania abandoned mines, particularly the anthracite coal mining region in and around northeast Pennsylvania. The so-called "Centralia Mine Fire" started in 1962 in an abandoned coal stripping pit that Centralia used as a trash dump. The class adds that any evidence that the fire actually endangered Centralia was "contrived," and that "no court has ever held a hearing to determine whether the fire is, or ever was, a threat," that "certainly it does not threaten Centralia now and is retreating at its worst." The class claims the defendants -- including the Columbia County Redevelopment Authority and the Rosenn Jenkins and Greenwald law office -- used the underground fire as a pretext for a "massive fraud designed to acquire access to the coal under the condemned area." The class claims the Borough owns all the coal beneath it and the defendants cannot get their hands on the coal unless Centralia ceases to exist. The class claims the fraud was carried out by Rosenn, Jenkins and Greenwald on behalf of it client, co-defendant Blaschak Coal Co., in corporation with government entities and individuals, including Rosenn, Jenkins attorneys John Zelinka and Gary Taroli, and Steven Fishman, spokesman and counsel for the defendant state Department of Community and Economic Development. Rosenn, Jenkins has represented various predecessors in interest of Blaschak, which have asserted rights to the coal since the 1980s, the class says. Blaschak has significant holdings in the condemned area, including roughly 52.8 acres of surface rights in Centralia. The class claims that any "examination of the applicable maps showing the geology and water table in the area would demonstrate that the 'Centralia Mine Fire' would never, and could never reach Centralia." They say that the state and county agencies claim to be protecting Centralia through the Pennsylvania Redevelopment Act from the "alleged raging presence of an oncoming fire, but there is no evidence to support the position that the fire presented a real and present unabatable hazard to any of the residents." The class adds: "Plaintiffs believe and aver that sometime during the course of the efforts to extinguish the fires that a plan was hatched among and between RJG, Nogard, Blaschak, and their principals to use the fire as a pretext to justify the removal of all the residents of the Borough, and, as such, to extinguish the Borough, so that access to billions of dollars worth of coal under the Borough of Centralia and Conyngham Township could be mined. Plaintiffs further believe and aver that this conspiracy also involved a number of local and state public officials, and other private persons, all of whose identities are not yet known, but will be developed through discovery." They add: "(T)he fire that has never reached, and will never reach, Centralia has been allowed to act as an engine of private aggrandizement resulting in the unlawful denigration of citizens' rights." The class claims that Rosenn, Jenkins knew about the tremendous coal vein 20 years after the "Centralia Mine Fire" began, but before the class knew the coal existed, when it made a claim to the subsurface mineral rights under Centralia in 1981, while representing the Nogard Coal Co. In 1983, the class says, the Department of the Interior, Bureau of Mines Office of Surface Mining "issued a report trumpeting the dangers" of what it called the "Centralia Mine Fire." That same year the Columbia County Redevelopment Authority, as agent for the Pennsylvania Department of Community Affairs, "started a voluntary relocation effort for the citizens of Centralia Borough, although the fire is believed to never have existed under the Borough." The class claims that citizens of Centralia agreed to settlements because they felt threatened -- but they felt threatened because they had been misled about the fire and were unaware of the coal deposits beneath them. Four hundred of approximately 465 properties were transferred through a "voluntary program," leaving owners of roughly 60 properties to face formal eminent domain proceedings -- all of which were filed in the Columbia County Court of Common Pleas in 1993. Never in any proceedings was the basis or necessity for the use of eminent domain in Centralia ever explained, the class claims. As "irrefutable evidence" that the defendants knew there was no real threat from the fire, even as they bought out the residents of the borough, the class says that Blaschak "built a warehouse for mining activities literally right across the Borough line in or around 2004, within the purported fire impact area. Upon information and belief, this facility is to be a hub for mining activity in the Borough after it ceases to exist." They add that this "reflected the inside track that RJG's clients had on manipulating the condemnation issues." The class claims that Rosenn, Jenkins and its clients bought them out on the cheap, because they were "feeling threatened, and being misled about the dangers of the fire." The complaint continues: "None of these were aware of the incredible value of the coal beneath them nor that there were plans to acquire the coal and mine in the Borough, although the approximate $90,000 amount received by a former Centralia mayor for her property, an amount believed to be far in excess of the values offered to other residents, suggests that persons other than the named defendants, all additionally to be determined through discovery, were complicit in the scheme." The class claims their property has been illegally taken through unlawful use of government police power and exercise of eminent domain. It seeks injunctive relief and punitive damages for conspiracy, fraud, civil and criminal misconduct, violations of due process and equal protection, punitive damages. A copy of the Complaint in Hynoski, et al. v. Columbia County Redevelopment Authority, et al., Case No. 10-cv-02222 (M.D. Pa.), is available at: http://www.courthousenews.com/2010/10/29/EminentDomain.pdf The Plaintiffs are represented by: Don Bailey, Esq. BAILEY & OSTROWSKI 4311 North Sixth Street Harrisburg, PA 17110 Telephone: 717-221-9500 QUEST DIAGNOSTICS: Defends Suit Over Defective NID Test Kits ------------------------------------------------------------ Quest Diagnostics Inc. and its subsidiary, Nichols Institute Diagnostics, defend a putative class action filed in the U.S. District Court for the Eastern District of New York. The suit was filed on April 2010, York on behalf of entities that allegedly purchased or paid for certain of NID's test kits. The complaint alleges that certain of NID's test kits were defective and that defendants, among other things, violated the Racketeer Influenced and Corrupt Organizations Act and state consumer protection laws. The complaint alleges an unspecified amount of damages. The test kits are the automated test to measure parathyroid hormone levels in human blood or urine samples. Parathyroid hormone regulates calcium levels and bone cells; parathyroid gland failure is a common complication of severe kidney disease. Doctors must monitor hormone levels to ensure that patients continue to experience burn turnover and a regulated metabolism. Insufficient levels of vitamin D can cause bone pain, while too much calcium can cause nausea, vomiting, kidney stones and other side effects. No updates were reported in the company's Oct. 26, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Sept. 30, 2010. Quest Diagnostics Inc. -- http://www.QuestDiagnostics.com/-- is the world's leading provider of diagnostic testing, information and services that patients and doctors need to make better healthcare decisions. The company offers the broadest access to diagnostic testing services through its network of laboratories and patient service centers, and provides interpretive consultation through its extensive medical and scientific staff. Quest Diagnostics is a pioneer in developing innovative diagnostic tests and advanced healthcare information technology solutions that help improve patient care. UBS FINANCIAL: Removes "Lewis" Labor Complaint to N.D. Calif. ------------------------------------------------------------- Brooks Lewis, on behalf of himself and others similarly situated v. UBS Financial Services Inc., Case No. CGC-10-501446 (Calif. Super. Ct., San Francisco Cty.), was filed on July 9, 2010. The plaintiff accuses the global financial services company of failing to pay wages for all hours worked, failing to provide accurate itemized wage statements, failing to reimburse expenses, and other violations of the California Labor Code. Based on diversity-of-citizenship jurisdiction under 28 U.S.C. Sec. 1332, UBS Financial Services Inc., on October 27, 2010, removed the lawsuit to the Northern District of California, and the Clerk assigned Case No. 10-cv-04867 to the proceeding. The Plaintiff is represented by: Scot David Bernstein, Esq. LAW OFFICES OF SCOT D. BERSTEIN, APC 101 Parkshore Drive, Suite 100 Folsom, CA 95630 Telephone: (916) 447-0100 E-mail: swampadero@sbernsteinlaw.com - and - William Philip Torngren, Esq. LAW OFFICES OF WILLIAM P. TORNGREN 117 J. Street, Suite 300 Sacramento, CA 95814 Telephone: (916) 554-6447 The Defendant is represented by: Kirby C. Wilcox, Esq. Jeffrey D. Wohl, Esq. Zach P. Hutton, Esq. PAUL, HASTINGS, JANOFSKY & WALKER LLP 55 Second Street, 24th Floor San Francisco, CA 94105-3441 Telephone: (415) 856-7000 E-mail: kirbywilcox@paulhastings.com jeffwohl@paulhastings.com zachhutton@paulhastings.com VITACOST.COM INC: Probe in Securities Class Action Continues ------------------------------------------------------------ Kahn Swick & Foti, LLC, and KSF partner Former Attorney General of Louisiana, Charles C. Foti, Jr. disclosed that the firm continues its investigation in the firm's securities class action lawsuit against Vitacost.com, Inc. (Nasdaq: VITC). The lawsuit, Case No. 10-80644, is pending in the United States District Court for the Southern District of Florida on behalf of purchasers of the common stock of the Company between September 24, 2009 and April 20, 2010, inclusive. No class has yet been certified in this action. What You May Do If you have information that would assist KSF in its ongoing investigation prior to the filing of a consolidated amended complaint in December, or would like to discuss your legal rights, you may, without obligation or cost to you, call or e-mail KSF Managing Partner, Lewis Kahn -- lewis.kahn@ksfcounsel.com -- toll free 1-866-467-1400, ext. 200, after hours via cell phone 504-301- 7900. KSF encourages anyone with information regarding Vitacost's conduct during the period in question to contact the firm to discuss the investigation, including whistleblowers, former employees, shareholders and others. KSF attorneys have significant experience in representing both institutional and individual shareholders in securities fraud litigation nationwide. About the Lawsuit The complaint accuses the defendants of violations of the Securities Exchange Act of 1934 and the Securities Act of 1933 by virtue of the Company's failure to disclose during the Class Period and/or in the offering documents (registration statement and prospectus) for its initial public offering on or about September 24, 2009, that the Company was starting a product-mix shift away from the high-margin proprietary products yet inflated demand for its proprietary products by pushing out excess product to customers so that it could mask declining demand; that the Company was knowingly experiencing logistical issues at its own plants, lacking adequate oversight processes and procedures and utilizing ineffective operations software; that the Company lacked adequate internal and financial controls; and that as a result of the foregoing, the Company's financial results were materially inflated at all relevant times. According to the complaint, after, on April 20, 2010, the Company announced updated guidance for revenue for the quarter ending March 31, 2010 and for the full year 2010, the value of Vitacost.com stock declined significantly. KSF, whose partners include the Former Louisiana Attorney General Charles C. Foti, Jr., -- http://www.ksfcounsel.com/-- is a law firm focused on securities class action litigation with offices in New York and Louisiana. KSF's lawyers have significant experience litigating complex securities class actions nationwide on behalf of both institutional and individual shareholders. WALGREEN CO: Motion to Dismiss Second Amended Complaint Granted --------------------------------------------------------------- The U.S. District Court for the Northern District of Illinois granted Walgreen Co.'s motion to dismiss a second amended complaint, according to the company's Oct. 26, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Aug. 31, 2010. On April 16, 2008, the Plumbers and Steamfitters Local No. 7 Pension Fund filed a putative class action suit against the company and its former and current chief executive officers. The plaintiffs amended the complaint on Oct. 16, 2008, which upon the company's motion the District Court dismissed on Sept. 24, 2009. Subsequently, the plaintiffs moved for the District Court to reconsider the dismissal and to allow plaintiffs leave to further amend the complaint. The District Court granted plaintiffs' motion on Nov. 11, 2009. The second amended complaint was then filed on behalf of purchasers of company common stock during the period between June 25, 2007 and Oct. 1, 2007. As in the first amended complaint, the second amended complaint charges the Company and its former and current chief executive officers with violations of Section 10(b) of the Securities Exchange Act of 1934, claiming that the company misled investors by failing to disclose (i) declining rates of growth in generic drug sales and (ii) increasing selling, general and administrative expenses in the fourth quarter of 2007, which allegedly had a negative impact on earnings. On Feb. 1, 2010, the company filed a motion to dismiss the second amended complaint. On Sept. 29, 2010, the District Court dismissed the second amended complaint with prejudice. The plaintiffs have until Oct. 29, 2010, to appeal the District Court's dismissal. Walgreen Co. -- http://www.walgreens.com/-- is engaged in retail drugstore business. As of Aug. 31, 2009, the company operated 7,496 locations in 50 states, the District of Columbia, Puerto Rico and Guam. During the fiscal year ended Aug. 30, 2009 (fiscal 2009), the company opened or acquired 691 locations. Total locations do not include 337 convenient care clinics operated by Take Care Health Systems, Inc. within the company's drugstores. The company's drugstores are engaged in the retail sale of prescription and non-prescription drugs and general merchandise. General merchandise includes, among other things, household items, personal care, convenience foods, beauty care, photofinishing, candy, and seasonal items. Walgreens offers customers the choice to have prescriptions filled at the drugstore counter, as well as through the mail, by telephone and through the Internet. In January 2010, the company announced that it has completed the acquisition of the assets of 12 Eaton Apothecary pharmacies. WASHINGTON POST: Faces Shareholder Securities Class Action ---------------------------------------------------------- Courthouse News Service reports that the Washington Post failed to disclose that its Kaplan education subsidiaries used "abusive and fraudulent recruiting and financial aid lending practices" to increase revenue, and the Post's share price dropped by 8 percent the day after the news came out, shareholders say in a federal class action. A copy of the Complaint in Plumbers Local #200 Pension Fund v. The Washington Post Company, et al., Case No. 10-cv-01835 (Friedman, J.) (D.D.C.), is available at: http://www.courthousenews.com/2010/10/29/WashPost.pdf The Plaintiff is represented by: Roger M. Adelman, Esq. LAW OFFICE OF ROGER M. ADELMAN 1100 Connecticut Avenue, NW, Suite 730 Washington, DC 20036 Telephone: (202) 822-0600 E-mail: radelman@erols.com - and - David J. George, Esq. Robert J. Robbins, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 120 E. Palmetto Park Road, Suite 500 Boca Raton, FL 33432 Telephone: (561) 750-3000 E-mails: dgeorge@rgrdlaw.com rrobbins@rgrdlaw.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Gracele D. Canilao, Leah Felisilda, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2010. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *