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C L A S S A C T I O N R E P O R T E R
Tuesday, November 16, 2010, Vol. 12, No. 226
Headlines
AGENCE METROPOLITAINE: Faces Class Action Suit Over Train Delays
ALLIANT ENERGY: To Amend Pension Plan Based on IRS Settlement Pact
CIGNA CORP: Supreme Court to Hear Arguments on Nov. 30
CIGNA CORP: Higashi and Pain Management Dismiss Claims
COMMERCIAL METALS: Standard Iron Works' Actions Remain Pending
COMMUNITY HEALTH: Continues to Defend Roswell Hospital Action
ELI LILLY: Zyprexa Plaintiffs Seek Reconsideration of Reversal
EQUINIX INC.: Appeals in IPO Litigation Remains Pending
EQUINIX INC.: 3 Merger-Related Lawsuits in Florida Dismissed
FOOT LOCKER: Sued for Failing to Pay Proper Wages to Workers
GIANT MANUFACTURING: Recalls 370 Giant Bicycles
GMAC WHOLESALE: Faces Class Action Over Foreclosure Sales
GRASS VALLEY: Settles Class Action Over Improper Tire Fees
GREAT-WEST LIFE: Class Action Lawsuit Hits Third Quarter Profit
HUNTINGTON BANCSHARES: Still Awaiting Approval of ERISA Settlement
J.B. HUNT: Wage Violations Suit Remains Pending in California
LSB CORP: Court Won't Enjoin Shareholder Vote
MCFADDEN'S RESTAURANT: Sued for Discriminating Black Patrons
MCGRAW-HILL COS: Call to Dismiss Amended Complaint Fully Briefed
MCGRAW-HILL COS: Awaiting Decision on Appeal of Suits Dismissal
NATIONAL BEEF: NBL Units Continue to Defend Suits Over Wastewater
NCR CORP: Appeal in "Death Benefits" Suit Remains Pending
NEW ORLEANS: Faces Class Action Over Use of Traffic Cameras
NISOURCE INC: Pays Share of Settlement Proceeds in Tawney Suit
NISOURCE INC: Court to Hear Appeal in Royalty Suits on Dec. 10
NORFOLK SOUTHERN: Ashtabula Lawsuit Remains Pending
NORFOLK SOUTHERN: Consolidated Antitrust Suit Remains Pending
OVERSTOCK.COM INC: "Facebook Beacon" Suit Appeal Remains Pending
OVERSTOCK.COM INC: Continues to Defend Breach of Contract Suit
PARTNER COMMUNICATIONS: Faces Class Action Lawsuit
PENN VIRGINIA: Faces Class Suits Over PVG Entities' Merger Deal
POTTERY BARN: Recalls 7,300 Pottery Barn Lamps
SYNGENTA CROP: Discovery in Atrazine Class Action Suit Continues
WENNER MEDIA: Faces Class Action Suit Over Aggressive Marketing
WEST BANCORP: Subsidiary Faces Class Suit Over Overdraft Fees
XCEL ENERGY: Unit Remains a Defendant in Gas-Trading Suit
XCEL ENERGY: Plaintiffs Want 5th Circuit to Review Appeal
XEROX CORP.: Remains a Defendant in Consolidated Suit
XEROX CORP.: ACS Merger-Related Suit in Texas Dismissed
* EU Air Cartel Fine May Speed Up Class Suit in Australia
* Foreclosure Class Action Lawsuits on the Rise in the U.S.
* U.S. Banks Escaping National Action Lawsuits Over Foreclosures
*********
AGENCE METROPOLITAINE: Faces Class Action Suit Over Train Delays
----------------------------------------------------------------
CTV.ca News reports a Quebec Superior Court judge has authorized a
class action lawsuit that could total $12 million against the
Agence metropolitaine de transport.
Pincourt resident Yves Boyer, the lead plaintiff in the lawsuit,
says trains on the Deux-Montagnes and Dorion-Rigaud lines were
plagued by delays and cancellations for a period in early 2009.
He says the trains were consistently late during the months of
January and February 2009.
He wants half of the cost of the train pass fir each month, and
$100 per month to compensate for his trouble.
Normand Painchaud, the lawyer representing Mr. Boyer, says it's
not just about the money -- his client wants the train to become
more efficient.
"Class actions exist to modify behavior," Mr. Painchaud said last
year, after filing the lawsuit. "They've given good words and
shown good intentions, [but] without real effect."
Up to 46,000 commuters are eligible to join the class action suit.
In February 2009, the AMT announced it would be giving commuters
on the Dorion-Rigaud and Deux-Montagnes line a 50% discount for
their March transit passes.
ALLIANT ENERGY: To Amend Pension Plan Based on IRS Settlement Pact
------------------------------------------------------------------
The Alliant Energy Cash Balance Pension Plan will be amended in
connection with its settlement discussions with the Internal
Revenue Service, according to Alliant Energy Corp.'s October 29,
2010 Form 10-Q filing with the U.S. Securities and Exchange
Commission.
A class action lawsuit was filed against the Alliant Energy Cash
Balance Pension Plan in February 2008 alleging that certain Plan
participants who received distributions prior to their normal
retirement age did not receive the full benefit to which they were
entitled in violation of the Employee Retirement Income Security
Act of 1974 because the Plan applied an improper interest
crediting rate to project the cash balance account to their normal
retirement age.
On June 3, 2010, the court granted the plaintiff's motion for
summary judgment on liability in the lawsuit. The court also
ruled with respect to damages that prejudgment interest on damages
will be allowed at the prime rate at the time of the judgment and
a pre-retirement mortality discount will apply to the damages
calculation. The court later granted the plaintiffs' motion for
reconsideration of the application of a pre-retirement mortality
discount.
A bench trial on the issue of damages was held in June 2010, at
which the court heard evidence on issues related to the amount of
damages, including application of the pre-retirement mortality
discount. The court has not yet issued a decision.
The Plan is contesting the case and intends to pursue appropriate
appeals.
The plaintiffs submitted reports in September 2009 by their expert
witnesses that quantified the alleged underpayments owed to
plaintiffs between $24 million and $54 million, including
interest. Alliant Energy disputes these amounts and believes, in
particular as a result of the court's rulings with respect to
damages, that the ultimate liability of the Plan will be less than
this range.
The interest crediting rate used to project the cash balance
account to participants' normal retirement age is also being
considered by the IRS as part of its review of Alliant Energy's
request for a favorable determination letter with respect to the
tax-qualified status of the Plan. Alliant Energy has reached a
tentative agreement with the IRS, which is expected to result in a
favorable determination letter for the Plan.
The agreement with the IRS is expected to require an amendment to
the Plan, which will likely result in future payments to certain
Plan participants.
As of Sep. 30, 2010, Alliant Energy recognized a loss contingency
of $9 million ($6 million at IPL, $2 million at WPL and $1 million
at Resources) in aggregate related to the class action lawsuit and
the anticipated Plan amendment resulting from the IRS discussions.
CIGNA CORP: Supreme Court to Hear Arguments on Nov. 30
------------------------------------------------------
The United States Supreme Court will hear arguments on Nov. 30,
2010, in connection with CIGNA Corporation's petition for a writ
of certiorari relating to an appeal in the Amara litigation,
according to the company's October 29, 2010 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
On December 18, 2001, Janice Amara filed a class action lawsuit,
captioned Janice C. Amara, Gisela R. Broderick, Annette S. Glanz,
individually and on behalf of all others similarly situated v.
CIGNA Corporation and CIGNA Pension Plan, in the United States
District Court for the District of Connecticut against CIGNA
Corporation and the CIGNA Pension Plan on behalf of herself and
other similarly situated participants in the CIGNA Pension Plan
affected by the 1998 conversion to a cash balance formula.
The plaintiffs allege various ERISA violations including, among
other things, that the Plan's cash balance formula discriminates
against older employees; the conversion resulted in a wear away
period (during which the pre-conversion accrued benefit exceeded
the post-conversion benefit); and these conditions are not
adequately disclosed in the Plan.
In 2008, the court issued a decision finding in favor of CIGNA
Corporation and the CIGNA Pension Plan on the age discrimination
and wear away claims. However, the court found in favor of the
plaintiffs on many aspects of the disclosure claims and ordered an
enhanced level of benefits from the existing cash balance formula
for the majority of the class, requiring class members to receive
their frozen benefits under the pre-conversion CIGNA Pension Plan
and their accrued benefits under the post-conversion CIGNA Pension
Plan.
The court also ordered, among other things, pre-judgment and post-
judgment interest.
Both parties appealed the court's decisions to the United States
Court of Appeals for the Second Circuit, which issued a decision
on October 6, 2009, affirming the District Court's judgment and
order on all issues.
On January 4, 2010, the Company and the plaintiffs filed separate
petitions for a writ of certiorari to the United States Supreme
Court.
On June 28, 2010, CIGNA's petition was granted and is scheduled to
be argued on November 30, 2010.
The United States Supreme Court held the plaintiffs' petition for
writ of certiorari and the Company expects it to be disposed of
when an opinion is issued.
The implementation of the judgment is currently stayed. The
Company will continue to vigorously defend itself in this case.
CIGNA CORP: Higashi and Pain Management Dismiss Claims
------------------------------------------------------
Two plaintiffs have voluntarily dismissed their claims against
CIGNA Corporation from the Ingenix litigation, according to the
company's October 29, 2010 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
On April 7, 2000, several pending actions were consolidated in the
United States District Court for the Southern District of Florida
in a multi-district litigation proceeding captioned In re Managed
Care Litigation challenging, in general terms, the mechanisms used
by managed care companies in connection with the delivery of or
payment for health care services. The consolidated cases include
Shane v. Humana, Inc., et al., Mangieri v. CIGNA Corporation,
Kaiser and Corrigan v. CIGNA Corporation, et al. and Amer. Dental
Ass'n v. CIGNA Corp. et al.
In 2004, the court approved a settlement agreement between the
physician class and CIGNA. However, a dispute over disallowed
claims under the settlement submitted by a representative of
certain class member physicians is in arbitration.
Separately, in 2005, the court approved a settlement between CIGNA
and a class of non-physician health care providers. Only the
American Dental Association case remains unresolved. On March 2,
2009, the Court dismissed with prejudice five of the six counts of
the complaint.
On March 20, 2009, the Court declined to exercise supplemental
jurisdiction over the remaining state law claim and dismissed the
case. Plaintiffs filed a notice of appeal with the Eleventh
Circuit Court of Appeals on April 17, 2009. On May 14, 2010, the
Court of Appeals issued a decision affirming the District Court's
dismissal.
On June 9, 2009, CIGNA filed motions in the United States District
Court for the Southern District of Florida to enforce the In re
Managed Care Litigation settlement by enjoining the RICO and
antitrust causes of action asserted by the provider and medical
association plaintiffs in the Ingenix litigation on the ground
that they arose prior to and were released in the April 2004
settlement.
On November 30, 2009, the Court granted the motions and ordered
the provider and association plaintiffs to withdraw their RICO and
antitrust claims from the Ingenix litigation by December 21, 2009.
The plaintiffs filed notices of appeal with the United States
Court of Appeals for the Eleventh Circuit on December 10 and 11,
2009. On April 21, 2010, and June 16, 2010, the appeals were
dismissed for lack of appellate jurisdiction. Plaintiffs' motion
for reconsideration was denied on August 18, 2010.
Two of the provider plaintiffs, Higashi and Pain Management and
Surgery Center of Southern Indiana, have voluntarily dismissed
their claims.
It is reasonably possible that others could initiate additional
litigation or additional regulatory action against the Company
with respect to use of data provided by Ingenix, Inc. The Company
denies the allegations asserted in the investigations and
litigation and will vigorously defend itself in these matters.
COMMERCIAL METALS: Standard Iron Works' Actions Remain Pending
--------------------------------------------------------------
Purported antitrust class-action lawsuits against Commercial
Metals Co. brought by Standard Iron Works of Scranton,
Pennsylvania, and other plaintiffs remain pending, according to
the company's October 29, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the fiscal year ended
August 31, 2010.
On Sept. 18, 2008, subsequent to the end of its 2008 fiscal year,
the company was served with the plaintiffs' antitrust lawsuit
alleging violations of Section 1 of the Sherman Act, brought
against nine steel manufacturing companies, including Commercial
Metals Co.
The lawsuit, filed in the U.S. District Court for the Northern
District of Illinois, alleges that the defendants conspired to
fix, raise, maintain and stabilize the price at which steel
products were sold in the United States by artificially
restricting the supply of such steel products.
The lawsuit, which purports to be brought on behalf of a class
consisting of all purchasers of steel products directly from the
defendants between Jan. 1, 2005 and the present, seeks treble
damages and costs, including reasonable attorney fees and pre- and
post-judgment interest.
Since the filing of this lawsuit, additional plaintiffs have filed
class-action lawsuits naming the same defendants and containing
allegations substantially identical to those of the Standard Iron
Works complaint.
The company believes that the lawsuits are entirely without merit
and plans to aggressively defend the actions.
COMMUNITY HEALTH: Continues to Defend Roswell Hospital Action
-------------------------------------------------------------
Community Health Systems, Inc., continues to defend a class action
that stemmed from a counterclaim filed in a lawsuit commenced by
Roswell Hospital Corporation, according to the Company's Form 10-Q
filing with the Securities and Exchange Commission for the quarter
ended September 30, 2010.
On April 19, 2009, the Company was served in Roswell, New Mexico
with an answer and counterclaim in the case of Roswell Hospital
Corporation d/b/a Eastern New Mexico Medical Center vs. Patrick
Sisneros and Tammie McClain (sued as Jane Doe Sisneros). The case
was originally filed as a collection matter.
The counterclaim was filed as a putative class action and alleged
theories of breach of contract, unjust enrichment,
misrepresentation, prima facie tort, Fair Trade Practices Act and
violation of the New Mexico RICO statute.
On May 7, 2009, the Hospital filed a notice of removal to federal
court.
On July 27, 2009, the case was remanded to state court for
lack of a federal question.
A motion to dismiss and a motion to dismiss mis-joined
counterclaim plaintiffs were filed on Oct. 20, 2009. These
motions were denied.
Extensive discovery has been conducted.
A motion for class certification for all uninsured patients was
heard on March 3 through March 5, 2010. On April 13, 2010, the
state district court judge certified the case as a class action.
Discovery is ongoing.
ELI LILLY: Zyprexa Plaintiffs Seek Reconsideration of Reversal
--------------------------------------------------------------
Plaintiffs in the Zyprexa lawsuit against Eli Lilly & Co. are
seeking reconsideration of the decision on their overpricing
claim, according to the company's October 29, 2010, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
As reported by the Class Action Reporter in September, Eli Lilly &
Co. won reversal of a ruling that granted class-action status to a
suit by pension funds, unions and insurers who alleged that
improper marketing of Zyprexa, its schizophrenia treatment, raised
their costs.
A U.S. appeals court in New York threw out a September 2008 ruling
by U.S. District Judge Jack Weinstein in Brooklyn. He had said
the plaintiffs could pursue as a group claims that Indianapolis-
based Lilly's Zyprexa marketing caused them to pay more for the
drug than what it was worth. The plaintiffs were seeking $6.8
billion in damages.
Judge Weinstein had ruled in favor of the unions, pension funds
and insurance companies, known as third-party payors, rejecting
Lilly's argument that their claims were too different to be tried
together. The appeals court reversed, finding that the link
between marketing Zyprexa to doctors and the injury claimed by the
payors was "attenuated."
"Crucially, the third-party payors do not allege that they relied
on Lilly's misrepresentations -- the misrepresentations at issue
were 'directed through mailings and otherwise at doctors,'" the
appeals court said.
Plaintiffs are seeking a reconsideration of this decision.
EQUINIX INC.: Appeals in IPO Litigation Remains Pending
-------------------------------------------------------
Appeals with respect to a settlement agreement order in a
securities litigation involving Equinix Inc.'s initial public
offering remains pending, according to the company's Form 10-Q
filing with the Securities and Exchange Commission for the quarter
ended September 30, 2010.
On July 30, 2001 and August 8, 2001, putative shareholder class
action lawsuits were filed against Equinix, certain of its
officers and directors, and several investment banks that were
underwriters of its initial public offering. The cases were filed
in the United States District Court for the Southern District of
New York. Similar lawsuits were filed against approximately 300
other issuers and related parties. These lawsuits have been
coordinated before a single judge.
The purported class action alleges violations of Sections 11 and
15 of the Securities Act of 1933 and Sections 10(b), Rule 10b-5
and 20(a) of the Securities Exchange Act of 1934 against Equinix
and the Individual Defendants.
The plaintiffs have since dismissed the Individual Defendants,
without prejudice.
The suits allege that the Underwriter Defendants agreed to
allocate stock in our initial public offering to certain investors
in exchange for excessive and undisclosed commissions and
agreements by those investors to make additional purchases in the
aftermarket at pre-determined prices.
The plaintiffs allege that the prospectus for the Company's
initial public offering was false and misleading and in violation
of the securities laws because it did not disclose these
arrangements.
The action seeks damages in an unspecified amount.
On February 19, 2003, the Court dismissed the Section 10(b) claim
against Equinix, but denied the motion to dismiss the Section 11
claim.
The parties in the approximately 300 coordinated cases, including
the parties in the Equinix case, reached a settlement. It
provides for releases of existing claims and claims that could
have been asserted relating to the conduct alleged to be wrongful
from the class of investors participating in the settlement. The
insurers for the issuer defendants in the coordinated cases will
make the settlement payment on behalf of the issuers, including
Equinix.
On October 6, 2009, the Court granted final approval to the
settlement.
Six notices of appeal and one petition seeking permission to
appeal were filed. Two objectors to the settlement have filed
briefs in support of their appeals. The remaining objectors have
withdrawn their appeals with prejudice.
Due to the inherent uncertainties of litigation, the Company
relates that it cannot accurately predict the ultimate outcome of
the matter.
The Company is unable at this time to determine whether the
outcome of the IPO Litigation would have a material impact on its
results of operations, financial condition or cash flows.
EQUINIX INC.: 3 Merger-Related Lawsuits in Florida Dismissed
------------------------------------------------------------
Three class action lawsuits filed in Florida related to Equinix
Inc.'s merger transaction with Switch and Data Facilities Company,
Inc., have been dismissed, the Company noted in its Form 10-Q
filing with the Securities and Exchange Commission for the quarter
ended September 30, 2010.
In the fourth quarter of 2009, three purported stockholder class
action lawsuits were filed against Equinix in connection with its
proposed merger with Switch and Data:
* The first, filed October 27, 2009 in the Delaware Chancery
Court, names Equinix, Sundance Acquisition Corporation,
Switch and Data, and the members of Switch and Data's board
of directors as defendants. The lawsuit alleges that the
Switch and Data directors breached their fiduciary duties to
Switch and Data's stockholders in connection with the
proposed merger, and that Equinix aided and abetted these
alleged breaches.
* The second complaint, filed October 30, 2009 in Florida state
court, raises similar claims against the same defendants.
* The third complaint, filed on December 7, 2009 in the United
States District Court for the Middle District of Florida,
likewise raises similar claims but did not name Sundance
Acquisition Corporation as a defendant.
Both the second and third complaints included claims alleging that
Switch and Data had failed to disclose material information
concerning the merger to stockholders.
On January 19, 2010, counsel for parties in all three lawsuits
entered into a memorandum of understanding in which they agreed
upon the terms of a settlement of all three lawsuits. Notice of
the settlement was published and distributed to all record
shareholders included in the Settlement Class. No objections to
the settlement were filed.
On August 9, 2010, the Florida state court granted final approval
to the proposed settlement.
Under the terms of the agreement, plaintiffs' counsel received
attorneys' fees and costs in an aggregate amount of $900,000.
Approximately 70% of the fees were paid by Switch and Data's
insurance carrier; Equinix paid the remainder.
Following the Florida state court's final approval of the
settlement, orders were entered in all three cases dismissing the
actions with prejudice.
FOOT LOCKER: Sued for Failing to Pay Proper Wages to Workers
------------------------------------------------------------
Courthouse News Service reports that Foot Locker cheats workers on
overtime and regular time, changes their time cards and makes them
work off the clock, a class action claims in Federal Court.
A copy of the Complaint in Kennedy v. Foot Locker, Inc., et al.,
Case No. 10-cv-00570 (W.D.N.C.), is available at:
http://www.courthousenews.com/2010/11/12/Employ.pdf
The Plaintiff is represented by:
Howard M. Widis, Esq.
Albert S. Nalibotsky, Esq.
QUICK WIDIS & NALIBOTSKY, PLLC
2115 Rexford Road, Suite 100
Charlotte, NC 28211
Telephone: (704) 364-2500
- and -
Peter A. Muhic, Esq.
James A. Maro, Esq.
BARROWAY TOPAZ KESSLER MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
GIANT MANUFACTURING: Recalls 370 Giant Bicycles
-----------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Giant Manufacturing Co. Ltd., of Taiwan, announced a voluntary
recall of about 370 2011 Model Year Anthem Giant Bicycles.
Consumers should stop using recalled products immediately unless
otherwise instructed.
The frame can crack at the junction of the seat post and top tube,
posing a fall hazard to riders.
No injuries or incidents have been reported.
This recall involves 2011 model year Giant Anthem X 29er 1, 2 and
3 model bicycles. The bicycles were sold in small, medium and
large. "Giant" and the model name are printed on the bicycle.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11038.html
The recalled products were manufactured in Taiwan and sold through
authorized Giant Bicycle dealers nationwide during August 2010 for
between $2,200 and $3,500.
Consumers should immediately stop riding the recalled bicycles and
contact any authorized Giant Bicycle dealer for a free inspection
and repair. For additional information, contact Giant Bicycle
toll-free at (866) 458-2555 between 9:00 a.m. and 4:00 p.m.,
Pacific Time, Monday through Friday or visit the firm's Web site
at http://www.giant-bicycles.com/
GMAC WHOLESALE: Faces Class Action Over Foreclosure Sales
---------------------------------------------------------
Courthouse News Service reports that the National Organization of
Assistance for Homeowners filed separate federal class actions
against GMAC Wholesale Mortgage, Countrywide Home Loans/Bank of
America, Litton Loan Servicing, and Central Mortgage Corp.,
challenging the validity of foreclosure sales.
GRASS VALLEY: Settles Class Action Over Improper Tire Fees
----------------------------------------------------------
Liz Kellar, writing for TheUnion.com, reports a former Grass
Valley car dealership must pay several hundred dollars each to
about 100 customers who -- under a recent settlement -- were
charged improper tire fees after they bought used vehicles.
But the big winner is a San Diego "lemon law" firm, which was
awarded nearly $124,000 in legal fees.
Nevada County Superior Court Judge Thomas Anderson signed the
motion for final approval on November 9 to settle a class action
lawsuit against Grass Valley Ford Lincoln Mercury Nissan.
The suit covered customers who purchased a used vehicle from the
dealer between 2005 and 2009, and were charged a tire fee that
should only have been applied to new tires. The dealership
relocated from Grass Valley to Auburn in December 2008.
"I was not involved in any of the proceedings," said dealership
owner Don Neronde Sr. "It was (handled) between the insurance
company and the ambulance chaser (Auto Fraud Legal Center) . . .
I don't know what else to say."
The class action suit was sparked by Penn Valley residents Karl
and Erica Kugler, who bought a used 2001 Chevrolet Cavalier from
the dealership in November 2007, according to court documents.
Karl Kugler was charged a tire fee of $8.75 that only applies to
purchasers of new tires, according to a complaint filed in April
2008. He also was told he had to purchase gap insurance to
receive financing, the complaint alleged.
The couple discovered numerous problems with the Chevy within a
month of the purchase, Ms. Kugler said.
"They kept telling me to bring it in and they would fix things,"
she said.
But they kept finding more damage, leading them to believe the
vehicle was in worse shape than had been represented at the time
of purchase, she said.
"We wanted to get out of the contract," Ms. Kugler said. "They
offered us $3,000 when we had paid $9,000 not even a month
before."
The Kuglers looked for a "lemon law" attorney online and filed a
personal lawsuit, settling for $22,500, she said.
Computer 'glitch'
The class action suit was filed after the parties had gone to
mediation twice, Ms. Kugler said.
"They would not work with us at all," she said. "They said (the
tire fee) was a glitch in the computer system."
The car dealership agreed to settle in July. Class notices and
claim forms were mailed to all customers who had purchased used
vehicles between April 22, 2005 and May 8, 2009, and had been
charged a tire fee.
Ms. Kugler estimated about 100 claimants were identified, and each
will receive $350 per vehicle purchased. The Kuglers, as the
representative victims in the class action suit, were awarded
$5,000. The attorney firm of Rosner, Barry & Babbitt was awarded
$123,350.
"I'm glad it's finally happening," Ms. Kugler said of the approved
settlement. "But it's still happening (to other people). People
really need to do their homework . . . It's deterred me from
buying from a dealer."
GREAT-WEST LIFE: Class Action Lawsuit Hits Third Quarter Profit
---------------------------------------------------------------
Reuters reports Great-West Life Co., Canada's No. 2 insurer,
said Wednesday its third-quarter profit fell 38% as it took a
$225-million provision related to a class-action lawsuit.
Shares of the Winnipeg-based company, which have risen steadily
since the end of September, retraced some of those gains on the
result.
Great-West earned a net $275 million, or 29 cents a share, down
from $445 million, or 47 cents a share, in the year-before period.
Operating profit rose to $479 million, or 51 cents a share, Great-
West said. Analysts had expected earnings of 48 cents a share.
HUNTINGTON BANCSHARES: Still Awaiting Approval of ERISA Settlement
------------------------------------------------------------------
Between Feb. 20 and 29, 2008, three putative class-action lawsuits
were filed before the U.S. District Court for the Southern
District of Ohio against Huntington Bancshares Incorporated, the
Huntington Bancshares Incorporated Pension Review Committee, the
Huntington Investment and Tax Savings Plan Administrative
Committee, and certain of the company's officers and directors
purportedly on behalf of participants in or beneficiaries of the
Plan between July 1, 2007, or July 20, 2007, and the present.
The complaints allege breaches of fiduciary duties in violation of
the Employee Retirement Income Security Act relating to the
company's stock being offered as an investment alternative for
participants in the Plan. They seek money damages and equitable
relief.
On May 14, 2008, the three cases were consolidated into a single
action.
On Aug. 4, 2008, a consolidated complaint was filed asserting a
class period of July 1, 2007 through the present, alleging
breaches of fiduciary duties in violation of the ERISA relating to
Huntington stock being offered as an investment alternative for
participants in the Plan and seeking money damages and equitable
relief.
On Feb. 9, 2009, the court entered an order dismissing with
prejudice the consolidated lawsuit in its entirety, and the
plaintiffs thereafter filed a Notice of Appeal to the U.S. Court
of Appeals for the Sixth Circuit. During the pendency of the
appeal, the parties to the appeal commenced settlement discussions
and have reached an agreement in principle to settle this
litigation on a classwide basis for $1,450,000, subject to the
drafting of definitive settlement documentation and court
approval.
No further updates were reported in Huntington Bancshares
Incorporated's October 29, 2010 Form 10-Q filed with the U.S.
Securities and Exchange Commission for the period ended Sept. 30,
2010.
J.B. HUNT: Wage Violations Suit Remains Pending in California
-------------------------------------------------------------
J.B. Hunt Transport Services, Inc., remains a defendant in certain
class-action allegations in which the plaintiffs are current and
former California-based drivers who allege claims for unpaid
wages, failure to provide meal and rest periods, and other items.
Further proceedings have been stayed in these matters pending the
California Supreme Court's decision in a case unrelated to the
company's involving similar issues.
No further details were reported in the company's October 29,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
LSB CORP: Court Won't Enjoin Shareholder Vote
---------------------------------------------
LSB Corporation reported in a Form 8-K filing with the U.S.
Securities and Exchange Commission that a Massachusetts court
refused to enjoin shareholder vote of the Company in relation to a
stockholders' class action.
On July 27, 2010, George Assad, Jr., an alleged stockholder of the
Company, filed a putative class action allegedly on behalf of all
Company stockholders in the Massachusetts Superior Court, Essex
County, against the Company; River Bank; the Company's board of
Directors; People's United Financial, Inc.; People's United Bank,
a wholly owned subsidiary of People's United; and Bridgeport
Merger Corporation, a wholly owned subsidiary of People's United.
The case, which subsequently was consolidated with another case
and transferred to the Business Litigation Section of the
Massachusetts Superior Court sitting in Suffolk County, is
captioned George Assad, Jr. v. LSB Corporation et al., Suffolk
Civil Action No. 2010-3626-BLS2.
On October 22, 2010, the Superior Court denied the plaintiffs'
motion for preliminary injunction to prevent, pending additional
disclosure, the shareholder vote scheduled for October 27, 2010,
stating that "[o]verall, the Court concludes that the plaintiffs
have not established a likelihood of success on the merits of
their claim of inadequate disclosure."
MCFADDEN'S RESTAURANT: Sued for Discriminating Black Patrons
------------------------------------------------------------
Russell Goldman, writing for ABC News, reports a Philadelphia bar
actively discriminates against black patrons and employees,
banning drinkers who wear baggy clothes and forcing black workers
into behind-the-scenes jobs, according to a lawsuit filed by an
attorney who moonlights there as a bartender.
In a class action lawsuit against McFadden's Restaurant and
Saloon, lawyers for bartender Michael Bolden said they have
obtained e-mails and text messages in which managers discuss ways
to limit the number of black patrons.
"We don't want black people we are a white bar," one manager is
alleged to have e-mailed another, according to the lawsuit.
The class action suit brought against the bar and its parent
company, East Coast Saloons, claims that the manager, Walt Wyrsta,
was worried the clientele had become too black and chided a white
employee for promoting DJs and guest bartenders who were
attracting too many black customers.
In an e-mail dated Oct. 28, Mr. Wyrsta, a general manager, wrote
shift manager Kathy Killian to ask about the racial makeup of
patrons on Wednesday, Oct. 27.
"2 of the [DJ's] in the battle were black, so it was darker than
normal," Ms. Killian replied, in a string of messages about how a
regular group of black customers patronizing the bar on Wednesday
nights was ruining the bar's "reputation."
Employees who answered the phone at McFadden's and at East Coast
Saloons said no one would comment. Messages left for Wyrsta and
Killian were not returned.
Lori Sullivan, a New York lawyer named in the court documents as
representing East Coast Saloons, also did not return calls for
comment.
According to the complaint, the bar tried to attract black patrons
to the bar on Wednesdays during slow weeks over the summer. As
white patrons returned to the city after their summer vacations,
Mr. Wyrsta wanted to put an end to those promotions that attracted
black people.
"So let's get back to basics and make the necessary changes by
fading away that clientele from the bar and behind the bar,"
Mr. Wyrsta allegedly wrote.
MCGRAW-HILL COS: Call to Dismiss Amended Complaint Fully Briefed
----------------------------------------------------------------
The request of The McGraw-Hill Cos., Inc., and other defendants
for the U.S. District Court for the Southern District of New York
to dismiss a second amended complaint alleging violations of
federal securities laws has been fully briefed, according to the
company's October 29, 2010 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
A putative shareholder class-action lawsuit captioned Reese v.
Bahash, Case No. 1:2007-cv-01530, was filed on Aug. 28, 2007, in
the U.S. District Court for the District of Columbia against
Robert Bahash, the chief financial officer of the company,
alleging claims under the federal securities laws and state tort
law concerning Standard & Poor's ratings, particularly its ratings
of subprime mortgage-backed securities. Mr. Bahash was not served
with the complaint.
On Feb. 11, 2008, the District Court in the case entered an order
appointing a lead plaintiff and permitting plaintiffs to amend the
complaint on or before April 16, 2008.
On April 7, 2008, the District Court granted the application of
the lead plaintiff to extend the deadline for its amendment of the
complaint to May 7, 2008.
An amended complaint was filed alleging violations of the federal
securities laws. The company and another individual was named as
additional defendants.
The Amended Complaint asserts, among other things, that the
defendants failed to warn investors that problems in the
structured finance market, particularly the sub-prime lending
market, would negatively affect the company's financial
performance. Service of the Amended Complaint was thereafter
effectuated.
On June 18, 2008, in response to a Consent Motion filed on behalf
of the company and the individual defendants, the District Court
entered an order transferring the action to the U.S. District
Court for the Southern District of New York.
On Nov. 3, 2008, the District Court denied Lead Plaintiff's motion
to lift the discovery stay imposed by the Private Securities
Litigation Reform Act in order to obtain documents S&P submitted
to the SEC during the SEC's examination.
The Court granted a motion by plaintiffs permitting the plaintiffs
to amend the complaint on June 29, 2010 and the Second Amended
Complaint was filed on July 1, 2010.
The Defendants' motion to dismiss the Second Amended Complaint has
been fully briefed before the Court.
MCGRAW-HILL COS: Awaiting Decision on Appeal of Suits Dismissal
---------------------------------------------------------------
The appeals filed by plaintiffs in two putative class actions on
the dismissal of their suits against The McGraw-Hill Cos., Inc.,
alleging violations of the Employee Retirement Income Security
Act, have been submitted and were argued, according to the
company's October 29, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
On Sept. 10, 2008, a putative shareholder class action titled
Patrick Gearren, et al. v. The McGraw-Hill Companies, Inc., et al.
was filed in the U.S. District Court for the Southern District of
New York against the company, its Board of Directors, its Pension
Investment Committee and the administrator of its pension plans.
The Complaint alleged that the defendants breached fiduciary
duties to participants in the company's ERISA plans by allowing
participants to continue to invest in Company stock as an
investment option under the plans during a period when plaintiffs
allege the company's stock price to have been artificially
inflated.
The Complaint also asserted that defendants breached fiduciary
duties under ERISA by making certain material misrepresentations
and non-disclosures concerning the ratings business in plan
communications and the Company's SEC filings.
A virtually identical complaint was filed on June 12, 2009, in an
action titled Sullivan v. The McGraw-Hill Companies, Inc. et al.,
Case No. 09-CV-5450, in the Southern District of New York.
On Feb. 10, 2010, both actions were dismissed in their entirety
for failure to state a claim under applicable law.
The plaintiffs in both actions have filed appeals from the
dismissals of their actions. The appeals in both actions have
been submitted and were argued on September 28, 2010.
NATIONAL BEEF: NBL Units Continue to Defend Suits Over Wastewater
-----------------------------------------------------------------
National Beef Packing Company, LLC's wholly owned subsidiary,
National Beef Leathers LLC, continues to defend two purported
class actions alleging that it spread wastewater sludge containing
hexavalent chromium in four counties in northwest Missouri,
according to the company's October 29, 2010 Form 10-K filing with
the U.S. Securities and Exchange Commission for the fiscal year
ended August 28, 2010.
NBL was named as a defendant in 17 currently pending lawsuits
involving NBL's tannery located in St. Joseph, Missouri. NBL
purchased certain assets of the tannery from Prime Tanning in
March 2009. The lawsuits are pending in the Circuit Courts of
Buchanan County, Clinton County, Ray County, and DeKalb County,
Missouri and in the U.S. District Court for the Western District
of Missouri and were filed between April 22, 2009 and March 12,
2010.
The lawsuits allege that Prime and NBL spread wastewater sludge
containing hexavalent chromium in four counties in northwest
Missouri. The lawsuits currently include 15 actions filed
by individual plaintiffs and two purported class actions.
The plaintiffs are seeking an unspecified amount of damages for
wrongful death, personal injury, pain and suffering, economic
damages, punitive damages, diminished property values and medical
monitoring.
On May 11, 2010, the court issued an order ruling that NBL is not
liable under a successor liability theory for the conduct of the
tannery's previous owner and another party prior to NBL's purchase
of the tannery. As a result of this ruling, the plaintiffs in 15
lawsuits filed between April 22, 2009 and April 29, 2010, in the
Circuit Courts of Buchannan County, Clinton County, and DeKalb
County, Missouri seeking damages for economic damages, punitive
damages, diminished property values and medical monitoring
voluntarily dismissed their claims against NBL in June 2010.
NBL believes it has meritorious defenses to the claims in the
remaining two lawsuits and intends to defend them vigorously.
NCR CORP: Appeal in "Death Benefits" Suit Remains Pending
---------------------------------------------------------
NCR Corporation's appeal on an Ohio federal court's decision
granting motions for summary judgment against the company in two
companion class actions remains pending, according to the
company's October 29, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
In August 2009, a federal court in Ohio granted motions for
summary judgment against NCR in two companion class actions
brought on behalf of certain unionized retirees, who claimed that
the company's 2003 decision to terminate certain benefits payable
on death violated collective bargaining agreements and other
rights.
The company has appealed the decision to the Sixth Circuit Court
of Appeals. If affirmed on appeal, the decision will require the
company to restore the death benefit, at an approximate cost of
US$6 million, which NCR recognized as other expense during the
third quarter of 2009.
No further updates were reported in the company's October 29,
2010, Form 10-Q filing.
NEW ORLEANS: Faces Class Action Over Use of Traffic Cameras
-----------------------------------------------------------
Michelle Massey, writing for The Louisiana Record, reports a New
Orleans woman is a lead plaintiff in a proposed class action
against the city for its use of traffic cameras after she received
a ticket captured by a traffic camera.
Evelyn Alexis Bevis, individually and on behalf of as class of
persons similarly situated, filed the lawsuit Nov. 1 in federal
court in New Orleans.
Ms. Bevis claims that city ordinances which allow traffic cameras
and automated traffic enforcement are unconstitutional and are an
unlawful delegation of police power.
The New Orleans City Council voted 6-1 on Nov. 4 to move oversight
of the city's red light and traffic cameras to the New Orleans
Police Department from the Public Works Department.
The measure came as a response to the Louisiana Supreme Court's
ruling that it was against city charter for the PWD to administer
traffic infractions. The city council said that the provision is
retroactive and all previously issued tickets must be paid, with
anyone who's already paid fines having now right to recover the
funds.
The suit also names the city council, the PWD, American Traffic
Solutions Inc. and "John Does" as defendants.
Among other things, Ms. Bevis claims the defendants violated the
doctrine of governmental separation of powers. She also claims
trespass to property, false arrest and/or attachment of persons
and their property, unlawful touching and unlawful local
government taking and/or expropriation.
Ms. Bevis is seeking more than $1.4 million in damages for loss
and impairment of enjoyment and use of property, deprivation of
civil rights, punitive damages, attorney's fees, court costs and
interest.
The proposed class is represented by Brian A. Gilbert, Peter S.
Koeppel and W. Scarth Clark of Best Koeppel Traylor in New Orleans
and Alexander Dobrescu in Dobrescu and Associates in New Orleans.
A jury trial is requested.
U.S. District Judge Ivan L. R. Lemelle is assigned to the case.
Case No. 2:10-cv-4161
NISOURCE INC: Pays Share of Settlement Proceeds in Tawney Suit
--------------------------------------------------------------
NiSource Inc. has paid about $328 million as settlement of the
lawsuit, Tawney, et al. v. Columbia Natural Resources, Inc.,
according to the Company's Form 10-Q Filing with the U.S.
Securities and Exchange Commission for the quarter ended
September 30, 2010.
The Plaintiffs, who are West Virginia landowners, filed a lawsuit
in early 2003 in the West Virginia Circuit Court for Roane County,
West Virginia, against CNR alleging that CNR underpaid royalties
on gas produced on their land by improperly deducting post-
production costs and not paying a fair value for the gas. The
Plaintiffs also claimed that Defendants fraudulently concealed the
deduction of post-production charges.
In December 2004, the Trial Court granted Plaintiffs' motion to
add NiSource and Columbia Energy Group as Defendants.
The Trial Court later certified the case as a class action that
includes any person who, after July 31, 1990, received or is due
royalties from CNR (and its predecessors or successors) on lands
lying within the boundary of the state of West Virginia.
Although NiSource sold CNR in 2003, NiSource remained obligated to
manage the litigation and was responsible for the majority of any
damages awarded to Plaintiffs.
On January 27, 2007, the jury hearing the case returned a verdict
against all Defendants in the amount of $404.3 million inclusive
of both compensatory and punitive damages.
The Defendants subsequently filed their Petition for Appeal, which
was later amended, with the West Virginia Supreme Court of
Appeals, which refused the petition on May 22, 2008.
On August 22, 2008, Defendants filed Petitions to the United
States Supreme Court for writ of certiorari.
Given the Appeals Court's earlier refusal of the appeal, NiSource
adjusted its reserve in the second quarter of 2008 to reflect the
portion of the Trial Court judgment for which NiSource would be
responsible, inclusive of interest. This amount was included in
"Legal and environmental reserves," on the Consolidated Balance
Sheet as of December 31, 2008.
On October 24, 2008, the Trial Court preliminarily approved a
Settlement Agreement with a total settlement amount of $380
million. The settlement received final approval by the Trial
Court on November 22, 2008.
NiSource's share of the settlement liability is up to
$338.8 million. NiSource complied with its obligations under the
Settlement Agreement to fund $85.5 million in the qualified
settlement fund by January 13, 2009. In addition, NiSource
provided a letter of credit on January 13, 2009 in the amount of
$254 million and thereby complied with its obligation to secure
the unpaid portion of the settlement which has since been drawn
down as settlement payments have been made.
The Trial Court entered its Order discharging the judgment on
January 20, 2009 and is supervising the administration of the
settlement proceeds.
As of September 30, 2010, NiSource had contributed a total of
$328.2 million into the qualified settlement fund, $277.3 million
of which was contributed prior to December 31, 2009.
As of September 30, 2010, $10.6 million of the maximum settlement
liability had not been paid. The remaining balance of the letter
of credit is sufficient to cover any remaining payments under the
Settlement Agreement, according to the Company's Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended September 30, 2010.
NiSource expects to be required to make additional payments not
expected to exceed the amount accrued, pursuant to the settlement,
upon notice from the Class Administrator.
NISOURCE INC: Court to Hear Appeal in Royalty Suits on Dec. 10
--------------------------------------------------------------
An appellate court is set to hear arguments of an appeal in class
actions initiated by John Thacker and Kentucky Poplar Creek
Development Company in the U.S. District Court of the Eastern
District of Kentucky.
On February 8, 2007, John Thacker filed a purported class action
alleging that Chesapeake Appalachia, L.L.C., has failed to pay
royalty owners the correct amounts pursuant to the provisions of
their oil and gas leases covering real property located within the
state of Kentucky. Columbia Energy Group has assumed the defense
of Chesapeake in the matter pursuant to the provisions of the
Stock Purchase Agreement dated July 3, 2003, among Columbia,
NiSource Inc., and Triana Energy Holding, Inc., Chesapeake's
predecessor-in-interest.
Mr. Thacker and certain other plaintiffs filed an Amended
Complaint on March 19, 2007, which, among other things, added
NiSource and Columbia as Defendants.
On March 31, 2008, the Court denied a Motion by Defendants to
Dismiss.
On June 3, 2008, the Plaintiffs moved to certify a class
consisting of all persons entitled to payment of royalty by
Chesapeake under leases operated by Chesapeake at any point after
February 5, 1992, on real property in Kentucky.
In June 2009, the parties to the Thacker litigation presented a
settlement agreement to the Court for preliminary approval.
The Court granted the Motion for Preliminary approval and held a
fairness hearing on November 10, 2009.
On March 3, 2010, the Court granted final approval of the
settlement.
On March 31, 2010, Kentucky Poplar Creek Development Company filed
a notice of appeal of that approval with the Sixth Circuit.
On October 9, 2008, Chesapeake tendered the Poplar Creek case to
Columbia and Columbia conditionally assumed the defense of the
matter pursuant to the provisions of the Stock Purchase Agreement.
Poplar Creek also purports to be a class action covering royalty
owners in the state of Kentucky and alleges that Chesapeake has
improperly deducted costs from the royalty payments; thus there is
some overlap of parties and issues between the Poplar Creek and
Thacker cases.
Chesapeake filed a motion for judgment on the pleadings in
December 2008, which was granted on July 2, 2009. Plaintiffs
appealed the dismissal to the Sixth Circuit Court of Appeals.
Oral argument has been set for December 9, 2010, for both the
Thacker and Poplar Creek cases, according to NiSource's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
NORFOLK SOUTHERN: Ashtabula Lawsuit Remains Pending
---------------------------------------------------
The complaint filed by the Ohio Attorney General in the Ashtabula
Court of Common Pleas alleging certain violations of water laws by
Norfolk Southern Corporation's coal dock in Ashtabula, Ohio,
remains pending.
The Ohio Attorney General, on June 25, 2010, filed a complaint in
the Ashtabula Court of Common Pleas alleging certain violations of
water laws by Norfolk Southern Corporation's coal dock in
Ashtabula, Ohio and seeking injunctive relief and civil penalties.
The complaint was filed simultaneously with a Consent Order for
Preliminary Injunction that governs the installation of additional
pollution control equipment at the dock. This matter relates to
previously disclosed enforcement activity initiated by the Ohio
Environmental Protection Agency in early 2008 and a recently
settled citizen suit filed by the City of Ashtabula in federal
court.
The Pennsylvania Department of Environmental Protection has
submitted to the Company a proposed Consent Assessment of Civil
Penalty with respect to several alleged environmental releases
from September 2007 to January 2009.
Although it will contest liability and the imposition of any
penalties, because these governmental proceedings with respect to
environmental laws and regulations involve potential fines,
penalties or other monetary sanctions in excess of US$100,000, the
Company describes them here consistent with SEC rules and
requirements.
No further updates were reported in the company's October 29,
2010, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
NORFOLK SOUTHERN: Consolidated Antitrust Suit Remains Pending
-------------------------------------------------------------
Norfolk Southern Corporation remains a defendant in a consolidated
antitrust class action lawsuit over fuel surcharges, according to
the company's October 29, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended Sept. 30,
2010.
Several antitrust class-action complaints have been filed against
Norfolk Southern and the other Class 1 railroads in various
federal district courts regarding fuel surcharges.
On Nov. 6, 2007, these actions were consolidated in the U.S.
District Court for the District of Columbia by the Judicial Panel
on Multi-district Litigation. Consolidated amended class-action
complaints were then filed against Norfolk Southern and three
other railroads on April 15, 2008.
The complaints allege violations of federal antitrust laws and
other laws with regard to the railroads' fuel surcharge programs.
Motions to dismiss the consolidated complaints were filed by the
railroads on May 30, 2008, and discovery has been stayed pending
resolution of these motions.
A lawsuit containing similar allegations against the company and
four other major railroads that was filed on March 25, 2008, in
the U.S. District Court for the District of Minnesota was
voluntarily dismissed by the plaintiff subject to a tolling
agreement entered into in August 2008.
On March 3, 2010, the company received a Shareholder Litigation
Demand Letter alleging that its officers and directors breached
fiduciary duties by causing the company to engage in anti-
competitive practices relating to the use of fuel surcharges,
which have harmed or will ultimately harm the company.
The allegations in the letter relate to those contained in the
ongoing fuel surcharge class action litigation.
In response to the letter, pursuant to Virginia law, the Board of
Directors has created a Special Litigation Committee to review and
evaluate the facts and circumstances surrounding the claims made
in the Demand Letter.
On September 28, 2010, the shareholder filed a shareholder
derivative complaint in the United States District Court in the
District of Columbia against the company, each of the current
members of the Board of Directors, and David Goode.
OVERSTOCK.COM INC: "Facebook Beacon" Suit Appeal Remains Pending
----------------------------------------------------------------
No ruling has been entered on the appeal asserted by certain
parties with respect to litigation settlement approved by a
California court in a class action suit over Overstock.com's use
of a "Facebook Beacon," according to the Company's Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended September 30, 2010.
On August 12, 2008, the Company along with seven other defendants,
were sued in the U.S. District Court for the Northern District of
California, by Sean Lane, and 17 other individuals, on their own
behalf and for others similarly in a class action suit, alleging
violations of the Electronic Communications Privacy Act, Computer
Fraud and Abuse Act, Video Privacy Protection Act, and
California's Consumer Legal Remedies Act and Computer Crime Law.
The complaint relates to the Company's use of a product known as
Facebook Beacon, created and provided to the Company by
Facebook, Inc. Facebook Beacon provided the means for Facebook
users to share purchasing data among their Facebook friends.
The parties extended by agreement the time for defendants' answer,
including the Company's answer, and thereafter, the Plaintiff and
Facebook proposed a stipulated settlement to the District Court
for approval, which would resolve the case without requirement of
financial contribution from the Company.
On March 17, 2010, over objections lodged by some parties, the
District Court accepted the proposed settlement.
Various parties objecting to the settlement have appealed and
their appeal is now pending.
OVERSTOCK.COM INC: Continues to Defend Breach of Contract Suit
--------------------------------------------------------------
Overstock.com Inc. says that it continues to defend a class action
asserted against it by Cynthia Hines for breach of contract.
On March 10, 2009, Overstock.com was sued in a class action filed
in the U.S. District Court for the Eastern District of New York.
Cynthia Hines, the nominative plaintiff on behalf of herself and
others similarly situated, seeks damages under claims for breach
of contract, common law fraud and New York consumer fraud laws.
The Plaintiff alleges that the Company failed to properly disclose
its returns policy to her and that the Company improperly imposed
a "restocking" charge on her return of a vacuum cleaner.
The Company filed a motion to dismiss based on assertions that its
agreement with its customers requires all such actions to be
arbitrated in Salt Lake City, Utah.
Alternatively, the Company asked that the case be transferred to
the U.S. District Court for the District of Utah, so that
arbitration may be compelled in that district.
On September 8, 2009, the motion to dismiss or transfer was
denied. The New York Court stated that the Company's browsewrap
agreement was insufficient under New York law to establish an
agreement with the customer to arbitrate disputes in Utah.
On October 8, 2009, the Company filed a Notice of Appeal of the
New York Court ruling. The appeal was denied.
The Company noted in its Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended September 30, 2010,
that the lawsuit is in its early stages. The Company intends to
vigorously defend the action.
PARTNER COMMUNICATIONS: Faces Class Action Lawsuit
--------------------------------------------------
Partner Communications Company Ltd. disclosed that it was served
with a lawsuit and a motion for the recognition of this lawsuit as
a class action, filed against Partner on October 31, 2010 in the
Tel-Aviv District Court.
The claim alleges that Partner did not grant its subscribers
certain benefits that they were entitled to according to Partner's
license.
If the lawsuit is recognized as a class action, the total amount
claimed is estimated by the plaintiff to be approximately
NIS 80 million.
Partner is reviewing and assessing the lawsuit and is unable, at
this preliminary stage, to evaluate, with any degree of certainty,
the probability of success of the lawsuit or the range of
potential exposure, if any.
About Partner Communications
Partner Communications Company Ltd. is an Israeli provider of
telecommunications services (cellular, fixed-line telephony and
internet services) under the orange(TM) brand. The Company
provides mobile communications services to over 3 million
subscribers in Israel. Partner's ADSs are quoted on the NASDAQ
Global Select Market(TM) and its shares are traded on the Tel Aviv
Stock Exchange (NASDAQ and TASE: PTNR).
Partner is an approximately 45%-owned subsidiary of Scailex
Corporation Ltd. Scailex's shares are traded on the Tel Aviv
Stock Exchange under the symbol SCIX and are quoted on "Pink
Quote" under the symbol SCIXF.PK. Scailex currently operates in
two major domains of activity in addition to its holding in
Partner: (1) the sole import, distribution and maintenance of
Samsung mobile handset and accessories products primarily to the
major cellular operators in Israel (2) management of its financial
assets.
PENN VIRGINIA: Faces Class Suits Over PVG Entities' Merger Deal
---------------------------------------------------------------
Penn Virginia Resource Partners, L.P., faces several purported
class action lawsuits resulting from the merger of several PVG
entities, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
On September 21, 2010, PVR Partners announced that it had entered
into an Agreement and Plan of Merger with Penn Virginia Resource
GP, LLC; Penn Virginia GP Holdings, L.P.; PVG GP, LLC; and PVR
Radnor, LLC or the "Merger Sub." Under the Agreement, PVG and PVG
GP will be merged into Merger Sub, with Merger Sub as the
surviving entity. The Merger Sub will subsequently be merged into
PVR GP, with PVR GP being the surviving entity.
PVG GP is PVR Partners' general partner.
In the transaction, PVG unitholders will receive consideration of
0.98 common units in PVR Partners for each common unit in PVG
representing aggregate consideration of approximately 38.3 million
common units in the Partnership.
Pursuant to the Merger Agreement and the Fourth Amended and
Restated Agreement of Limited Partnership of the Partnership, the
incentive distribution rights held by PVR Partners' general
partner will be extinguished, the 2.0% general partner interest in
PVR Partners held by its general partner will be converted into a
non-economic interest and approximately 19.6 million common units
in PVR Partners owned by PVG will be cancelled.
Subsequently, after the announcement of the merger transaction,
several class action complaints were filed:
A. Israni Action
On September 27, 2010, a putative class action complaint was
filed by a purported PVG unitholder against PVG; PVG GP; PVR
Partners; Penn Virginia Resource GP, LLC; PVR Radnor, LLC or
the Merger Sub and PVG GP's directors in the Court of
Chancery of the State of Delaware under the caption Israni
v. Penn Virginia GP Holdings, L.P., et al., civil action no.
5851-CC.
The complaint alleges that certain of the defendants
breached their fiduciary duties to PVG's public unitholders
in connection with the Merger by, among other things,
accepting insufficient consideration and that PVR Partners,
PVR GP, and Merger Sub aided and abetted those breaches.
Among other things, the complaint seeks an order: certifying
a class consisting of all PVG public unitholders;
preliminarily and permanently enjoining the consummation of
the Merger; in the event the Merger is consummated,
rescinding the Merger or awarding rescissory damages in an
unspecified amount, directing defendants to account for the
alleged damages sustained by PVG unitholders; and an award
of attorneys' fees and costs.
B. Rooney Action
On September 29, 2010, a putative class action complaint was
filed by a purported PVG unitholder against PVG, PVG GP, PVR
Partners, PVR GP, Merger Sub and PVG GP's directors and a
PVG GP officer in the Court of Chancery of the State of
Delaware under the caption Rooney v. Penn Virginia GP
Holdings, L.P., et al., civil action no. 5859-CC.
The complaint alleges that certain of the defendants
breached their fiduciary duties to PVG's public unitholders
in connection with the Merger by, among other things,
accepting insufficient consideration and agreeing to
preclusive deal protection devices and that PVR Partners,
PVR GP and PVG GP aided and abetted those breaches. Among
other things, the complaint seeks an order: certifying a
class consisting of all PVG public unitholders; enjoining
the consummation of the Merger, to the extent already
implemented; rescinding the Merger or awarding rescissory
damages in an unspecified amount; directing certain
defendants to account for damages suffered by PVG
unitholders; and an award of attorneys' fees and costs.
On October 7, 2010, the Court of Chancery of the State of
Delaware entered a stipulation and order consolidating the
Israni Action and the Rooney Action under the caption, "In
re Penn Virginia GP Holdings, L.P. Shareholder Litigation,
C.A. No. 5851-CC," and designating the complaint filed in
civil action no. 5851-CC as the operative complaint. The
Defendants have not yet answered or otherwise responded to
the complaint in the consolidated action.
C. Epoch Action
On October 1, 2010, a putative class action complaint was
filed by a purported PVG unitholder against PVG, PVR
Partners and certain of PVG GP's directors in the Court of
Common Pleas of Delaware County, Pennsylvania under the
caption Epoch v. Penn Virginia GP Holdings, L.P., et al.
In the complaint, the plaintiff alleges that certain of the
defendants breached their fiduciary duties to PVG's public
unitholders in connection with the Merger by, among other
things, accepting insufficient consideration and engaging in
a flawed process and that certain of the defendants aided
and abetted those breaches. Among other things, the
complaint seeks an order certifying a class consisting of
all PVG public unitholders; enjoining the consummation of
the Merger; rescinding the Merger; directing the board of
directors of PVG GP to obtain a transaction that is in the
best interests of the PVG unitholders and an award of
attorneys' fees and costs.
The Defendants have not yet answered or otherwise responded
to the complaint.
D. Scheifele Action
On October 6, 2010, a putative class action complaint was
filed by a purported PVG unitholder against PVG, PVG GP, PVR
Partners, PVR GP, Merger Sub and certain of PVG GP's
officers and directors in the Court of Common Pleas of
Delaware County, Pennsylvania under the caption Scheifele v.
Shea, et al.
In the complaint, the plaintiff alleges that certain of the
defendants breached their fiduciary duties to PVG's public
unitholders in connection with the Merger by, among other
things, means of an unfair process and an unfair price and
that certain of the defendants aided and abetted those
breaches. Among other things, the complaint seeks an order
certifying a class consisting of all PVG public unitholders;
enjoining the Merger preliminarily or permanently;
rescinding the Merger; awarding damages; and awarding
attorneys' fees and costs.
The Defendants have not yet answered or otherwise responded
to the complaint.
POTTERY BARN: Recalls 7,300 Pottery Barn Lamps
----------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Pottery Barn, of San Francisco, Calif., announced a voluntary
recall of about 7,300 Pottery Barn Lamps. Consumers should stop
using recalled products immediately unless otherwise instructed.
The electrical wire that runs through the lamps can be pinched or
severed at the lamp's adjustable joint, posing a risk of electric
shock to consumers.
Pottery Barn has received one report of a consumer who received an
electrical shock when she touched the lamp.
This recall involves Pottery Barn's Clay Task Lamp (Model
#2467553), the Montgomery Task Lamp (Model #9691783) and the
Montgomery Floor Lamp (Model #9691775). All of the lamps have
bronze-colored finishes. "Pottery Barn" and the model number are
printed on the bottom of the lamp. Pictures of the recalled
products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11037.html
The recalled products were manufactured in India and sold through
Pottery Barn stores nationwide, in Pottery Barn's catalog and on
the firm's Web site http://www.potterybarn.com/from July 2009
through August 2010 for between $60 and $300.
Consumers should immediately stop using the recalled lamps, unplug
them and contact Pottery Barn for instructions on how to return
the lamp for a full refund. For additional information, contact
Pottery Barn toll-free at (877) 851-7890 between 4:00 a.m. and
9:00 p.m., Pacific Time, seven days a week, or visit the firm's
Web site at http://www.potterybarn.com/
SYNGENTA CROP: Discovery in Atrazine Class Action Suit Continues
----------------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports an
order settling a dispute over discovery documents is the latest
action in a federal suit brought against the makers of the weed
killer atrazine.
U.S. District Court Judge Phil Gilbert entered an order Nov. 4
resolving issues related to what documents a proposed class of
water providers in Illinois, Missouri, Kansas and other states can
use in trial and pre-trial hearings.
The proposed class, led by the City of Greenville and other named
plaintiffs, are suing Syngenta Crop Protection Inc. and its parent
company, Syngenta AG, for alleged water contamination.
The plaintiffs contend that atrazine runs off farm fields, fouls
their drinking water supplies, and causes health problems.
While the U.S. Environmental Protection Agency has ruled that
atrazine is safe in drinking water up to three parts per billion,
the plaintiffs contend smaller amounts cause problems.
A dismissal motion filed May 18 by the defense is also pending.
Syngenta is also fighting a nearly identical suit filed in 2004 by
the same group of attorneys in Madison County.
That group, led by Stephen Tillery, filed six class actions in
Madison County six years ago on behalf of lead plaintiff Holiday
Shores Sanitation District and several Illinois cities.
Those cases are on their way to the Fifth District Appellate Court
in Mount Vernon.
Madison County Circuit Judge Barbara Crowder certified defense
questions for appeal, and is considering whether or not to certify
questions for appeal brought by the plaintiffs on Nov. 8.
All of the questions relate to an order governing what discovery
Holiday Shores could take from non-parties in the case, such as
the Illinois Farm Bureau, chemical industry lobbying groups and a
non-profit organization.
The federal case filed earlier this year by Mr. Tillery has been
proceeding through its initial discovery phase.
Syngenta also moved to dismiss the federal case in May, citing a
lack of jurisdiction.
The Switzerland-based company claims that there is not a
significant enough tie to bind it to Illinois and that the federal
court would violate due process by asserting jurisdiction in the
case.
Synengta AG has won dismissal in federal court before on the same
grounds.
Gilbert allowed Syngenta to cite additional authority in support
of its dismissal move Oct. 29.
His Nov. 4 order also gives Greenville and the other lead
plaintiffs until Dec. 19 to comply with defense document
production requests.
Kurtis Reeg, Michael Pope and Mark Surprenant represent Syngenta.
The case is federal case number 10-188-JPG-PMF.
The Madison County Syngenta case is case number 04-L710.
WENNER MEDIA: Faces Class Action Suit Over Aggressive Marketing
---------------------------------------------------------------
Eriq Gardner, writing for Hollywood Reporter, reports Wenner
Media, the publisher of Rolling Stone, US Weekly and Men's
Journal, are going to court.
A class action lawsuit has been filed against the publisher for
aggressive marketing.
According to the complaint, filed on November 9 in Illinois
District Court, Wenner Media and Consumer Benefit Services have
been sending text messages to cell phones of consumers offering
vouchers for magazine subscriptions.
The proposed class action, led by an Indiana woman named Karen
Schrock, claims the SMS messages violated section 227 of the
Telephone Consumer Protection Act. That Act restricts the use of
automatic dialing systems to cell phones.
Damages are said to be a minimum of $500 per violation, or more
than $5 million total.
In the past few years, Wenner has been fighting over its
aggressive promotional and merchandising campaigns.
This year, the company convinced a federal court to dismiss a
challenge by dozens of indie rock bands who objected to a Rolling
Stone spread next to an advertisement for cigarettes.
Wenner also recently settled a lawsuit targeting the company's use
of magazine covers on t-shirts and tote bags.
WEST BANCORP: Subsidiary Faces Class Suit Over Overdraft Fees
-------------------------------------------------------------
West Bancorporation Inc.'s subsidiary, West Bank was named a
defendant on September 29, 2010, in a purported class action
lawsuit that asserts overdraft fees charged by West Bank on bank
card transactions are in fact interest charges that violate Iowa
usury laws, according to the Company's Form 10-Q filing with the
U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
West Bank believes the allegations of the lawsuit are both
factually and legally inaccurate.
West Bank says it will vigorously defend the litigation.
XCEL ENERGY: Unit Remains a Defendant in Gas-Trading Suit
---------------------------------------------------------
Xcel Energy, Inc.'s wholly owned subsidiary, e Prime, Inc.,
remains a defendant in the matter Texas-Ohio Energy vs.
CenterPoint Energy et al.
e Prime was in the business of natural gas trading and marketing
although e prime has not engaged in natural gas trading or
marketing activities since 2003. Thirteen lawsuits have been
commenced against e prime and Xcel Energy (and NSP-Wisconsin, in
one instance); alleging fraud and anticompetitive activities in
conspiring to restrain the trade of natural gas and manipulate
natural gas prices.
The initial gas-trading lawsuit, a purported class action brought
by wholesale natural gas purchasers, was filed in November 2003 in
the U.S. District Court in the Eastern District of California. e
prime is one of several defendants named in the complaint.
This case is captioned Texas-Ohio Energy vs. CenterPoint Energy et
al.
The other twelve cases arising out of the same or similar set of
facts were filed. Many of these cases involve multiple defendants
and have been transferred to Judge Phillip Pro of the U. S.
District Court in Nevada, who is the judge assigned to the Western
Area Wholesale Natural Gas Antitrust Litigation.
No further details regarding the Texas-Ohio Energy Action were
disclosed in Xcel Energy's October 29, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
XCEL ENERGY: Plaintiffs Want 5th Circuit to Review Appeal
---------------------------------------------------------
Plaintiffs in a class action lawsuit against Xcel Energy, Inc., et
al., asked the U.S. Supreme Court to direct the U. S. Court of
Appeals for the Fifth Circuit to review their earlier appeal on
the dismissal of the class action, according to the company's
October 29, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
In 2006, Xcel Energy received notice of a purported class action
lawsuit filed in U. S. District Court in the Southern District of
Mississippi. The lawsuit names more than 45 oil, chemical and
utility companies, including Xcel Energy, as defendants and
alleges that defendants' CO2 emissions "were a proximate and
direct cause of the increase in the destructive capacity of
Hurricane Katrina."
Plaintiffs allege in support of their claim, several legal
theories, including negligence and public and private nuisance and
seek damages related to the loss resulting from the hurricane.
In August 2007, the court dismissed the lawsuit in its entirety
against all defendants on constitutional grounds.
Plaintiffs filed a notice of appeal to the U. S. Court of Appeals
for the Fifth Circuit.
On Oct. 16, 2009, the U. S. Court of Appeals for the Fifth Circuit
reversed the district court decision, in part, concluding that the
plaintiffs pleaded sufficient facts to overcome the constitutional
challenges that formed the basis for dismissal by the district
court.
A subsequent petition by defendants, including Xcel Energy, for en
banc review was granted.
On May 28, 2010, the U. S. Court of Appeals for the Fifth Circuit
ruled that it lacked an en banc quorum of nine active members to
hear the case. It dismissed the appeal, which resulted in the
reinstatement of the district court's opinion dismissing the case.
Plaintiffs subsequently filed with the U.S. Supreme Court a writ
of mandamus, which is a procedure requesting the court to order
the Fifth Circuit to review plaintiffs' earlier appeal.
Defendants intend to oppose this request.
XEROX CORP.: Remains a Defendant in Consolidated Suit
-----------------------------------------------------
Xerox Corporation continues to defend itself in a consolidated
securities class action in Connecticut, according to the company's
Form 10-Q filing with the Securities and Exchange Commission for
the quarter ended September 30, 2010.
The consolidated securities action, consisting of 17 cases, is
filed against Xerox, Barry Romeril, Paul Allaire and G. Richard
Thoman. It is a class action on behalf of all persons and
entities who purchased Xerox Corporation common stock during the
period October 22, 1998 through October 7, 1999 inclusive and who
suffered a loss as a result of misrepresentations or omissions by
the Defendants as alleged by the Class Plaintiffs.
The Class alleges that in violation of Section 10(b) and/or 20(a)
of the Securities Exchange Act of 1934, as amended, and SEC Rule
10b-5, each of the defendants is liable as a participant in a
fraudulent scheme and course of business that operated as a fraud
or deceit on purchasers of the company's common stock during the
Class Period by disseminating materially false and misleading
statements and/or concealing material facts relating to the
defendants' alleged failure to disclose the material negative
impact that the April 1998 restructuring had on the company's
operations and revenues.
The complaint further alleges that the alleged scheme:
(i) deceived the investing public regarding the economic
capabilities, sales proficiencies, growth, operations and
the intrinsic value of the Company's common stock;
(ii) allowed several corporate insiders, such as the named
individual defendants, to sell shares of privately held
common stock of the Company while in possession of
materially adverse, non-public information; and
(iii) caused the individual plaintiffs and the other members of
the purported class to purchase common stock of the Company
at inflated prices.
The complaint seeks unspecified compensatory damages in favor of
the plaintiffs and the other members of the purported class
against all defendants, jointly and severally, for all damages
sustained as a result of defendants' alleged wrongdoing, including
interest thereon, together with reasonable costs and expenses
incurred in the action, including counsel fees and expert fees.
In 2001, the Court denied the defendants' motion for dismissal of
the complaint.
The plaintiffs' motion for class certification was denied by the
Court in 2006, without prejudice to refiling.
In February 2007, the Court granted the motion of the
International Brotherhood of Electrical Workers Welfare Fund of
Local Union No. 164, Robert W. Roten, Robert Agius and Georgia
Stanley to appoint them as additional lead plaintiffs.
In July 2007, the Court denied plaintiffs' renewed motion for
class certification, without prejudice to renewal after the Court
holds a pre-filing conference to identify factual disputes the
Court will be required to resolve in ruling on the motion. After
that conference and Agius's withdrawal as lead plaintiff and
proposed class representative, in February 2008 plaintiffs filed a
second renewed motion for class certification.
In April 2008, defendants filed their response and motion to
disqualify Milberg LLP as a lead counsel.
On September 30, 2008, the Court entered an order certifying the
class and denying the appointment of Milberg LLP as class counsel.
Subsequently, on April 9, 2009, the Court denied defendants'
motion to disqualify Milberg LLP.
On November 6, 2008, the defendants filed a motion for summary
judgment. Briefing with respect to the motion is complete. The
Court has not yet rendered a decision.
The parties also filed motions to exclude the testimony of certain
expert witnesses. On April 22, 2009, the Court denied plaintiffs'
motions to exclude the testimony of two of defendants' expert
witnesses.
On September 30, 2010, the Court denied plaintiffs' motion to
exclude the testimony of another of defendants' expert witnesses.
The Court also granted defendants' motion to exclude the testimony
of one of plaintiffs' expert witnesses, and granted in part and
denied in part defendants' motion to exclude the testimony of
plaintiffs' two remaining expert witnesses.
Xerox and the individual defendants deny any wrongdoing and
continue to vigorously defending the action.
In the course of litigation, Xerox says it periodically engages in
discussions with plaintiffs' counsel for possible resolution of
the matter.
The company notes that should developments cause a change in its
determination as to an unfavorable outcome, or result in a final
adverse judgment or a settlement for a significant amount, there
could be a material adverse effect on its results of operations,
cash flows and financial position in the period in which that
change in determination, judgment or settlement occurs.
XEROX CORP.: ACS Merger-Related Suit in Texas Dismissed
-------------------------------------------------------
A Texas court has dismissed a class action related to Xerox
Corporation's merger transaction with Affiliated Computer
Services, Inc., the company noted in its Form 10-Q filing with the
Securities and Exchange Commission for the quarter ended
September 30, 2010.
In late September and early October 2009, nine purported class
action complaints were filed by ACS shareholders challenging ACS's
proposed merger with Xerox.
Two actions were filed in the Delaware Court of Chancery which
subsequently were consolidated into one action.
Seven actions were filed in state courts in Texas, which
subsequently were consolidated into one action in the Dallas
County Court at Law No. 3.
The operative complaints in the Delaware and Texas actions name as
defendants ACS and/or the members of ACS's board of directors and
Xerox Corporation and/or Boulder Acquisition Corp., a wholly owned
subsidiary of Xerox.
On October 22, 2009, a class of ACS shareholders was certified in
the Delaware action.
Pursuant to a stipulation entered into by all parties in the
Delaware and Texas actions on November 20, 2009, the Texas
plaintiffs agreed to stay prosecution of the Texas action until
agreed otherwise by the defendants and ordered by the Texas court,
and all plaintiffs agreed that any further prosecution of the
Delaware and Texas actions, or any claims that could have been
brought in those actions, would proceed in the Delaware action.
On December 11, 2009, plaintiffs in the Delaware action filed an
amended complaint alleging, among other things, that:
(i) the Individual Defendants breached their fiduciary duties
to ACS and its shareholders by authorizing the sale of ACS
to Xerox for what plaintiffs deem inadequate consideration
and pursuant to inadequate process, and the Xerox
Defendants aided and abetted these alleged breaches;
(ii) the Individual Defendants breached their fiduciary duties
to ACS and its shareholders by agreeing to the provisions
of the merger agreement relating to the consideration to be
paid to the holders of Class B shares which the Delaware
plaintiffs allege violates the ACS certificate of
incorporation and is, therefore, void, and the Xerox
Defendants aided and abetted these alleged breaches; and
(iii) the Individual Defendants breached their fiduciary duties
by failing to disclose material facts in the October 23,
2009 Form S-4 filed with the SEC in connection with the
merger.
The amended complaint seeks, among other things, to enjoin the
defendants from consummating the merger on the agreed-upon terms,
and unspecified compensatory damages, together with the costs and
disbursements of the action.
On December 16, 2009, the Delaware court ordered a stipulation
between Xerox, ACS and certain Individual Defendants and the
plaintiffs in the Delaware action providing, among other things,
that in exchange for modifying certain provisions of the merger
agreement and other consideration, the plaintiffs would not seek
to enjoin any shareholder vote on the closing of the merger, nor
take any action for the purpose of preventing or delaying the
closing of the merger.
On January 20, 2010, the Delaware court ordered a stipulation by
all parties in the Delaware action providing, among other things,
for a trial to take place May 10-14, 2010 on the claims for
damages asserted in the action.
On January 29, 2010, defendants moved to dismiss the amended
complaint, and on February 8, 2010, plaintiffs moved for partial
summary judgment. That motion was fully briefed and argued before
the Delaware court on April 5, 2010, and the Delaware court
reserved judgment on the motion.
All defendants answered the amended complaint, mooting their
previously filed motions to dismiss.
On April 28, 2010, plaintiffs filed a motion seeking leave to
amend and to supplement the amended complaint.
On May 19, 2010, Xerox, ACS, Boulder, and the other defendants and
plaintiffs in the Delaware and Texas Actions entered into a
Stipulation and Agreement of Compromise and Settlement resolving
all claims by ACS shareholders arising out of Xerox's acquisition
of ACS, including all claims in the Delaware and Texas Actions.
The defendants in the Delaware and Texas Actions did not admit to
any wrongdoing as part of the Settlement, which provided for an
aggregate payment of $69 million on behalf of all defendants,
including a payment of approximately $36 million by Xerox, net of
expected insurance proceeds.
The Delaware court approved the Settlement at a hearing held on
August 24, 2010. The Settlement is now final.
In light of the Delaware court's approval of the Settlement, on
October 13, 2010, the Texas court signed an order dismissing the
Texas action.
* EU Air Cartel Fine May Speed Up Class Suit in Australia
---------------------------------------------------------
Aircargo Asia-Pacific magazine reports a European Union decision
to fine 11 airlines including Qantas a total of US$1.1 billion for
coordinating an air-cargo fuel and security surcharge cartel
should speed up an Australian class action lawsuit on the same
matter, a law firm says.
"The airlines have been trying to deny that there is a case to
answer in this country," Brooke Dellavedova of class-action law
firm Maurice Blackburn said.
"Given Australia's geographic isolation and our reliance on
international air freight, there is no doubt that Australian
businesses were affected."
Qantas, Air France-KLM and British Airways were among airlines
fined on November 10 by the European Commission.
Maurice Blackburn had sued seven airlines including Qantas and
British Airways on behalf of Australian businesses, claiming they
were overcharged on air-cargo shipments.
* Foreclosure Class Action Lawsuits on the Rise in the U.S.
-----------------------------------------------------------
Sarah Mueller, writing for HousingWire, reports class-action
lawsuits against large banks active in residential mortgage
lending are on the rise, according to a National Law Journal
article published online.
Similar suits have been filed against J.P. Morgan, Bank of
America, Citigroup, Wells Fargo and Ally Financial. And more are
expected as delinquent homeowners fight foreclosures and investors
fight to recoup money from securitized problem mortgages.
The rise of these lawsuits is just the latest news in a
foreclosure scandal that broke nationwide after an employee of
Ally Financial admitted that he signed thousands of foreclosure
documents without reading them. Since then, several robo-signing
issues have popped up, including the revelation that some
affidavits filed in courts have been faulty.
Lawsuits against Ally have been filed in Florida and Maine, the
article said. Other class actions involving robo-signing have
been filed in federal courts in Indiana, Kentucky, Maryland and
New Jersey.
At least 19 states, including Iowa and Texas, are conducting
separate investigations to determine whether state laws were
broken, the article said. In addition, all 50 attorneys general
are investigating robo-signing issues in a matter being led by
Iowa AG Tom Miller. Lame duck Ohio AG Richard Cordray, the first
AG to go after Ally Financial in the courts, filed a lawsuit in
early October. The company denies any intentional wrongdoing.
The National Law Journal article did not say how many class action
foreclosure lawsuits are currently pending in the nation's
courtrooms.
* U.S. Banks Escaping National Action Lawsuits Over Foreclosures
----------------------------------------------------------------
Dan Levine and Jeff Roberts, writing for Reuters Legal, report
lenders snarled in the legal thicket over shoddy U.S. foreclosure
procedures have so far avoided national class action lawsuits from
homeowners, largely because borrowers cannot demonstrate economic
harm, according to plaintiff lawyers.
Several large plaintiff firms circled around banks when reports of
problems with foreclosure affidavits snowballed in late September.
But as servicers like Bank of America Corp, Ally Financial and
JPMorgan Chase attempt to resolve a 50-state probe into their
practices -- and other legal challenges -- big class action
lawyers have taken a pass on diving into the mess.
"We looked at this up one side, down the other," Joseph Cotchett,
a partner at the San Francisco office of Cotchett, Pitre &
McCarthy, said on Wednesday.
Ultimately, the firm decided it would not file suit over the
affidavits, Mr. Cotchett said, because most borrowers are actually
behind on their payments.
That makes it too difficult to make a claim for serious damages,
he said. "It's about as basic as that," Mr. Cotchett said.
A public furor erupted in recent months over whether banks cut
corners in the foreclosure process with so-called "robo-signers"
of legal documents used to justify taking homes. Servicers
briefly halted foreclosures and evictions as state and federal
regulators announced investigations.
Banks have disclosed some legal challenges from homeowners, but
the class action lawsuits they are facing have not been national
in scope.
In defending one Indiana class action, Bank of America has echoed
the conclusion reached by some plaintiff lawyers in arguing that
the borrower cannot show harm because they would have lost their
home anyway.
Plaintiff attorneys are usually paid a portion of the damages they
recover.
Some plaintiff lawyers who have devoted resources to the issue
haven't walked away yet. Bruce Simon, a partner with the San
Francisco office of Pearson, Simon, Warshaw & Penny, said last
week that his firm still intends to file a national class action.
And Eric Fastiff, a partner at the San Francisco office of Lieff
Cabraser, said his firm is still examining the issue.
"Investigations take time," he said.
Andrew Friedman, a partner at the Washington office of Cohen
Milstein, said he strongly believes many foreclosures were done
improperly.
But getting a judge to certify a national class action is
difficult, he said, because homeowners have wildly varying
circumstances in terms of their relations with servicers.
That, combined with the damages issue, makes a class action tough.
"I've looked at it pretty seriously, but I keep running into the
same buzzsaw," Mr. Friedman said.
The Indiana class action is Davis v. Countrywide Home Loans Inc.
et al, U.S. District Court, Southern District of Indiana, No.
10-01303. The plaintiffs are represented by Eric Pavlack, Irwin
Levin, Richard Shevitz, Vess Miller and Gabriel Hawkins of Cohen &
Malad in Indianapolis. The defendants are represented by Libby
Goodknight and Matthew Strzynski of Krieg DeVault in Indianapolis.
*********
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
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re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
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are $25 each. For subscription information, contact Christopher
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