/raid1/www/Hosts/bankrupt/CAR_Public/101216.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, December 16, 2010, Vol. 12, No. 248
Headlines
AMBAC FINANCIAL: Continues to Defend Consolidated Suit in New York
AMBAC FINANCIAL: Awaits Ruling on Motion to Dismiss "Tolin" Suit
AMERICAN OIL & GAS: Continues to Defend Suits Over Hess Merger
AMERIGAS PARTNERS: Court Approves Settlement of Class Action Suits
ANTS SOFTWARE: Court Certifies California Suit as Class Action
APPLIED MINERALS: Court Approval of Class Suit Settlement Pending
AUSBANC: To Face Class Action Over Air-Traffic Strikes
BANKATLANTIC BANCORP: Jury Trial Starts for Securities Lawsuit
BAYER AG: Law Firm Uses Facebook to Promote Class Action
BENTON HARBOR: Emergency Financial Manager to Face Class Action
BRE BANK: Wierzbowski Eversheds to File Class Action
CHARLIE CHRIST: Campaign Fund Suit Won't Proceed as Class Action
CHINA EDUCATION: Ryan & Maniskas Files Securities Class Action
CHINA NATURAL GAS: Faces 2 Class Suits Over Stock Price Decline
CHINA NORTH: Three Securities Class Action Suits Still Pending
CONSECO INC: Fairness Hearing Set for Feb. 17 in Indianapolis
CRESTWOOD: Settles Class Action for $2.8 Million
DEAN FOODS: Settles Class Action for $30 Million
FALCONSTOR SOFTWARE: Court Consolidates Two Securities Lawsuits
FIRST HEALTH: Class Action Settlement Awaits Court Approval
FIRSTMERIT BANK: Faces Class Action Over Overdraft Fees
GAMING PARTNERS: Awaits Ruling on Appeal From Class Suit Dismissal
GENTIVA HEALTH: Kaplan Fox & Kilsheimer Files Class Action
GMAC MORTGAGE: Can Resume Foreclosure Sales, Judge Rules
GOOGLE INC: Faces Class Action in Calif. Over Toolbar Software
HARBOR 400: Sued for Refusing to Pay Interest on Security Deposit
HILL-ROM HOLDINGS: Appeal of Batesville Suit Dismissal Pending
HILL-ROM HOLDINGS: No Claim Filed Against Antitrust Settlement
IMICO WEST END: Sued for Diverting Trust Funds Under NY Lien Law
INTERACTIVE DATA: Court Okays Delaware Class Action Settlement
INTERSECTIONS INC: Continues to Defend Telemarketing Suit in Texas
INTERSECTIONS INC: Continues to Defend Class Action Suit in Calif.
JONES SODA CO: Plaintiffs Have Until January to File Petition
KEYBASE FINANCIAL: Faces Class Action Over Investment Losses
LA FEDERATION DES MEDECINS: Ordered to Pay $7MM in Class Suit
LANCE INC: Settles Lawsuits Over Proposed Merger With Snyder's
LML PAYMENT: Appeal From Suit Dismissal Pending With Supreme Court
MUNICH RE: Court Revives Armenians' Suit Over Insurance Benefits
NATIONAL COAL CORP: Faces Shareholder Class Suit Over Ranger Deal
NETLIST INC: Obtains Final Okay of Settlement With Stockholders
ONVIA INC: Awaits Final Resolution of Appeals in Securities Suit
PACIFIC WEBWORKS: Faces Two More Consumer Fraud Class Suits
PFIZER INC: Appeal on Amendment Denial Pending in Wyeth Suit
QVC: Recalls 7,500 Enamel-Coated 8-Inch Cast Iron Skillets
RINO INTERNATIONAL: Berman DeValerio Files Securities Class Suit
SKY-MOBI LIMITED: Class Action Lawsuits Vs. CFO Still Pending
SMART ONLINE: To Pay $350,000 to Resolve Securities Class Suit
STATION CASINOS: Obtains Final OK of Nevada Class Suit Settlement
SUMMIT CONSULTING: OGH Gets Donation From Class Settlement
TOYOTA MOTOR: Can Depose Non-California Plaintiffs in MDL
UNIV OF PITTSBURGH: West Penn CEO Alleges Market Monopoly
WAL-MART STORES: Sellers to Argue for Plaintiffs in Class Suit
WARNER MUSIC: Lawsuit Over Digital Music Downloads Remains Pending
WILMINGTON TRUST: Kaplan Fox Files Securities Class Action
XO HOLDINGS: Continues to Defend Zheng Derivative Class Suit
*********
AMBAC FINANCIAL: Continues to Defend Consolidated Suit in New York
------------------------------------------------------------------
Ambac Financial Group, Inc., and certain of its present or former
officers or directors have been named in lawsuits that allege
violations of the federal securities laws and state law. Various
putative class action suits alleging violations of the federal
securities laws have been filed against the Company and certain of
its present or former directors or officers. These suits include
four class actions filed in January and February of 2008 in the
United States District Court for the Southern District of New York
that were consolidated on May 9, 2008 under the caption In re
Ambac Financial Group, Inc. Securities Litigation, Lead Case No.
08 CV 411. On July 25, 2008, another suit, Painting Industry
Insurance and Annuity Funds v. Ambac Assurance Corporation, et
al., case No. 08 CV 6602, was filed in the United States District
for the Southern District of New York.
On or about August 22, 2008, a consolidated amended complaint was
filed in the consolidated action. The consolidated amended
complaint includes the allegations presented by the original four
class actions, the allegations presented by the Painting Industry
action, and additional allegations. The consolidated amended
complaint purports to be brought on behalf of purchasers of
Ambac's common stock from October 25, 2006 to April 22, 2008, on
behalf of purchasers of Ambac's "DISCS", issued in February of
2007, and on behalf of purchasers of equity units and common stock
in Ambac's March 2008 offerings. The suit names as defendants the
Company, the underwriters for the three offerings, the Company's
independent Certified Public Accountants and certain present and
former directors and officers of the Company. The complaint
alleges, among other things, that the defendants issued materially
false and misleading statements regarding Ambac's business and
financial results and guarantees of CDO and MBS transactions and
that the Registration Statements pursuant to which the three
offerings were made contained material misstatements and omissions
in violation of the securities laws.
On August 27, 2009, the Company and the individual defendants
named in the consolidated securities action moved to dismiss the
consolidated amended complaint. On February 22, 2010, the Court
dismissed the claims arising out of the March 2008 equity units
and common stock offering -- resulting in the dismissal of the
Company's independent Certified Public Accountants from the action
-- and otherwise denied the motions to dismiss.
On April 15, 2010, the Court ordered a Discovery Plan and Proposed
Pretrial Schedule, pursuant to which discovery was scheduled to
commence on May 10, 2010, with dispositive motions due by
December 2, 2011, the Company disclosed in its Nov. 15, 2010 Form
10-Q filed with the Securities and Exchange Commission for the
quarter ended September 30, 2010.
AMBAC FINANCIAL: Awaits Ruling on Motion to Dismiss "Tolin" Suit
----------------------------------------------------------------
Ambac Financial Group, Inc., is awaiting a ruling on its motion to
dismiss a lawsuit filed by securities buyers in New York,
according to the Company's November 15, 2010 Form 10-Q filed with
the Securities and Exchange Commission for the quarter ended
September 30, 2010.
On December 24, 2008, a complaint in a putative class action
entitled Stanley Tolin et al. v. Ambac Financial Group, Inc. et
al., asserting alleged violations of the federal securities laws
was filed in the United States District Court for the Southern
District of New York against Ambac, one former officer and
director and one former officer, Case No. 08 CV 11241.
An amended complaint was subsequently filed on January 20, 2009.
This action is brought on behalf of all purchasers of Structured
Repackaged Asset-Backed Trust Securities, Callable Class A
Certificates, Series 2007-1, STRATS(SM) Trust for Ambac Financial
Group, Inc. Securities 2007-1 from June 29, 2007 through April 22,
2008. The STRATS are asset-backed securities that were allegedly
issued by a subsidiary of Wachovia Corporation and are allegedly
collateralized solely by Ambac's DISCS. The complaint alleges,
among other things, that the defendants issued materially false
and misleading statements regarding Ambac's business and financial
results and Ambac's guarantees of CDO and MBS transactions, in
violation of the securities laws.
On April 15, 2009, the Company and the individual defendants named
in Tolin moved to dismiss the amended complaint. On December 23,
2009, the Court initially denied defendants' motion to dismiss,
but later recalled that decision and requested further briefing
from parties in the case before it rendered a decision on the
motion to dismiss.
The additional briefing was completed on March 5, 2010, and oral
argument on the motion to dismiss was heard on August 4, 2010.
AMERICAN OIL & GAS: Continues to Defend Suits Over Hess Merger
--------------------------------------------------------------
American Oil & Gas, Inc., members of its board of directors, Hess
Corporation and Hess Investment Corp. are named as defendants in a
number of putative class action lawsuits brought by certain of the
Company's stockholders challenging the Company's proposed merger
with Hess, the Company disclosed in its November 15, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2010.
The lawsuits were filed in state and federal courts in Colorado
and in state courts in Nevada. The lawsuits seek to certify a
class of all of the Company's stockholders (excluding defendants
and related or affiliated persons or entities), and generally
allege that the members of the Comapany's board of directors,
aided and abetted by the Company and Hess, breached their
fiduciary duties to the Company's stockholders by entering into
the agreement and plan of merger for the sale of the Company to
Hess for allegedly inadequate consideration and pursuant to an
allegedly inadequate process. The Company entered into the Plan
of Merger with Hess on July 27, 2010.
In particular, the complaints variously allege that:
(i) the merger consideration is inadequate given the Company's
past and purported future economic performance as compared
to Hess' past and purported future economic performance,
(ii) the director defendants will personally benefit from the
vesting of illiquid or restricted stock options,
(iii) the voting and lockup agreements, termination fee, and non-
solicitation provision of the agreement and plan of merger
improperly deter a superior, alternative offer from
emerging,
(iv) the agreement and plan of merger did not contain a "collar"
or pricing adjustment provision tied to Hess' trading price,
and
(v) American's board of directors did not adequately explore
alternative transactions.
The lawsuits seek, among other things, to enjoin the defendants
from consummating the merger on the agreed-upon terms or to
rescind the merger to the extent already implemented.
The known cases filed to date include:
1. Edgar Cobb, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., 1:10-CV-
01833-PAB, filed in the United States District Court for the
District of Colorado
2. Jeffrey P. Feinman, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., 1:10-CV-
01846-MSK, filed in the United States District Court for the
District of Colorado
3. Morton Finkel, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., 1:10-CV-
01808-RPM, filed in the United States District Court for the
District of Colorado
4. Jeffrey Veigel, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., 1:10-CV-
01852-MSK, filed in the United States District Court for the
District of Colorado
5. Ernest Cox Wilkerson, Herb D. Johnson and Virginia Park, On
Behalf of Themselves and All Others Similarly Situated v.
American Oil & Gas, et al., 2010-CV-6153, filed in the
District Court of the State of Colorado For the City and
County of Denver
6. James Thurston, Individually and on Behalf of All Others
Similarly Situated v. Patrick D. O'Brien, et al, 2010CV6141,
filed in the District Court of the State of Colorado For the
City and County of Denver
7. Jeffrey Veigel, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., 1:10-CV-
01852-MSK, filed in the District Court of the State of
Colorado For the City and County of Denver
8. Richard Buckman, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., Case No.
10 DC 00322, filed in the First Judicial District Court of
the State of Nevada in and for Carson City
9. Ronald J. Kane, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., Case No.
A-10-622644-B, filed in the Eighth Judicial District Court
of the State of Nevada in and for Clark County
10. Joseph Luvara, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., Case No.
10-DC-0032-1B, filed in the First Judicial District Court of
the State of Nevada in and for Carson City
11. Roger Smitherman, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, et al., Case No.
CV-10-02434, filed in the Second Judicial District Court of
the State of Nevada in and for County of Washoe
12. David Speight, Individually and on Behalf of All Others
Similarly Situated v. Patrick D. O'Brien, et al., Case No.
10-DC-00340-1B, filed in the Second Judicial District Court
of the State of Nevada in and for Carson City
13. Michael Kunaman, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, Inc. et. al, Case
No. 10-02484-B6, filed in the Second Judicial District Court
of the State of Nevada in and for the County of Washoe
14. Michael Kunaman, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, Inc. et al., Case
No. 10 OC 00435-1B, filed in the First Judicial Court of the
State of Nevada in and for the County of Carson City
15. Jorge Quiros, Individually and on Behalf of All Others
Similarly Situated v. Andrew Calerich et. al., Case No. A-
10-622573-C, filed in the Eighth Judicial District Court of
the State of Nevada in and for Clark County
16. Colin Trueman, Individually and on Behalf of All Others
Similarly Situated v. American Oil & Gas, Inc. et al., Case
No. A-10-624248-C, filed in the Eighth Judicial District
Court of the State of Nevada in and for Clark County
On September 24, 2010, the Speight court entered an order
dismissing the claims against the Company, Hess Investment
Corporation, and Hess on grounds of forum non conveniens, and a
motion to dismiss as to the Individual Directors is pending.
The Kane action was voluntarily dismissed on September 9, 2010.
The Buckman, Luvara, Smitherman, Quiros, and Trueman actions were
removed by the Defendants to Nevada federal court, and the parties
are contesting whether the cases should be transferred to federal
court in Colorado or remanded back to Nevada state court.
In the Cobb, Veigel, Finkel, and Feinman actions, the parties held
discovery conferences before Magistrate Judge Kathleen Tafoya, who
approved an expedited discovery stipulation. Document and
deposition discovery has begun. On October 5, 2010, the Colorado
federal court consolidated the Cobb, Veigel, Finkel, and Feinman
actions under the caption Finkel v. American Oil & Gas, Inc., No.
10-cv-1808-CMA-MEH -- the "Consolidated Colorado Federal Action"
-- and a consolidated complaint was filed by the plaintiffs on
October 29, 2010. The Cobb Action was dismissed without
prejudice. On October 15, 2010, plaintiffs in the Consolidated
Colorado Federal Action filed a Motion for Preliminary Injunction
seeking to enjoin the proposed merger.
Settlement of Litigation Relating to the Merger
On November 12, 2010, plaintiffs in the Consolidated Colorado
Federal Action, and the Buckman, Luvara, and Kunaman actions
pending in federal and state court in Nevada, on behalf of
themselves and the Settlement Class, entered into the Stipulation
of Settlement with the defendants to fully and finally resolve the
Settlement Class members' claims challenging the proposed merger.
Pursuant to the Stipulation of Settlement:
-- In exchange for the releases by the plaintiffs and the
Settlement Class, Hess and the Company have included the
plaintiffs' counsel in the disclosure process, and Hess and
the Company are to make certain supplemental disclosures in
the forthcoming amendment to Hess's Form S-4 filing with the
SEC and in the forthcoming proxy statement to the Company's
stockholders. The supplemental disclosures address issues
identified by plaintiffs.
-- As part of the negotiated settlement, defendants agreed not
to object to an attorneys' fees application by the
plaintiffs' counsel up to $200,000.
-- The Defendants also agreed to pay plaintiffs' attorneys'
fees and expenses in an amount awarded by the Court not to
exceed $850,000.
-- The Settlement Class will release all the defendants from
any and all claims relating to, among other things, the
merger, the agreement and plan of merger and any disclosures
made in connection therewith.
-- The Consolidated Colorado Federal Action will be also
dismissed with prejudice on the merits by the Court upon
final approval of the settlement.
The Stipulation of Settlement is subject to customary conditions,
including the consummation of the merger, class certification of
the Settlement Class, and final approval by the Court, following
notice to the stockholders of the Company. The settlement will
not affect the form or amount of consideration to be received by
the Company's stockholders in the merger.
The defendants have denied and continue to deny any wrongdoing or
liability with respect to all claims, events and transactions
complained of in the aforementioned litigations or that they have
engaged in any wrongdoing. According to the defendants, they have
entered into the Stipulation of Settlement to (i) eliminate the
burden and expense of further litigation, (ii) put the released
claims to rest, finally and forever, without in any way
acknowledging wrongdoing, fault, liability, or damage to the
Settlement Class, and (iii) permit the proposed merger to close
without risk of injunctive or other relief.
AMERIGAS PARTNERS: Court Approves Settlement of Class Action Suits
------------------------------------------------------------------
A Kansas district court issued final approval of an agreement to
settle consolidated class action lawsuits filed against various
AmeriGas entities, according to Amerigas Partners LP's Nov. 19,
2010, Form 10-K filing with the U.S. Securities and Exchange
Commission for the quarter ended September 30, 2010.
On May 27, 2009, AmeriGas Propane Inc. was named as a defendant in
a purported class action lawsuit in the Superior Court of the
State of California in which plaintiffs are challenging AmeriGas
OLP's weight disclosure with regard to its portable propane grill
cylinders. The complaint purports to be brought on behalf of a
class of all consumers in the state of California during the four
years prior to the date of the California complaint, who exchanged
an empty cylinder and were provided with what is alleged to be
only a partially filled cylinder. The plaintiffs seek
restitution, injunctive relief, interest, costs, attorneys' fees
and other appropriate relief.
Since that initial suit, various AmeriGas entities have been named
in more than a dozen similar suits that have been filed in various
courts throughout the United States. These complaints purport to
be brought on behalf of nationwide classes, which are loosely
defined as including all purchasers of liquefied propane gas
cylinders marketed or sold by AmeriGas OLP and another
unaffiliated entity nationwide. The complaints claim that
defendants' conduct constituted unfair and deceptive practices
that injured consumers and violated the consumer protection
statutes of at least thirty-seven states and the District of
Columbia, thereby entitling the class to damages, restitution,
disgorgement, injunctive relief, costs and attorneys fees. Some
of the complaints also allege violation of state "slack filling"
laws. Additionally, the complaints allege that defendants were
unjustly enriched by their conduct and they seek restitution of
any unjust benefits received, punitive or treble damages, and pre-
judgment and post-judgment interest.
A motion to consolidate the purported class action lawsuits was
heard by the Multidistrict Litigation Panel on September 24, 2009
in the United States District Court for the District of Kansas.
By Order, dated October 6, 2009, the MDL Panel transferred the
pending cases to the United States District Court for the Western
District of Missouri.
The AmeriGas entities named in the consolidated class action
lawsuits have entered into a settlement agreement with the class.
On May 19, 2010, the United States District Court for the District
of Kansas granted the class's motion seeking preliminary approval
of the settlement.
On October 4, 2010, the District Court ruled that the settlement
was fair, reasonable and adequate to the class and granted final
approval of the settlement.
ANTS SOFTWARE: Court Certifies California Suit as Class Action
--------------------------------------------------------------
A lawsuit involving ANTS Software, Inc., and its employees in
California has been certified as a class action, according to the
Company's Nov. 15, 2010 Form 10-Q filed with the Securities and
Exchange Commission for the quarter ended September 30, 2010.
On August 22, 2008, a former ANTs employee filed a putative class
action complaint for all current and former software engineers,
for failure to pay overtime wages, and failure to provide meal
breaks, among other things, in Superior Court of the State of
California, County of San Mateo.
The former employee is seeking an injunction, damages, attorneys'
fees, and penalties. The Company believes that the lawsuit is
without merit and intends to continue vigorously defending itself.
The court has tentatively certified in part the matter as a class
action.
APPLIED MINERALS: Court Approval of Class Suit Settlement Pending
-----------------------------------------------------------------
Applied Minerals, Inc., is still awaiting court approval of its
settlement with the lead plaintiff of a class action, according to
its Nov. 15, 2010 Form 10-Q filed with the Securities and Exchange
Commission for the quarter ended September 30, 2010.
On July 2, 2009, the Company entered into a Settlement Agreement
with the lead plaintiffs in the class action Under the terms of
the Class Action Settlement Agreement the Company will pay
plaintiffs $1,250,000, to be funded by the proceeds of an
insurance policy issued by Navigators Insurance Co., in exchange
for release of all claims against the Company, NanoClay &
Technologies, Inc., and William T. Jacobson, Robert Dumont, Ronald
Price and Barbara Suveg. The Company will also fund up to $75,000
to fund expenses in connection with notification to class members.
The Class Action Settlement Agreement is the settlement agreement
contemplated by the Memorandum of Understanding described in its
prior response and the terms of it are consistent with the terms
of such MOU. The Settlement Agreement is subject to a number of
conditions including successful completion of confirmatory due
diligence by the lead plaintiffs and final court approval. The
plaintiff's counsel is currently evaluating all claims.
AUSBANC: To Face Class Action Over Air-Traffic Strikes
------------------------------------------------------
Julia Thompson, writing for Money Market UK, reports consumer
advocacy group Ausbanc said it will pursue legal action for those
affected by the "brutal" wildcat strikes by Spain's air-traffic
controllers which left tens of thousands of air passengers
grounded.
"Ausbanc's legal team has initiated a series of measures aimed at
fighting for the rights of those passengers affected by the strike
. . . Our lawyers are working on a class action that will shortly
be presented to the courts," said Ausbanc in a statement.
The consumer association, experienced in matters of airline law
after class actions in the cases of Air Madrid and Air Comet, said
it was looking at all legal channels, including opening up legal
proceedings at the National Competition Commission.
Among the passengers in Spain last week were some 20,000 UK
passengers grounded by the unofficial 24-hour strike by air-
traffic controllers. The Spanish government declared a state of
alert following the strike and threatened to sack all those
workers who failed to turn up to work.
Ausbanc said passengers who wanted more information about the
legal proceedings should visit http://www.ausbanc.es/where they
will find information about cancellations, delays, overbookings
and lost luggage -- all suffered during the strike.
Ausbanc said passengers hoping to fly had suffered not only
economic damage, but also moral damages
"At a time of mass unemployment and austerity, high-earning air
traffic controllers have become public enemy number one," says
Sarah Rainsford BBC correspondent in Spain.
Despite the grievances of the controllers, in Spain there is
little sympathy for their plight. When the country is suffering
20% unemployment, government revelations that the average salary
of an air-traffic controller is over EUR300,000 has not helped.
BANKATLANTIC BANCORP: Jury Trial Starts for Securities Lawsuit
--------------------------------------------------------------
The jury trial of a lawsuit against BankAtlantic Bancorp, Inc.,
has commenced, according to the Company's Nov. 15, 2010, Form 10-Q
filing with the Securities and Exchange Commission for the quarter
ended September 30, 2010.
On October 29, 2007, Joseph C. Hubbard filed a purported class
action in the United States District Court for the Southern
District of Florida against the Company and four of its current or
former officers. The Defendants in this action are BankAtlantic
Bancorp, Inc., James A. White, Valerie C. Toalson, Jarett S.
Levan, and Alan B. Levan. The Complaint, which was later amended,
alleges that during the purported class period of November 9, 2005
through October 25, 2007, the Company and the named officers
knowingly and recklessly made misrepresentations of material fact
regarding BankAtlantic and specifically BankAtlantic's loan
portfolio and allowance for loan losses. The Complaint seeks to
assert claims for violations of the Securities Exchange Act of
1934 and Rule 10b-5 promulgated thereunder and seeks unspecified
damages.
On December 12, 2007, the Court consolidated into Hubbard a
separately filed action captioned Alarm Specialties, Inc. v.
BankAtlantic Bancorp, Inc., No. 0:07-cv-61623-WPD.
On February 5, 2008, the Court appointed State-Boston Retirement
System lead plaintiff and Lubaton Sucharow LLP to serve as lead
counsel pursuant to the provisions of the Private Securities
Litigation Reform Act.
The Company believes the claims to be without merit and intends to
vigorously defend the actions.
A jury trial on these claims commenced on October 12, 2010 and the
jury is currently in deliberations. Plaintiffs are seeking damages
with respect to shares that were purchased during and held
throughout the class period of $0.37 per share for a portion of
the class period and $2.93 per share for another portion of the
class period. As the number of shares for which any damage claim
could be asserted is not determinable at this time, the amount of
any loss that might be incurred by the Company if the claims are
decided against the Company cannot be reasonably estimated.
BAYER AG: Law Firm Uses Facebook to Promote Class Action
--------------------------------------------------------
The Canadian Press reports a Canadian law firm is using Facebook
to promote a class action suit against an international
pharmaceutical giant.
Siskinds LLP in London, Ontario, is steering the lawsuit against
the pharma division of Germany's Bayer AG over safety concerns
with their Yasmin and Yaz birth control pills.
Bayer Canada spokeswoman Adrienne Jackson says the firm has
received notice of the suit, but stands by the safety of its birth
control products.
Siskinds lawyer Matt Baer says the lawsuit alleges that pills
contain a chemical not found in other contraceptives that
increases the risk of various health concerns, including blood
clots and strokes.
Mr. Baer says the firm has launched a Facebook page to encourage
women to get informed about the pills and consider signing up for
the lawsuit, which has not yet been certified by the courts.
So far, nearly 1,500 people have become fans of the page, called
Take your Body Back.
The allegations have not been proven in court.
BENTON HARBOR: Emergency Financial Manager to Face Class Action
---------------------------------------------------------------
Brandon Lewis, writing for WNDU.com, reports that Mayor Wilce
Cooke and five commissioners held a news conference Thursday to
discuss a class action lawsuit to be filed in protest to the
emergency financial manager.
EFM Joe Harris was appointed to the city in April to help correct
the city's finances. Since then he's made many controversial cuts
to balance the budget.
"The Emergency Financial Manager after December 30th will assume
these duties: 1) City Manager 2) Fire Chief 3) Supervisor of the
Police Chief 4) Director of Public Safety 5) Personal Director 6)
Director of Planning and Economic Development 7) Tax Assessor 8)
Director of DPW [Department of Public Works] 9) Treasurer," wrote
Mayor Pro Tem Marcus Muhammad in a news release.
The commissioners said Mr. Harris should be focusing on the city's
finances, instead of taking over the city's various departments.
They contend he has not complied with Public Act 72 of 1990, which
gives the state the right to appoint an EFM.
"More progress has transpired in the last four years than has
transpired in the last 20 years in the City of Benton Harbor.
Then they sent an individual into our community to more or less
take over the city and control it. I always say, and I've said
this before, we are a city under siege and under occupation," said
Mr. Cooke.
A lawsuit has not been filed in court and the commissioners were
unable to say who the plaintiff or defendants would be in the
class action suit.
"As soon as this class action lawsuit or injunction is filed you
will surely know who the plaintiff is and you'll know who the
defendant is," said Mr. Muhammad.
Commissioner Duane Seats II confirmed the city does have an
attorney willing to take the case, but Mr. Muhammad said they did
not. It was also unclear whether taxpayers would be responsible
for paying for the lawyer
"I don't understand why that's a highlighted question of who is
going to pay as opposed to us being focused on the laws and the
violations of the constitution of the united states as well as the
state constitution, that's the issue, not who's going to pay for
the lawyer," said Mr. Muhammad in response to a question about
whether citizens would have to pay the bill.
Mr. Muhammad said he is looking for a pro bono attorney.
Two commissioners, James Hightower and Byran Joseph, have come out
against the lawsuit. They were not in attendance at the news
conference.
"We have differences as well as an elected body. Here you see six
commissioners, or five commissioners and the mayor and you don't
see three, I can't speak for them," said Mr. Muhammad.
All commissioners contend the decision to announce the lawsuit was
done in accordance with the Open Meetings Act, although Hightower
expressed doubts when the announcement to hold a news conference
was made on Tuesday.
"Any time you're in violation of Open Meetings Act it's to conduct
business there was no meeting that consisted of more than four
commissioners we never conducted any kind of business it was all
by phone conversation, e-mail or text messages, which will not be
a violation of the Opens Meeting Act, but everyone was informed,"
contended Seats.
So far, there has not been a resolution brought before the
commission to file a lawsuit and no timetable was announced to put
one on the floor.
"With all due respect, the majority is the authority," said
Mr. Seats, in reference that six voting members of the commission
are behind the suit.
The five commissioners and mayor have asked for Mr. Harris'
resignation as EFM. If he refuses, they said they are speaking
with Governor-elect Rick Snyder's administration to remove Harris
as EFM.
Commissioner Seats said he understands why the city needs and EFM
and would welcome a new EFM.
"We'd welcome him with open arms, we'll throw a parade," said
Mr. Seats.
The commissioners also spoke against allegations the pending
lawsuit is in retaliation for Harris taking away their paid cell
phones. Mr. Muhammad said he would do the job of commissioner
without a paid cell phone and without a stipend.
BRE BANK: Wierzbowski Eversheds to File Class Action
----------------------------------------------------
Alice Trudelle, writing for Warsaw Business Journal, reports a
story that began with the zloty's steep depreciation at the
beginning of the economic slowdown and its effect on mortgages
taken in Swiss francs will soon end up in court.
Law firm Wierzbowski Eversheds is expected to file a class action
law suit against BRE Bank next Monday. The exact number of
clients represented will only be known on December 19, but the law
firm's website indicates that 710 people have signed up so far.
This represents a fraction of the estimated 20,000 Poles who took
out mortgages in Swiss francs with BRE retail branches mBank and
MultiBank prior to mid-2006, under what some say were particularly
unfavorable terms.
BRE describes these as "old portfolio" mortgage loans, whose
interest rates depend on the actual cost of funding or access to
capital on the market.
A court will now have to decide whether the bank had the right to
decide not to lower rates on loans taken out in Swiss francs,
despite a drop in market interest rates.
At the end of 2008, the zloty began to weaken drastically and lost
as much as 30 percent against the Swiss franc, hitting borrowers
squarely in the pockets. But when the tide reversed and the zloty
regained value, BRE's management board did not reduce interest
rates by the same proportion.
Another major grievance is that the loan contracts contain
seemingly contradictory clauses. These reportedly specified the
interest rates, but also said that the final interest rate would
depend on the decision of the bank's board.
"Although the institution of collective action is relatively new
in Poland, we are glad that is increasingly being used by
consumers," commented Agnieszka Majchrzak of the Polish Office of
Competition and Consumer Protection.
BRE has offered various resolutions to clients holding "old
portfolio" mortgage loans over the past two years, and the bank
says that around 4,000 have accepted.
CHARLIE CHRIST: Campaign Fund Suit Won't Proceed as Class Action
----------------------------------------------------------------
Aisling Swift, writing for marconews.com, reports a state appeals
court on Friday upheld a Collier Circuit Court judge's ruling
involving a lawsuit filed by two donors who demanded refunds from
Gov. Charlie Crist's former Republican campaign for U.S. Senate
after he switched parties.
The Second District Court of Appeal affirmed two rulings by Senior
Judge Jack Schoonover, who denied an injunction that would have
stopped Mr. Crist from spending the contributions and denied a
motion to certify the lawsuit as a class-action complaint. The
lack of a certification prevented it from moving forward as a
class-action lawsuit, possibly representing about 8,000
contributors to Mr. Crist's campaign.
Mr. Crist, who switched to a no-party affiliation, ended up losing
to Republican candidate, Marco Rubio.
The ruling handed down on Friday was a per curiam affirmance,
meaning the three-judge panel issued no written opinion, just
affirmed Judge Schoonover's rulings.
The lawsuit was filed June 22 by Linda Morton, a Lely mother of
four, and John Rood of Jacksonville, a retired U.S. ambassador and
Republican Party finance chairman.
In denying the certification, Judge Schoonover had to balance the
threat of irreparable harm to the plaintiffs versus Mr. Crist's
campaign if about $7.5 million in funds were frozen or he was
forced to provide a refund. However, he ruled the plaintiffs'
claim was valid and they could proceed, but not as a class action.
"We have said from the outset this is not an appropriate case for
class treatment," said Mr. Crist's lawyer, Scott Weinstein of Fort
Myers, who was assisted by co-counsels J. Andrew Meyer, Rachel
Soffin, and Tamra Givens of Morgan & Morgan. "Judge Schoonover
agreed with us and he has now been vindicated by the appellate
court."
"Our position has always been this case has no merit, but at most
is a pair of small claims court disputes," he added. "It's a
shame plaintiffs, in the name of Republican values, have brought
this frivolous claim and used scarce and valuable court
resources."
The plaintiffs were represented by Rep. Thomas Grady, who quit
Mr. Crist's campaign just weeks before Mr. Crist announced his
switch April 29. Mr. Grady had indicated there were about 8,000
donors, but wanted to take depositions to determine how many
supported Mr. Crist or wanted refunds.
When he filed his appeal, Mr. Grady contended nine out of 10
judges would have granted his motions and he and co-counsel David
Shiner were confident Judge Schoonover's ruling would be reversed.
However, he said Friday that he was hindered because they had to
rush for a ruling before election.
In light of the election results, most issues on appeal were moot,
Grady said, adding, "The money has been spent, so there was little
the court could do."
The plaintiffs are still proceeding in their lawsuit, he said, and
hope to gather more evidence to argue again for certification.
Mr. Grady said the plaintiffs believe their message was heard and
noted that Mr. Crist, who was ahead in polls before they sued,
then dropped behind.
"Any future candidate violating the same promise as Crist violated
will be met swiftly by a lawsuit and will know, based on the
findings in this case, that they will not get a free pass," Grady
said. ". . . My guess is that it will not happen again in
Florida."
CHINA EDUCATION: Ryan & Maniskas Files Securities Class Action
--------------------------------------------------------------
RTTNews reports Ryan & Maniskas, LLP, Friday said that it filed a
class action lawsuit in the US District Court for the Central
District of California on behalf of purchasers the securities of
China Education Alliance Inc.
The complaint alleges that China Education Alliance and certain of
its officers and directors with violations of federal securities
laws. Specifically, it is alleged that defendants knew or
disregarded that they improperly reported $24.9 million in revenue
in its 2008 annual report, contradicting a report that the China
Education Alliance's main operating subsidiary filed with the
Chinese authorities, which revealed less than $1 million in
revenue.
CHINA NATURAL GAS: Faces 2 Class Suits Over Stock Price Decline
---------------------------------------------------------------
China Natural Gas Inc. and certain of its officers and directors
were recently named as defendants in two putative class action
lawsuits alleging violations of the federal securities laws:
1. The first action, captioned Vandevelde v. China Natural Gas,
Inc., et al., C.A. No. 10-728, was filed on August 26, 2010
in the United States District Court for the District of
Delaware.?
2. The second action, captioned Baranowski v. China Natural
Gas, Inc., et al., Case No. 10-6572, was filed on Sept. 3,
2010 in the United States District Court for the Southern
District of New York.?
The Company made the disclosure in its November 15, 2010, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended September 30, 2010.
The plaintiffs in the Actions assert that the Company, Qinan Ji,
Zhiqiang Wang, Donald Yang, David She, Carl Yeung and Lawrence
Leighton violated Section 10(b) of the Securities Exchange Act of
1934, and Rule 10b-5 thereunder, when the Company failed to
disclose and properly account for a certain bank loan in its
Annual Report on Form 10-K for the year ended December 31, 2009
and Quarterly Report on Form 10-Q for the quarter ended March 31,
2010. The complaints allege that the pledge to secure that loan
violated the indenture for the Senior Notes and the warrant
agreement relating to the Abax Warrants, giving the holder of
those notes and warrants the right to declare a default under that
indenture. The complaints further allege that, on August 20,
2010, the Company amended its Annual Report on Form 10-K for the
year ended December 31, 2009 and Quarterly Report on Form 10-Q for
the quarter ended March 31, 2010 to disclose the loan and restate
its financial statements in light of the note and warrant holder's
right to declare a default under the indenture, and that the
announcement of this news caused the price of the Company's stock
to drop by 20%. The plaintiffs seek damages in an unspecified
amount to recover the losses purportedly suffered by the putative
class as a result of that decline. The complaints also assert
claims against the individual defendants as controlling persons of
the Company for violations of Section 20(a) of the Securities
Exchange Act of 1934.
Two putative class members in the Vandevelde action have moved for
appointment as lead plaintiff.
After the Court decides those motions, the putative class member
who is appointed lead plaintiff will have an opportunity to file
an amended complaint. The Defendants will not be required to
answer or otherwise respond to the complaint until after lead
plaintiff either decides to proceed on the basis of the original
complaint or files an amended complaint.
CHINA NORTH: Three Securities Class Action Suits Still Pending
--------------------------------------------------------------
Three securities class actions filed against China North East
Petroleum Holdings Limited in New York are still pending,
according to the company's November 19, 2010, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended September 30, 2010.
The Company was recently involved in six purported legal actions,
three of which are securities class actions and three of which are
shareholder derivative actions, in the U.S. District Court for the
Southern District of New York against the Company and certain
officers and directors. The three class actions assert claims
under the federal securities laws and the three derivative actions
assert common law claims based on breach of duty.
The six actions are: (1) Rosado v. China North East Petroleum
Holdings Limited, et al., 10 CV 4577 (MGC), filed June 11, 2010;
(2) Weissmann v. China North East Petroleum Holdings Limited, et
al., 10 CV 4775 (MGC), filed June 18, 2010; (3) Moore v. China
North East Petroleum Holdings Limited, et al., 10 CV 5263 (MGC),
filed July 9, 2010; (4) Strickland v. Hongjun, et al., 10 CV 5445
(RMB), filed July 19, 2010; (5) Drobner v. Hongjun, et al., 10 CV
6193 (No Judge has been assigned at this time), filed August 23,
2010; and (6) Nicoln v. Hongjun, et al., 10 CV 6344 (No Judge has
been assigned at this time), filed August 24, 2010.
The time for the Company to respond formally to these lawsuits has
not come. In addition, the complaints do not specify an amount of
damages that plaintiffs seek.
CONSECO INC: Fairness Hearing Set for Feb. 17 in Indianapolis
-------------------------------------------------------------
The Honorable Tanya W. Pratt has scheduled a Fairness Hearing at
9:00 a.m. on Feb. 17, 2011, in the U.S. District Court for the
Southern District of Indiana to review a proposed $41,465,000 cash
settlement in Schleicher, et al. v. Wendt, et al., Case No. 02-cv-
01332 (S.D. Ind.), for the benefit of purchasers of Conseco, Inc.,
common stock between Apr. 24, 2001, and Aug. 9, 2002.
The estimated average recovery per share of common stock, based on
the 476,761,149 Conseco common shares which were available to be
traded during the Class Period, will be approximately $0.087 per
share before deduction of Court-approved fees and expenses and
costs of notice and claims administration. The number of shares
claimed in the Settlement is likely to be different than
476,761,149 shares because some Class Members may not file claims
on shares they purchased during the Class Period, and certain
shares may have traded more than once during the Class Period and
more than one Class Member may file claims on those shares.
This action arises from decline in Conseco's stock price during
the Class Period, which eventually led to the company's
bankruptcy. The Plaintiffs allege that, during the Class Period,
Conseco's stock price was artificially inflated as a result of
untrue or materially misleading statements concerning, inter alia,
the affect of Conseco Inc.'s and CFC's improper loss mitigation
techniques on loan delinquency rates and the value of interest
only securities, corporate guarantee exposure on certain B-2
tranche securities, the disclosure of and the accounting for
guarantees made by Conseco Inc. in connection with its Directors
and Officers loan program, and the reporting of CFC's loan
servicing revenues and costs.
The Plaintiffs further contend that the Defendants made these
statements knowing them to be false or misleading, or recklessly
disregarding their false or misleading natures, and that investors
suffered injury as a result of the alleged inflation. The case
has been litigated since August 2002, for over 8 years.
The Class Representatives and Lead Counsel believe that the
Settlement provides the Class with a benefit now instead of years
of further uncertain litigation, including disposition of the
summary judgment motions, a contested trial and likely appeals,
with the possibility of no recovery at all.
The Defendants have denied and continue to deny each and all of
the claims and contentions alleged in the Second Amended
and Consolidated Class Action Complaint and believe that they have
meritorious defenses to those claims and contentions. The
Settlement shall in no event be construed as, or deemed to be
evidence of, an admission or concession by any of Defendants with
respect to any claim of any fault or liability or wrongdoing or
damage to the Class Members in this Action. Nevertheless,
Defendants have concluded that further defense of the Action would
be protracted and expensive, and also have taken into account the
uncertainty, risks and distractions inherent in any litigation.
Lead Counsel will ask the Court for attorneys' fees not to exceed
one-third of the Settlement Fund and expenses not to exceed
$2,300,000 to be paid from the Settlement Fund. The two Class
Representatives will also request reimbursement of their actual
costs and expenses (including lost wages) directly related to
their representation of the Class, not to exceed $50,000 each.
The Claims Administrator in this matter is:
Conseco, Inc. Securities Litigation
c/o The Garden City Group, Inc.
P.O. Box 9670
Dublin, OH 43017-4970
Telephone: 1-888-448-4492
http://www.gcginc.com/
Lead Counsel to the Shareholder Class is:
Peter A. Binkow, Esq.
Glancy Binkow & Goldberg LLP
1801 Avenue of the Stars #311
Los Angeles, CA 90067
Telephone: (310) 201-9150
E-mail: settlements@glancylaw.com
The Defendants are represented by:
Daniel Laytin, Esq.
Kirkland & Ellis LLP
300 North LaSalle
Chicago, IL 60654
Telephone: (312) 862-2000
CRESTWOOD: Settles Class Action for $2.8 Million
------------------------------------------------
Michael Hawthorne, writing for Chicago Tribune, reports Crestwood
will pay residents $500,000 to settle one of the class action
lawsuits filed against the south suburb for secretly pumping
contaminated water to households for more than two decades.
The deal, approved last week by a Cook County judge, also will
provide residents with free garbage pickup for two years, as well
as freezing fees for vehicle stickers and business licenses. And
village officials will hire an independent environmental
consultant to certify that Crestwood's drinking water is safe for
the next three years.
All told, the settlement is estimated to be worth $2.8 million,
including $400,000 in payments for lawyers representing village
residents.
The lawsuit is one of several filed against Crestwood after a 2009
Tribune investigation revealed that village officials had been
drawing water from a contaminated well, apparently to save money.
The village kept piping polluted water to residents even after
state environmental officials told Crestwood in the mid-1980s that
cancer-causing chemicals had oozed into the well.
Several personal injury lawsuits are pending against the village,
Mayor Robert Stranczek, his father and former Mayor Chester
Stranczek, and Crestwood's former top water official. The three
officials also face an ongoing federal criminal investigation.
In the case settled last week, about 1,000 residents filed claims
seeking reimbursement for a portion of the water bills they paid
while contaminated water flowed out of their taps. As part of the
deal, they will receive payments that range from $20,000 for a
condo association to as little as $50 for one homeowner.
"We think the settlement was fair and adequate for the people of
Crestwood," said Larry Drury, the lead attorney behind the
lawsuit.
Village attorneys still deny the case had merit but said they
wanted to limit the amount of money paid out.
"This is a reasonable way for the village to minimize its future
costs and eliminate some of the distractions," said Caesar Tabet,
who represented Crestwood in the case.
Crestwood taxpayers already have paid lawyers specializing in
white-collar civil and criminal defense more than $1 million to
defend the village and the Stranczeks.
With a population of 11,000 and an annual budget of just $14.5
million, the village's escalating legal costs have forced
officials to scrap property tax rebates doled out to residents for
more than a decade.
The most expensive bills to date have been filed by Jenner &
Block, a Chicago law firm hired exclusively to defend Chester
Stranczek, who served as mayor from 1969 to 2007 and often boasted
that he ran the town like a penny-pinching business.
Lawyers also are in court seeking to order Crestwood's insurance
companies to reimburse the village for its legal bills. Those
companies have refused to provide coverage for expenses related to
the water scandal and have filed their own lawsuits in federal
court to ensure the village continues to pay.
Illinois Attorney General Lisa Madigan, who filed one of the civil
lawsuits against Crestwood, accuses the Stranczeks and Frank
Scaccia, the village's former top water official, of lying 120
times about their secret use of the well.
For years Crestwood officials filed official paperwork telling
residents and regulators that all of the village's tap water was
treated Lake Michigan water bought from neighboring Alsip. But
village records obtained by the Tribune show Crestwood officials
kept relying on the polluted well for up to 20 percent of the
water supply.
The well wasn't shut off for good until late 2007, when the
Illinois EPA tested the water for the first time since 1986. S
tate officials found the well was contaminated with two chemicals
related to the dry-cleaning solvent perchloroethylene; one of the
compounds, vinyl chloride, is so toxic the U.S. EPA says there is
no safe level of exposure.
DEAN FOODS: Settles Class Action for $30 Million
------------------------------------------------
The Associated Press reports the attorney for a group of Vermont
dairy farmers says the $30 million a national dairy processor has
agreed to pay to settle a class action lawsuit will help the
state's farmers who have been hurting for so long.
But Burlington Attorney Andrew Manitsky says the details of the
settlement with Dean Foods cannot be released until it has been
approved by a federal court judge, expected this week.
Mr. Manitsky says the settlement involves "thousands" of
northeastern dairy farmers.
The original suit alleged that the Dallas-based Dean Foods and
others were forcing farmers to work with them.
In a legal filing, Dean Foods said without elaborating that it had
agreed to the payment and other terms and conditions.
Dean spokeswoman Liliana Esposito says the company can't comment
either.
FALCONSTOR SOFTWARE: Court Consolidates Two Securities Lawsuits
---------------------------------------------------------------
Two lawsuits with similar allegations against Falconstor Software,
Inc., have been consolidated, according to the Company's Nov. 15,
2010, Form 10-Q filed with the Securities and Exchange Commission
for the quarter ended September 30, 2010.
In October 2010, two purported securities class actions were filed
in the United States District Court for the Eastern District of
New York on behalf of purchasers of the common stock of the
Company between February 5, 2009 and September 29, 2010. The two
Actions contain substantially similar allegations and causes of
actions. The complaint in each of the Actions name as defendants
the Company and certain of its officers. The complaints in each
of the actions allege that the defendants made a series of
materially false and misleading statements related to the
Company's business and operations in violation of the Securities
Exchange Act of 1934.
The following adverse facts are alleged: (i) that FalconStor was
experiencing weak demand for its products and services; (ii) that
FalconStor was making improper payments to secure a contract with
at least one of its customers; and (iii) as a result of the
foregoing, the defendants lacked a reasonable basis for their
positive statements about FalconStor and its prospects.
The plaintiffs in each Action seek damages from the defendants.
On November 1, 2010, the parties to one of the two Actions entered
into a stipulation setting forth a schedule for an amended
complaint and an answer or other response thereto.
On November 3, 2010, the Actions were consolidated before Judge
Edward R. Korman.
The Company believes it has meritorious defenses to some or all of
the claims of the Actions as filed and intends to file a motion to
dismiss. The Actions have now been consolidated and the Company
anticipates that it will be receiving an amended complaint. The
Company is thus unable to determine what claims will ultimately be
asserted. In addition key issues such as whether a class will be
certified and, if so, who the members of the class will be and
what time period the class will cover, have not yet been
determined.
FIRST HEALTH: Class Action Settlement Awaits Court Approval
-----------------------------------------------------------
On December 6, 2010, First Health Group Corp., a subsidiary of
Coventry Health Care, Inc., entered into a Memorandum of
Understanding with attorneys representing the plaintiffs and the
class setting forth the settlement terms of the class action
lawsuit filed in Louisiana state court against FHGC and certain
payors and described in detail in Coventry's Form 10-Q for the
quarterly period ended September 30, 2010. The Memorandum of
Understanding provides that subject to the execution of a
settlement agreement acceptable to FHGC and final non-appealable
approval of such settlement by the Louisiana state court, FHGC
will pay $150.5 million to resolve claims for which Coventry in
July 2010 announced a pre-tax charge of $278 million. In
addition, Coventry will assign to the class certain rights it has
to the proceeds of FHGC's insurance policies relating to the
claims asserted by the class. Pursuant to the Memorandum of
Understanding, the parties have also agreed to request that the
appropriate courts stay all related proceedings and consideration
of any pending appellate writ applications and to stay the effect
of any outstanding judgments until the settlement agreement is
prepared, executed and receives final court approval.
As described in the Form 10-Q, the lawsuit alleged that FHGC
violated Louisiana's Any Willing Provider Act (the "Act"), which
requires a payor accessing a preferred provider network contract
to give a one-time notice 30 days before that payor uses the
discount rate in the preferred provider network contract to pay
the provider for services rendered to a member insured under that
payor's health benefit plan. After the Louisiana state court
class action had been filed, FHGC and certain payors who access
FHGC's provider contracts, filed suit in federal district court
against the same four provider plaintiffs who filed the state
court class action, seeking a declaratory judgment that FHGC's
contracts are valid and enforceable; that its contracts are not
subject to the Act because the Act does not apply to medical
services rendered to injured workers; and that FHGC is exempt from
the notice requirements of the Act. The federal district court
granted judgment in favor of FHGC.
Despite the federal court's judgment and subsequent order
enjoining them from pursuing any claim under the Act against FHGC,
the plaintiffs continued to pursue their state court class action
against FHGC and filed a motion for partial summary judgment
seeking damages of $2,000 for each provider visit where the
provider was not given a benefit identification card at the time
the service was performed. The state trial court granted the
plaintiffs' motion and entered judgment against FHGC for $262
million.
FHGC's appeal of the partial summary judgment order to the state's
intermediate appellate court was denied. FHGC has filed an
application for a writ of appeal with the Louisiana Supreme Court
with respect to the partial summary judgment order. The decision
to grant or deny the application for a writ of appeal is at the
discretion of the Louisiana Supreme Court. The application is
still pending before the Louisiana Supreme Court.
As a result of the Louisiana appellate court's decision on July 1,
2010 to affirm the state trial court's summary judgment order,
Coventry recorded a $278 million pre-tax charge to earnings during
the second quarter of 2010. This amount represents the $262
million judgment amount plus post judgment interest. Coventry has
accrued for legal fees expected to be incurred related to this
case as well as post judgment interest subsequent to the second
quarter charge and will continue to accrue post judgment interest
until a final non-appealable court approval of the settlement has
been obtained.
In exchange for the settlement payment by FHGC, class members will
release FHGC and all of its affiliates and clients for any claims
relating in any way to re-pricing, payment for, or reimbursement
of a workers' compensation bill, including but not limited to
claims under the Act. Plaintiffs have also agreed to a notice
procedure that FHGC may follow in the future to comply with the
Act. As noted, the Memorandum of Understanding is contingent upon
the execution of a definitive settlement agreement acceptable to
FHGC. Under Louisiana law, once the parties have executed such a
settlement agreement, they must apply to the court for approval of
the settlement following a court-supervised process of notice to
the class and an opportunity for the class to be heard about the
fairness of the settlement or exclude themselves from the
settlement. FHGC expects to be able to arrive at such a
definitive settlement agreement in the next 30 days.
FIRSTMERIT BANK: Faces Class Action Over Overdraft Fees
-------------------------------------------------------
A class-action lawsuit filed Friday against FirstMerit accuses the
Akron bank of "unfairly manipulating" the order of transactions in
customers' checking accounts to yield as many overdraft fees as
possible.
A class-action lawsuit filed Friday against FirstMerit accuses the
Akron bank of "unfairly manipulating" the order of transactions in
customers' checking accounts to yield as many overdraft fees as
possible.
The bank is the latest to face legal issues stemming from
overdraft fees and the sequence of debit card transactions. Fifth
Third and Wells Fargo banks were accused of similar practices.
The FirstMerit suit was filed in Summit County Common Pleas Court
on behalf of Donald and Vickie Stevens of Crestline near
Mansfield. The document said the Stevens have been hit with
nearly $1,000 worth of overdraft fees in recent years over debit
and electronic transactions.
"FirstMerit's overdraft fees often cost a customer hundreds of
dollars in a matter of days or hours, even when the customer
actually is overdrawn by only a few dollars or not at all," said
the suit, filed by attorney Stuart Scott of Spangenberg Shibley &
Liber in Cleveland.
Mr. Scott said the class action is limited only to Ohio customers
and could involve several thousand people.
FirstMerit spokesman Rob Townsend said the bank's policy is not to
comment on pending litigation.
Fifth Third Bank earlier agreed to pay customers nearly $10
million to settle a class-action suit that claimed customers were
improperly charged overdraft fees on debit cards and ATM
withdrawals.
Three months ago, Wells Fargo was ordered by a federal judge to
stop a similar overdraft policy and pay $203 million to customers.
Both Fifth Third and FirstMerit suits maintain that a bank should
post debit and electronic transactions as they occur during the
day, and should not wait until the end of the day to reshuffle
them so that the maximum number of overdraft fees can be charged.
The accusations against FirstMerit go deeper than just shuffling
transactions on the same day. The suit said the bank clusters
transactions that occurred over several days all on the same day.
For example, a customer had $100 in her account. Two transactions
for $25 might occur on Tuesday and two transactions for $100 might
occur on Thursday. All could be posted on Thursday, forcing four
overdraft fees, instead of two.
Mr. Scott said the Stevens don't deny that some of the overdraft
fees were justified, and said the suit doesn't cover any fees
prompted from bounced checks -- just debit and electronic
transactions.
FirstMerit could have declined transactions when there wasn't
enough money in the accounts, the lawsuit said. Most banks
nationwide didn't do that until they were required by law starting
in August.
The change mandated that banks couldn't charge overdraft fees on
ATM withdrawals or one-time debit card transactions unless the
customer specified that he wanted all transactions to go through,
regardless of fees.
The Federal Deposit Insurance Corp., a major regulator and insurer
of all banks, last month issued an order about overdraft programs,
saying banks need to make sure they're acting responsibly. One of
the directives said banks should "not process transactions in a
manner designed to maximize the cost to consumers."
Banks nationwide last year collected $18 billion when customers
overdrew their accounts with debit cards or ATMs. That doesn't
count fees from bounced checks.
The outrage over overdraft fees has been percolating in recent
years, as revenue from fees on checking and savings accounts
soared 48 percent from 2000 to 2007, the U.S. Government
Accountability Office says. That combined with contempt aimed at
the banking industry the last couple of years has caused a public
backlash.
FirstMerit customers who believe they should be included in the
class action lawsuit should contact Spangenberg Shibley & Liber at
ses@spanglaw.com or 216-696-3232.
GAMING PARTNERS: Awaits Ruling on Appeal From Class Suit Dismissal
------------------------------------------------------------------
Gaming Partners International Corporation is awaiting a ruling on
an appeal made by a plaintiff regarding the dismissal of a class
action lawsuit, according to the Company's Nov. 15, 2010, Form
10-Q filed with the Securities and Exchange Commission for the
quarter ended September 30, 2010.
On June 27, 2007, a putative class action complaint alleging
violations of federal securities laws based on alleged
misstatements and omissions by the Company, entitled Robert J.
Kaplan v. Gerard P. Charlier, Paul S. Dennis, Eric P. Endy, Alain
Thieffry, Elisabeth Carrette, Robert J. Kelly, Charles R. Henry,
Laura McAllister Cox and Gaming Partners International Corporation
was filed in the United States District Court for the District of
Nevada, under Case No. 2:07-cv-00849-LDG-GWF.
Plaintiff Kaplan has been designated by the court as "Lead
Plaintiff."
On February 12, 2008, Plaintiff filed an amended complaint,
deleting several of the above named defendants, and adding three
others. The action is now captioned Robert J. Kaplan v. Gerard P.
Charlier, Melody J. Sullivan a/k/a Melody Sullivan Yowell, David
Grimes, Charles T. McCullough, Eric P. Endy, Elisabeth Carrette
and Gaming Partners International Corporation.
The Company engaged counsel and intends to vigorously defend
against the claims presented.
Defendants filed a Motion to Dismiss the Complaint on April 16,
2008. Defendants' Motion to Dismiss was thereafter granted and an
Order was entered dismissing the Amended Complaint without
prejudice on November 18, 2008.
Plaintiff filed a Second Amended Complaint on January 9, 2009.
Defendants' Motion to Dismiss the Second Amended Complaint was
filed on February 27, 2009. On September 28, 2009, Defendants'
motion was granted and judgment dismissing the Second Amended
Complaint with prejudice was entered on September 29, 2009.
On October 29, 2009, Plaintiff filed his Notice of Appeal of the
Court's judgment to the 9th Circuit Court of Appeals. All
briefings have been concluded and the matter awaits further action
by the Court.
GENTIVA HEALTH: Kaplan Fox & Kilsheimer Files Class Action
----------------------------------------------------------
RTTNews reports Kaplan Fox & Kilsheimer LLP Friday said that it
filed a class action suit against Gentiva Health Services Inc.
that alleges violations of the Securities Exchange Act of 1934 on
behalf of purchasers of Gentiva common stock during the period
July 31, 2008 through July 20, 2010, inclusive.
The case is pending in the U.S. District Court for the Eastern
District of New York.
The complaint further alleged that during the Class Period, the
Individual Defendants collectively sold around 261,828 Gentiva
shares at artificially inflated prices for proceeds of about
$6.3 million.
GMAC MORTGAGE: Can Resume Foreclosure Sales, Judge Rules
--------------------------------------------------------
Josie Huang, writing for MPBN, reports in November, GMAC Mortgage
agreed to suspend sales of foreclosed homes in Maine after news
surfaced of questionable foreclosure practices. An employee,
Jeffrey Stephan, had acknowledged signing off on thousands of
foreclosure without full knowledge of the cases. A class action
suit brought by Maine homeowners sought a federal court order to
keep GMAC from resuming sales. But they were disappointed on
Friday. In a ruling, U.S. District Judge Bruce Hornby decided
against issuing a temporary restraining order against GMAC, citing
the federal courts' limited authority to do so.
"It really doesn't have anything to do with whether or not GMAC
has violated Maine law or violated these plaintiffs rights," says
Maine Assistant Attorney General Linda Conti.
Ms. Conti sat in on the hearing in U.S. District Court on Friday
so she could report back to Attorney General Janet Mills, who is
debating whether to join a court action against GMAC.
"It has more to do with what the powers of the federal court are
to order the kind of relief that the plaintiffs asked for,"
Ms. Conti says.
"It's of serious concern to us," says Tom Cox, part of a team of
lawyers representing the homeowners in their class action suit.
He's also the lawyer whose deposition of Stephan this summer was
circulated on the Web and opened up criticism of the mortgage
service's practices.
"GMAC now has open running room to go ahead and run these
foreclosure sales, even though Mr. Stephan's affidavits were the
source of the judgment," he says.
GMAC, which was represented in court by Pierce Atwood, did not
want to comment on tape. But in a statement, it says it "remains
confident about its ability to proceed with foreclosure sales and
evictions in cases where all of the relevant factual information
supporting foreclosure has been confirmed. [Fri]day's court
decision is consistent with that approach."
Five homeowners whose documents were endorsed by Jeffrey Stephan
were named in the suit, but Assistant AG Conti says there could be
dozens more who were serviced by GMAC who have been foreclosed on,
and are facing the scheduling of a sale of their home.
Mr. Cox said Judge Hornby had also denied the homeowners' request
for damages. He and the other lawyers, which include attorneys
from the National Consumer Law Center in Boston and the Center for
Responsible Lending, are mulling their next move.
Mr. Cox said they would welcome the help of the state Attorney
General's office, which has certain legal powers under the state's
Unfair Trade Practices statute that they do not.
Assistant AG Conti noted that the case had originally been brought
to state court under the Unfair Trade Practices act and had been
moved to federal court by GMAC. "The state's considering get
involved. The state could join this action or join any other
action filed by these same plaintiffs, or the state could bring
its own action," she says.
Ms. Conti says she will discuss the case with Attorney General
Janet Mills. But Ms. Mills would have to make her decision soon,
with only a few weeks left before the new Attorney General with
the incoming LePage administration, Bill Schneider, takes office.
GOOGLE INC: Faces Class Action in Calif. Over Toolbar Software
--------------------------------------------------------------
Westlaw Journals reports Google's Toolbar software, a browser add-
on that helps people use the popular search engine, tells the
company every Web page a user visits, according to a putative
class-action lawsuit filed in a California federal court.
The complaint, filed in the U.S. District Court for the Northern
District of California, alleges violation of federal anti-hacking
and wiretapping laws and California consumer protection laws, as
well as unjust enrichment.
Lead plaintiff Jason Weber proposes to lead a nationwide class of
all people who have downloaded, installed and used Google Toolbar
since June 30, 2009. He estimates there are millions of potential
class members.
According to the complaint, Google failed to fully disclose how
much personal information Toolbar collected. Additionally, the
company failed to provide a meaningful way for users to opt out of
having their information shared with the company, the suit says.
When installed, Toolbar appears at the top of a user's Web
browser. Besides a Google search box, it also includes options
for spell checking, Web page translation and other Google
features.
The complaint says Google's Toolbar begins logging and
transmitting pages visited when users enable "Advanced Features."
Toolbar does not disclose that Advanced Features transmits the
information to Google and that users cannot opt out of the
transmission, the plaintiff claims.
"Google does not adequately or accurately disclose the extent of
its collection of Toolbar users' data," the complaint says.
"[T]he net effect is that many users transmit information about
themselves and their online activities to Google that they
intended to keep private."
In addition to class certification, Mr. Weber is seeking damages,
costs, injunctive relief and attorney fees.
Plaintiff attorneys are Scott A. Kamber and David A. Stampley of
Kamber Law LLC in New York.
Weber et al. v. Google Inc., No. 10-CV-05035, complaint filed
(N.D. Cal., San Jose Div. Nov. 5, 2010).
HARBOR 400: Sued for Refusing to Pay Interest on Security Deposit
-----------------------------------------------------------------
William Figueroa, Sr., on behalf of himself and others similarly
situated v. Harbor 400 East, LLC, d/b/a Harbour Point Estates,
Case No. 2010-CH-51578 (Ill. Cir. Ct., Cook Cty. December 6,
2010), accuses the owner of the Harbour Point Estates mobile home
community located at 4000 through 4004 East 134th Street, in
Chicago, of (i) refusing to pay interest on his and other tenants'
security deposits as required under 765 ILCS 745/18 of the
Illinois Mobile Home Landlord and Tenant Rights Act; and (ii)
requesting more than one month of rent as security deposit which
is prohibited under Section 12 of the Act.
Mr. Figueroa, Sr., is a tenant at Harbour Point Estates mobile
home community. He alleges that he paid a security deposit of
$1,390 to the defendant representing two months of rent for the
rental of the mobile home and the lot lease for the first year of
the tenancy. He says that defendant has never paid any interest
to him or the other tenants on their security deposits and that he
has not received a written lease from the defendant after the
first year of his tenancy.
The Plaintiff is represented by:
Berton N. Ring, Esq.
BERTON N. RING, P.C.
123 W. Madison, Suite 1500
Chicago, IL 60602
Telephone: (312) 781-0290
HILL-ROM HOLDINGS: Appeal of Batesville Suit Dismissal Pending
--------------------------------------------------------------
An appeal of a court ruling dismissing claims filed against Hill-
Rom Holdings, Inc., in a lawsuit over casket purchases remains
pending, according to the Company's November 17, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Sept. 30, 2010.
Hill-Rom Holdings, a leading worldwide manufacturer and provider
of medical technologies and related services for the health care
industry, completed in March 2008, the spin-off to its
shareholders of its funeral services business operating under the
Batesville Casket name, through a tax-free stock dividend.
In 2005, the Funeral Consumers Alliance, Inc., and a number of
individual consumer casket purchasers filed a purported class
action antitrust lawsuit on behalf of certain consumer purchasers
of Batesville(R) caskets against the Company, and its former
Batesville Casket Company, Inc. subsidiary (now wholly owned by
Hillenbrand, Inc.), and three national funeral home businesses.
The district court has dismissed the claims and denied class
certification, but in October 2010, these decisions were appealed
to the United States Court of Appeals for the Fifth Circuit.
If the plaintiffs were to succeed in reversing the district
court's dismissal of the claims, but not the denial of class
certification, then the plaintiffs would be able to pursue
individual damages claims: the alleged overcharges on the
plaintiffs' individual casket purchases, which would be trebled as
a matter of law, plus reasonable attorneys' fees and costs.
The plaintiffs in the FCA Action filed a report indicating that
they are seeking damages ranging from approximately $947.0 million
to approximately $1.46 billion before trebling on behalf of the
purported class of consumers they seek to represent, based on
claims of approximately one million casket purchases by the
purported class members.
The Company and Hillenbrand, Inc., have entered into a Judgment
Sharing Agreement that apportions the costs and any potential
liabilities associated with this litigation between them.
The Company believes that it has committed no wrongdoing as
alleged by the plaintiffs and that it has meritorious defenses to
class certification and to plaintiffs' underlying allegations and
damage theories.
HILL-ROM HOLDINGS: No Claim Filed Against Antitrust Settlement
--------------------------------------------------------------
In fiscal 2005, Hill-Rom Holdings, Inc., entered into a
definitive, court approved agreement with Spartanburg Regional
Healthcare Systems and its attorneys to settle a purported
antitrust class action lawsuit.
A number of potential plaintiffs, including the United States
government, opted out of the settlement, and the Company retained
a reserve of $21.2 million against these potential claims.
However, the Company says, no individual claims were filed prior
to the August 2010 statute of limitations deadline, and it,
therefore, reversed this reserve into income as of September 30,
2010, according to the Company's November 17, 2010, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended Sept. 30, 2010.
IMICO WEST END: Sued for Diverting Trust Funds Under NY Lien Law
----------------------------------------------------------------
Nets That Work Co., individually and as a representative of others
similary situated under Article 3A of the New York Lien Law v.
Imico West End LLC, et al., Case No. 652219/2010 (N.Y. Sup. Ct.,
New York Cty. December 9, 2010), brings claims against Century-
Maxim Corp. for non-payment of the balance of $234,750 owed to it
under its "Base Contract" with the general contractor, in
connection with a Project known and located at 535 West End
Avenue, in New York City, which the general contractor contracted
with defendant Imico West End. Nets says it performed all the
labor it was required to perform and furnished all of the
protective netting materials it was required to furnish pursuant
to the Base Contract and requested additional work during the
period from November 4, 2008, to September 28, 2009, but has not
been paid any part the sum of $234,750 that was owed to it.
Nets states that under Article 3-A of the New York State Lien Law
subcontractors and material suppliers constitute beneficiaries of
the trust funds created with respect to the Project, and
therefore, Century-Maxim, individual defendants Charles Alvarez
and Brian Alvarez, as corporate officers of Century-Maxim, by
diverting the monies received from defendant Imico, are
guilty of larceny and punishable as provided under Lien Law
Section 79-a.
Nets relates that on May 20, 2010, it filed in the office of the
New York County Clerk a Notice of Private Improvement Mechanic's
Lien which was duly served upon Century-Maxim as general
contractor and construction manager and upon Imico as owner of the
fee simple. Nets says that its Notice of Private Improvement
Mechanic's Lien and the claim upon which it is based have not been
paid, waived, or canceled.
Nets asks the Court to adjudge that it, by virtue of filing and
docketing its mechanic's lien, acquired a good, valid and
subsisting lien upon the property in the sum of $234,750, with
interest from September 28, 2009, and to order that the premises
be sold and that from the proceeds of said sale, it be paid the
amount of its lien plus interest, together with the expenses of
the sale, attorney's fees, and granting it judgment against
Century-Maxim for any deficiency that may remain after said
payment. Nets further asks the Court that in the event that it be
determined that it does not have a valid and existing lien on the
Property, that it will have personal judgment against Century-
Maxim in the amount of $234,750, with interest.
Plaintiff Nets That Work is a partnership doing business in the
City and State of New York, with offices located at 322 Eighth
Avenue, in New York City. Defendant Imico West End is a foreign
or domestic limited partnership doing business in the City and
State of New York, with offices located at c/o Extell Development
Company, 805 Third Avenue, in New York City. Defendant Century-
Maxim Construction Corp. is a domestic or foreign corporation
doing business in the City and State of New York, with offices at
located at 76 Inwood Avenue, Port Chester, New York.
The Plaintiff is represented by:
Gary Wirth, Esq.
KAUFMAN DOLOWICH VOLUCK & GONZO LLP
135 Crossways Park Drive, Suite 201
Woodbury, NY 11797
Telephone: (516) 681-1100
E-mail: gwirth@kdvglaw.com
INTERACTIVE DATA: Court Okays Delaware Class Action Settlement
--------------------------------------------------------------
Interactive Data Corporation obtained court approval of a
settlement with plaintiffs in a class action lawsuit, according to
the Company's Nov. 15, 2010 Form 8-K filed with the Securities and
Exchange Commission.
On November 5, 2010, the Court of Chancery of the State of
Delaware, entered an order approving the settlement and dismissal
with prejudice of the stockholder class action litigation
described in the Company's current reports on Form 8-K filed on
May 7, May 19, June 17 and July 6, 2010, respectively.
The settlement and dismissal was in accordance with the terms as
set forth in the June 29, 2010 memorandum of understanding. The
settlement and dismissal with prejudice resolves all of the class
claims that were or could have been brought in the litigation,
including all class claims relating to the July 29, 2010 merger
transaction. As part of the settlement and dismissal with
prejudice, the Company will pay plaintiffs' counsel the amount of
$612,500 for its fees and expenses in the action. This payment is
due on or before November 19. The settlement does not affect the
merger consideration paid to the Company's stockholders.
INTERSECTIONS INC: Continues to Defend Telemarketing Suit in Texas
------------------------------------------------------------------
Intersections Inc. awaits rulings on its requests for dismissal of
a class action lawsuit in Texas related to the telemarketing of
certain programs, the Company related in its November 15, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2010.
On September 11, 2009, a putative class action complaint was filed
against Intersections, Inc., Intersections Insurance Services
Inc., Loeb Holding Corp., Bank of America of America, NA, Banc of
America Insurance Services, Inc., American International Group,
Inc., National Union Fire Insurance Company of Pittsburgh, PA, and
Global Contact Services, LLC, in the U.S. District Court for the
Southern District of Texas.
The complaint alleges various claims based on telemarketing of an
accidental death and disability program.
The defendants each have filed a motion to dismiss the plaintiff's
claims, and the motions are pending.
The Company believes it has meritorious and complete defenses to
the plaintiff's claims. It believes, however, that it is too
early in the litigation to form an opinion as to the likelihood of
success in defeating the claims.
INTERSECTIONS INC: Continues to Defend Class Action Suit in Calif.
------------------------------------------------------------------
Intersections Inc. continues to face a class litigation in
California over identity protection services, the Company noted in
its November 15, 2010, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended September 20, 2010.
On February 16, 2010, a putative class action complaint was filed
against Intersections, Inc., Bank of America Corporation, and FIA
Card Services, N.A., in the U.S. District Court for the Northern
District of California.
The complaint alleges various claims based on the provision of
identity protection services to the named plaintiff.
The Company believes it has meritorious and complete defenses to
the plaintiff's claims but believe that it is too early in the
litigation to form an opinion as to the likelihood of success in
defeating the claims.
The Defendants filed answers to the complaint on May 24, 2010.
Discovery is ongoing.
JONES SODA CO: Plaintiffs Have Until January to File Petition
-------------------------------------------------------------
Jones Soda Co. continues to defend itself against a consolidated
securities lawsuit as the case is unto the appeal process,
according to the Company's November 15, 2010, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended September 30, 2010.
On September 4, 2007, a putative class action complaint was filed
against the Company, the Company's then serving chief executive
officer, and the Company's then serving chief financial officer in
the U.S. District Court for the Western District of Washington,
alleging claims under Section 10(b) and 20(a) of the Securities
Exchange Act of 1934, as amended, and Rule 10b-5 promulgated
thereunder. The case was entitled Saltzman v. Jones Soda Company,
et al., Case No. 07-cv-1366-RSL, and purported to be brought on
behalf of a class of purchasers of the company's common stock
during the period March 9, 2007 to August 2, 2007.
Six substantially similar complaints subsequently were filed in
the same court, some of which alleged claims on behalf of a class
of purchasers of the Company's common stock during the period
November 1, 2006 to August 2, 2007. Some of the subsequently
filed complaints added as defendants certain current and former
directors and another former officer of the Company.
The complaints generally alleged violations of federal securities
laws based on, among other things, false and misleading statements
and omissions about the Company's financial results and business
prospects. The complaints sought unspecified damages, interest,
attorneys' fees, costs, and expenses.
On October 26, 2007, these seven lawsuits were consolidated as a
single action entitled In re Jones Soda Company Securities
Litigation, Case No. 07-cv-1366-RSL.
On March 5, 2008, the Court appointed Robert Burrell lead
plaintiff in the consolidated securities case.
On May 5, 2008, the lead plaintiff filed a First Amended
Consolidated Complaint, which purports to allege claims on behalf
of a class of purchasers of the Company's common stock during the
period of January 10, 2007, to May 1, 2008, against the Company
and Peter van Stolk, the Company's former Chief Executive Officer,
former Chairman of the Board, and former director. The First
Amended Consolidated Complaint generally alleges violations of
federal securities laws based on, among other things, false and
misleading statements and omissions about the Company's agreements
with retailers, allocation of resources, and business prospects.
On July 7, 2008, the Defendants filed a motion to dismiss the
amended complaint. After hearing oral argument on February 3,
2009, the Court granted the motion to dismiss in its entirety on
February 9, 2009.
On March 25, 2009, the Plaintiffs filed their motion for leave to
amend their complaint. On June 22, 2009, the Court issued an
order denying the plaintiffs' motion for leave to amend and
dismissed the case with prejudice. On July 7, 2009, the Court
entered judgment in favor of the Company and Mr. van Stolk.
On August 5, 2009, the plaintiffs filed a notice of appeal of the
Court's order denying the plaintiffs' motion for leave to amend,
and the resulting July 7, 2009 judgment. The parties' briefing on
the appeal was completed on March 4, 2010, and the Ninth Circuit
Court of Appeals heard oral argument on July 15, 2010. On August
30, 2010, the Ninth Circuit panel affirmed the denial of the
plaintiffs' motion for leave to amend.
On September 20, 2010, plaintiffs filed a petition for rehearing
of their appeal by the full Ninth Circuit.
On October 20, 2010, the Ninth Circuit denied the plaintiffs'
petition for rehearing.
The Plaintiffs have 90 days from the date of the denial of their
petition for rehearing to file a petition for review by the U.S.
Supreme Court.
KEYBASE FINANCIAL: Faces Class Action Over Investment Losses
------------------------------------------------------------
Harry Sullivan, writing for Truro Daily News, reports a class-
action lawsuit led by two Stewiacke women and potentially
involving millions of dollars in investment losses has been filed
against a financial advisor who once worked in Truro.
The suit was filed last week in Nova Scotia Supreme Court by
solicitor Robert Pineo on behalf of Ruth Eileen Osborne, 70, and
Dawn Colleen Osborne, 47, and 17 other unnamed individuals. It is
to be heard Jan. 18 in Supreme Court in Truro.
"On a conservative estimate we think it could be between three and
five million (dollars) but it could be more," Mr. Pineo said.
"And it could be less too if people opt not to join in on the
lawsuit."
The suit is against John Alexander Allen, Keybase Financial Group
Inc., Global Maxfin Investments Inc., B2B Trust and AGF Trust.
It describes Allen as a Nova Scotia investment advisor who
formerly practiced in Truro and alleges he engaged in a
professional relationship with the Osbornes while employed with
Keybase and Global.
None of the charges have been proven in court and Mr. Pineo said
efforts to even locate Mr. Allen have so far been in vain.
Mr. Pineo believes that Mr. Allen originates from P.E.I.
"We have a private eye right now attempting to track him down so
that we can serve him, but so far that's been a difficult task,"
he said.
"I don't know where he is from originally. I do know he practiced
as a financial advisor in Halifax and in Truro from at least 1997
forward. I have a suspicion and it is only a suspicion that he is
originally from P.E.I. because that is where he seems to retreat
to whenever (attempts are made for him) to be served . . . ."
Mr. Pineo said Mr. Allen is not accused of actually stealing money
but of forging documents and other fraudulent acts.
"Nothing's been technically stolen, in the traditional way, it's
more bad advice and mismanagement. He forged loan documents and
then invested that money on their behalf," he said.
"I haven't seen any evidence or any allegation from anybody that
he actually took money. It's more he fraudulently obtained loans
and placed them in high-risk investments that lost money without
the investor's knowledge or consent."
In other cases, Mr. Allen actually forged loan applications
without the client's consent, Mr. Pineo said, ". . . and the
client didn't even realize that they had a loan out there. They
didn't realize they had made the investment, it was done in their
names completely unknown to them.
"In the case of the two named plaintiffs, it's around $200,000 but
for the class (suit), I understand from some sources that there
could be as many as 45 or 50 more people out there and they have
all different ranges of amounts that they've lost."
For one investor, the amount is about $50,000 while other
individuals have lost up to a half million dollars, he said.
"We don't have any idea at this point in time what the total claim
will be worth."
LA FEDERATION DES MEDECINS: Ordered to Pay $7MM in Class Suit
-------------------------------------------------------------
Postmedia News reports Quebec doctors must pay $7 million after
depriving up to 10,000 patients of proper treatment, a court has
ruled.
In a historic judgment, a Quebec Superior Court ruled in favor of
the patients in a class-action suit against medical specialists
over a three-day strike held in 2002 and 2003.
The judgment orders La Federation des Medecins Specialistes du
Quebec to pay more than $7 million in damages and interest to
between 3,000 and 10,000 patients whose care was suspended for
those three days.
The judgment filed on behalf of the Council for the Protection of
Patients said doctors have an obligation to treat patients and
cannot decide to cancel or postpone planned appointments and
surgeries.
Three study days were held in 2002 and 2003 and some doctors
suspended service on Nov. 13, Dec. 2 and Jan. 18 to attend
conferences at the Olympic Stadium.
At the first study day, 3,000 of 7,500 specialists province-wide
booked off.
The work action did not affect urgent appointments including
chemotherapy.
The doctors were looking for wage parity with other provinces.
Paul Brunet, general manager of the council, said the next step
will be to see if the FMSQ accepts the judgment or appeals.
"We estimate that if this judgment becomes final there will be a
minimum of 3,000 people and a maximum of 10,000 people who could
be eligible to file claims," Mr. Brunet said.
"We are inviting the FMSQ to submit to the judgment and to be
humbled by it.
"This is a reminder that patients are the raison d'etre for
doctors and health professionals cannot just decide not to treat
patients," Brunet said.
The FMSQ issued a statement Friday saying it would not comment on
the matter.
LANCE INC: Settles Lawsuits Over Proposed Merger With Snyder's
--------------------------------------------------------------
Lance, Inc., entered into settlements resolving two class action
lawsuits filed against the Company over its proposed merger with
Snyder's of Hanover, Inc., according to the Company's November 17,
2010 , Form 8-K filing with the U.S. Securities and Exchange
Commission.
Lance, Lima Merger Corp., a wholly owned subsidiary of Lance
(Merger Sub), and Snyder's of Hanover, Inc., entered into an
Agreement and Plan of Merger on July 21, 2010, which was amended
by Amendment No. 1 to Agreement and Plan of Merger, dated as of
September 30, 2010. Pursuant to the terms of the Merger
Agreement, Merger Sub will be merged with and into Snyder's, with
Snyder's becoming a wholly owned subsidiary of Lance.
Two lawsuits have been filed by Lance stockholders challenging the
Proposed Merger.
On August 5, 2010, Albert A. Ward filed a purported putative class
action complaint allegedly on behalf of Lance's stockholders in
the Mecklenburg County, North Carolina Superior Court against
Lance, the members of Lance's board of directors and Snyder's.
The Ward matter was transferred to the North Carolina Business
Court on September 1, 2010.
On September 3, 2010, David Shaev filed a purported putative class
action complaint allegedly on behalf of Lance's stockholders in
the United States District Court for the Western District of North
Carolina, Charlotte Division against Lance, the members of Lance's
board of directors and Snyder's.
On November 8, 2010, Mr. Ward filed an amended complaint in the
Ward matter, in which he dropped the class action allegations and
added Merger Sub as a defendant.
On November 12, 2010, counsel for Ward, counsel for Lance, Merger
Sub and the Lance directors, and counsel for Snyder's concluded an
agreement in principle to settle the Ward matter, pursuant to
which Mr. Ward has executed a Release Agreement.
Pursuant to the terms of the Ward Release Agreement, Ward, among
other things:
(i) releases his individual claims related to the Merger
Agreement and the Proposed Merger;
(ii) covenants not sue the defendants to the Ward matter in
connection with the Merger Agreement or Proposed Merger;
and
(iii) agrees to file a Voluntary Dismissal within three
business days of the closing of the Proposed Merger,
dismissing with prejudice the claims Mr. Ward
individually has asserted in the Ward matter against the
defendants.
The Ward Release Agreement indicates that Ward's willingness to
execute the Ward Release Agreement was motivated in part by
Lance's inclusion in the joint proxy statement/prospectus included
in the Registration Statement on Form S-4, as amended and filed by
Lance in connection with the Proposed Merger and declared
effective by the SEC on October 29, 2010, of certain additional
disclosures related to the Proposed Merger to its stockholders,
and the payment to Mr. Ward of a settlement payment in an
immaterial amount. The effectiveness of the Ward Release
Agreement is contingent on the Closing.
A Consent Motion and Order for Stay was entered by the North
Carolina Business Court on November 15, 2010, to stay the Ward
matter pending the completion of the Closing. The Business Court
may require review of the Ward Release Agreement prior to allowing
the filing of the dismissal of the claims Mr. Ward asserted in the
Ward matter.
Also on November 12, 2010, counsel for Mr. Shaev, counsel for
Lance and the Lance directors, and counsel for Snyder's concluded
an agreement in principle to settle the Shaev matter, pursuant to
which Mr. Shaev has executed a Release Agreement containing terms
substantially similar to those of the Ward Release Agreement, and
affecting only Mr. Shaev's individual claims asserted in the Shaev
matter.
The Shaev Release Agreement indicates that Mr. Shaev's willingness
to execute the Shaev Release Agreement was also motivated in part
by Lance's inclusion in the Registration Statement of certain
additional disclosures related to the Proposed Merger to its
stockholders, and the payment to Mr. Shaev of a settlement payment
in an immaterial amount. The effectiveness of the Shaev Release
Agreement is also contingent on the Closing. An Order Granting
the Motion to Stay was entered in the United States District Court
for the Western District of North Carolina, Charlotte Division on
November 15, 2010, to stay the Shaev matter pending the completion
of the Closing. The Order indicates that the parties must report
further to the Court in the event a dismissal with prejudice has
not been filed in the Shaev matter on or before December 15, 2010.
As part of the settlements, the defendants deny all allegations of
wrongdoing and any liability to the plaintiffs. The defendants
have agreed to the settlements to avoid the expense, inconvenience
and uncertainty of further litigation. The settlements are not
expected to affect the timing of the Closing or the amount of
consideration to be paid in the Proposed Merger.
LML PAYMENT: Appeal From Suit Dismissal Pending With Supreme Court
------------------------------------------------------------------
LML Payment Systems, Inc., disclosed in its November 15, 2010,
Form 10-Q filing with the Securities and Exchange Commission for
the quarter ended September 30, 2010, that a subsidiary won
dismissal of a lawsuit but the dismissal is subject to an appeal.
During the fiscal year ended March 31, 2007 a subsidiary of the
Corporation received notification that it had been named in a
class-action lawsuit filed in the United States District Court,
Eastern District, Marshall Division, Texas, alleging that numerous
defendants, including the subsidiary of the Corporation, violated
the Driver's Privacy Protection Act regulating the use of personal
information such as driver's license numbers and home addresses
contained in motor vehicle records held by motor vehicle
departments, by not having a permissible use in obtaining the
State of Texas' entire database of names, addresses and other
personal information.
During the fiscal year ended March 31, 2009, the complaint was
dismissed with prejudice. Also during the fiscal year ended
March 31, 2009, the plaintiffs appealed this decision. On
November 4, 2009, oral arguments were heard by the Fifth Circuit
of appeals and on July 14, 2010, the Fifth Circuit of appeals
affirmed the dismissal of the complaint.
Subsequent to the three months ended September 30, 2010, the
plaintiffs filed a writ of certiorari with the Supreme Court of
the United States appealing the dismissal of the complaint.
MUNICH RE: Court Revives Armenians' Suit Over Insurance Benefits
----------------------------------------------------------------
Tim Hull at Courthouse News Service reports that the United States
Court of Appeals for the Ninth Circuit revived a class action for
insurance benefits filed by survivors of the Armenian genocide,
finding that there is no federal policy that forbids California
from recognizing the World War I-era killing of more than 500,000
Armenians as a genocide.
In a rare reversal, the federal appeals panel in Pasadena on
Friday rejected its own 2009 opinion that the lawsuit was barred
by federal foreign policy. In that ruling, Judge David Thompson
wrote for the majority that the executive branch, by lobbying
Congress against making the term official, had "clearly
establish[ed] a presidential foreign policy preference against
proving legislative recognition to an 'Armenian genocide.'"
Now, with Thompson in the dissenting minority, the panel has
reached the opposite conclusion.
"Considering the number of expressions of federal executive and
legislative support for recognition of the Armenian genocide, and
federal inaction in the face of explicit state support for such
recognition, we cannot conclude that a clear, express federal
policy forbids the state of California from using the term
'Armenian genocide,'" Judge Harry Pregerson wrote for the majority
on Friday. Judge Pregerson wrote something similar in dissent
last year.
In 2003, lead plaintiff Vazken Movsesian and other Californians of
Armenian descent sought damages for bad faith, breach of contract
and constructive trust from two German insurers owned by Munich
Re. The lawsuit relied on a California law that gave victims
until the end of 2010 to file insurance claims related to the mass
extermination of Armenians in the Ottoman Empire between 1915 and
1923.
The district court granted Munich Re's motion to dismiss the
claims for unjust enrichment and constructive trust, but allowed
the breach of contract and bad-faith claims, finding that the
California law was not preempted under the foreign affairs
doctrine.
On appeal in August 2009, the 9th Circuit voted 2-1 to dismiss the
plaintiffs' claims for unjust enrichment and constructive trust,
but allowed them to sue for breach of contract.
On rehearing, however, the panel was not convinced by the
"informal presidential communications" that Munich Re presented as
evidence of an "express federal policy against use of the term
'Armenian genocide.'"
Instead, the panel pointed to more than a decade of executive
branch commemorations and lobbying on behalf of Armenian victims.
"The executive branch has repeatedly used terms virtually
indistinguishable from 'Armenian genocide.'" Judge Pregerson
wrote, citing the use of the term by Presidents Reagan, Clinton
and Obama.
"We conclude that there is no express federal policy forbidding
states to use the term 'Armenian genocide,' and we affirm the
district court," Judge Pregerson wrote.
In dissent, Judge Thompson made substantially the same argument
that he made last year.
"Based on this undisputed evidence, which in my view is not
undermined by the federal government's occasional efforts to
commemorate these tragic and horrific events, I would conclude
that there is an express foreign policy prohibiting legislative
recognition of the 'Armenian genocide,' as pronounced by the
executive branch and as acquiesced in by Congress," Judge Thompson
wrote.
NATIONAL COAL CORP: Faces Shareholder Class Suit Over Ranger Deal
-----------------------------------------------------------------
National Coal Corp. has been sued in a stockholder class
litigation initiated by Harold Sofie, according to the Company's
November 15, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
The putative class action complaint, filed on November 2, 2010, is
asserted against the Company and each of its directors in the
Circuit Court of the Thirteenth Judicial Circuit in and for
Hillsborough County, Florida, purportedly on behalf of the public
stockholders of the Company. The complaint alleges, among other
things, that the Company's directors breached their fiduciary
duties to its public stockholders by, among other things, failing
to disclose material information in the preliminary proxy
statement the company filed on October 13, 2010, relating to the
solicitation of proxies for the special meeting of stockholders to
be held for the purpose of considering the approval and adoption
of a merger agreement between the Company and Ranger Energy
Investments LLC. Among other things, the complaint seeks class
action status, a court order enjoining the completion of the
transaction, a court order directing the Company disclose
additional information regarding the merger and merger agreement,
and the payment of attorneys' fees and expenses.
The Company has not yet answered or otherwise responded to the
complaint. The Company believes that the lawsuit is without merit
and intend to defend against the claims.
The Company adds that if the lawsuit prevents it from consummating
the merger prior to December 15, 2010, it will default on its
10.5% Notes due 2010 and most likely need to seek protection from
creditors under federal bankruptcy laws.
NETLIST INC: Obtains Final Okay of Settlement With Stockholders
---------------------------------------------------------------
Netlist, Inc., has obtained final court approval of its settlement
with the plaintiffs of a lawsuit filed in California, according to
the Company's Nov. 16, 2010 Form 10-Q filed with the Securities
and Exchange Commission for the quarter ended October 2, 2010.
Beginning in May 2007, the Company, certain of its officers and
directors, and the Company's underwriters were named as defendants
in four purported class action shareholder complaints, two of
which were filed in the U.S. District Court for the Southern
District of New York, and two of which were filed in the U.S.
District Court for the Central District of California. These
purported class action lawsuits were filed on behalf of persons
and entities who purchased or otherwise acquired the Company's
common stock pursuant or traceable to the Company's November 30,
2006 initial public offering.
The lawsuits were consolidated into a single action?Belodoff v.
Netlist, Inc., Lead Case No. SACV07-677 DOC (MLGx)?which is
currently pending in the Central District of California. Lead
Plaintiff filed the Consolidated Complaint in November 2007.
Defendants filed their motions to dismiss the Consolidated
Complaint in January 2008. The motions to dismiss were taken under
submission in April 2008 and on May 30, 2008, the court granted
the defendants' motions. However, plaintiffs were granted the
right to amend their complaint and subsequently filed their First
Amended Consolidated Class Action Complaint in July 2008.
The defendants filed motions to dismiss the Amended Complaint in
January 2009, and on April 17, 2009, the court granted defendants'
motions to dismiss. However, plaintiffs were again granted the
right to amend their complaint. Plaintiffs' filed their Second
Amended Consolidated Class Action Complaint in May 2009.
Generally, the Second Amended Complaint, like the preceding
complaints, alleged that the Registration Statement filed by the
Company in connection with the IPO contained untrue statements of
material fact or omissions of material fact in violation of
Sections 11 and 15 of Securities Act of 1933.
Defendants filed motions to dismiss the Second Amended Complaint
in June 2009. The motions to dismiss were taken under submission
in August 2009 and on September 1, 2009, the Court granted the
defendants' motions. However, plaintiffs again were granted the
right to amend their complaint.
In December 2008, the parties reached a tentative agreement in
principle to settle the class action. In February 2010, the
parties executed a Stipulation and Agreement of Settlement
documenting the essential terms of the proposed settlement,
informed the court of their proposed settlement, and drafted a
joint motion to submit to the court for preliminary approval of
the proposed settlement. Under the settlement agreement presented
to the court for approval, plaintiffs and the class will dismiss
all claims, with prejudice, in exchange for a cash payment of $2.6
million. The Company's directors' and officers' liability
insurers will pay the settlement amount in accordance with the
Company's insurance policies.
On April 19, 2010, the court issued an order preliminarily
approving the settlement. A final settlement approval was issued
on September 30, 2010.
ONVIA INC: Awaits Final Resolution of Appeals in Securities Suit
----------------------------------------------------------------
Onvia Inc. continues to defend a securities class action in New
York as the settlement agreement reached in the matter undergoes
an appeal process, according to the Company's November 15, 2010,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended September 30, 2010.
In 2001, five securities class action suits were filed against
Onvia, certain former executive officers, and the lead underwriter
of Onvia's Initial Public Offering, or IPO, Credit Suisse First
Boston, or CSFB. The suits were filed in the U.S. District Court
for the Southern District of New York on behalf of all persons who
acquired securities of Onvia between March 1, 2000 and December 6,
2000.
In 2002, a consolidated complaint was filed. The complaint
charged defendants with violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 (and Rule 10b-5 promulgated
thereunder) and Sections 11 and 15 of the Securities Act of 1933,
for issuing a Registration Statement and Prospectus that failed to
disclose and contained false and misleading statements regarding
certain commissions purported to have been received by the
underwriters, and other purported underwriter practices in
connection with their allocation of shares in the offering. The
complaint sought an undisclosed amount of damages, as well as
attorneys' fees. This action is being coordinated with
approximately 300 other nearly identical actions filed against
other companies.
At the Court's request, plaintiffs selected six "focus" cases,
which do not include Onvia. The Court indicated that its
decisions in the six focus cases are intended to provide strong
guidance for the parties in the remaining cases.
The parties in the coordinated cases, including Onvia's case,
reached a settlement. The insurers for the issuer defendants in
the coordinated cases will make the settlement payment on behalf
of the issuers, including Onvia. On October 5, 2009, the Court
granted final approval of the settlement.
Objectors to the settlement filed six notices of appeal and one
petition seeking permission to appeal to the United States Court
of Appeals for the Second Circuit. Two objectors to the
settlement filed briefs in support of their appeals. Plaintiffs-
Appellees have requested that the Court require answering briefs
to be filed by December 17, 2010. The remaining objectors
withdrew their appeals with prejudice.
Due to the inherent uncertainties of litigation, the Company says
it cannot accurately predict the ultimate outcome of the matter.
PACIFIC WEBWORKS: Faces Two More Consumer Fraud Class Suits
-----------------------------------------------------------
Pacific Webworks, Inc., is facing two more class action lawsuits
in Missouri and Florida that allege consumer law violations, the
Company disclosed in its November 15, 2010, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
September 30, 2010.
In November 2009, three lawsuits were filed against Pacific
WebWorks in various jurisdictions. The legal actions allege
similar claims related to procedures the Company uses to sell its
products in the ordinary course of business:
1. On November 9, 2009, Barbara Ford filed an action in the
Circuit Court of Cook County, Illinois, Chancery Division.
On December 18, 2009, the Barbara Ford matter was removed to
the United States District Court for the Northern District
of Illinois.
2. A second action was filed on November 12, 2009, by Deanna
Pelletier in the Superior Court of the State of California,
County of Solano. On December 18, 2009, the Deanna
Pelletier matter was removed to the United States District
Court for the Eastern District of California.
3. A third action was filed by Lisa Rasmussen on November 20,
2009, in the Superior Court of Washington, Snohomish County.
On December 23, 2009, the Lisa Rasmussen matter was removed
to the United States District Court for the Western District
of Washington.
On July 9 and 10, 2010, two additional suits brought by the same
law firm as the three cases were filed in Missouri and Florida:
1. On July 9, 2010, Randy Guffey filed an action in the
Circuit Court for the Twentieth Judicial Circuit, Collier
County, Florida, which action was removed to the United
States District Court for the Middle District of Florida,
Ft. Myers Division.
2. On July 10, 2010, Thomas Aikens filed an action in the
Circuit Court of Jackson County, Missouri, which matter was
removed to the United States District Court for the Western
District of Missouri.
All plaintiffs in these cases are being represented by the same
legal firm and each complaint seeks class action certification.
The complaints allege that Pacific WebWorks violated consumer
protection laws, committed fraud and used deceptive trade
practices in relation to the manner in which Pacific WebWorks
charged for purchases of its products. Each action seeks
compensatory and punitive damages, plus reasonable costs and
attorney fees.
In response to these actions, Pacific WebWorks retained the law
firm of Snell & Wilmer as legal counsel to vigorously defend the
Company in the lawsuits.
Discovery began on the class certification phase in the Illinois,
Washington and California lawsuits.
The Company's legal counsel intends to oppose class certification
and has filed motions to dismiss all claims in the Illinois and
Washington actions and a motion for summary judgment in the
California action.
In addition, Pacific Webworks has brought a motion to dismiss the
Guffey and Aikens actions, which motions have not yet been ruled
upon.
On December 18, 2009, another similar lawsuit was filed by Song
Que Hahn, a California resident, in the United States District
Court for the District of Utah. On February 8, 2010, the
Company's legal counsel filed a motion to strike the class
allegations and a motion to dismiss all claims, except the breach
of contract claims. On June 17, 2010, the Court granted the
Company's motion to dismiss and dismissed the entire complaint,
but gave plaintiff the right to file a motion for leave to file an
amended complaint. Mr. Hahn did file such a motion, but that
motion was denied by the Court on September 10, 2010. Currently,
no actions by Mr. Hahn are pending.
PFIZER INC: Appeal on Amendment Denial Pending in Wyeth Suit
------------------------------------------------------------
An appeal from the denial of a request to amend a complaint
against Wyeth filed by former Wyeth officers is pending at the
U.S. Court of Appeals for the Second Circuit, according to Pfizer,
Inc.'s Nov. 12, 2010 Form 10-Q filing with the Securities and
Exchange Commission for the quarter ended September 30, 2010.
On October 15, 2009, Pfizer completed its acquisition of Wyeth
and, commencing from the acquisition date, Pfizer's financial
statements include the assets, liabilities, operating results and
cash flows of Wyeth.
In 2008, a purported class action was filed in the U.S. District
Court for the Southern District of New York against Wyeth, the
Wyeth Savings Plan Committee, the Wyeth Savings Plan-Puerto Rico
Committee, the Wyeth Retirement Committee and certain former Wyeth
officers and committee members. The complaint alleges that the
defendants violated certain provisions of the Employee Retirement
Income Security Act of 1974 (ERISA) by maintaining Wyeth stock as
an investment alternative under certain Wyeth plans
notwithstanding their alleged knowledge of the purported
misrepresentation of the safety of Pristiq during the period
before the FDA's issuance on July 24, 2007 of an "approvable"
letter for Pristiq for the treatment of vasomotor symptoms of
menopause, which allegedly caused a decline in the price of Wyeth
stock.
In March 2010, the court dismissed the action. In August 2010,
the court denied the plaintiff's motion to amend the complaint.
In September 2010, the plaintiff appealed the denial of the motion
to amend the complaint and the dismissal order to the U.S. Court
of Appeals for the Second Circuit.
QVC: Recalls 7,500 Enamel-Coated 8-Inch Cast Iron Skillets
----------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
QVC, of West Chester, Pa., announced a voluntary recall of about
7,500 Enamel-coated 8-inch cast iron skillets. Consumers should
stop using recalled products immediately unless otherwise
instructed.
Small pieces of the enamel coating can pop off when the skillet is
heated, posing a burn hazard to consumers.
The firm has received five reports of enamel popping off of the
skillet, resulting in two reports of consumers receiving minor
burns.
This recall involves Technique brand enamel-coated 8-inch cast
iron skillets with two pour spouts and a ribbed underside. The
interior portion of the skillet is cream while the exterior was
sold in three colors: sage, blue and red. The brand "Technique"
is printed on the bottom of the pans. Pictures of the recalled
products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11063.html
The recalled products were manufactured in China and sold through
QVC's televised shopping programs, at qvc.com, and QVC retail and
employee stores from August 2009 through September 2010 for
between $28 and $35.
Consumers should immediately stop using the recalled skillets.
Known purchasers were mailed instructions for obtaining a full
refund. Consumers who purchased the skillets at a QVC store should
return the skillets to any QVC store for a full refund. For
additional information, contact QVC at (800) 367-9444 between 7:00
a.m. and 1:00 a.m., Eastern Time, daily, or visit the firm's Web
site at http://www.qvc.com/
RINO INTERNATIONAL: Berman DeValerio Files Securities Class Suit
----------------------------------------------------------------
The law firm of Berman DeValerio filed a securities fraud lawsuit
today on behalf of investors who purchased or otherwise acquired
the common stock of RINO International Corporation (formerly
NASDAQ:RINO, currently OTCBB:RINO) from July 13, 2009 to November
12, 2010, inclusive. Berman DeValerio (www.bermandevalerio.com)
filed the class action complaint against RINO and certain of the
Company's directors and officers in the United States District
Court for the Central District of California (the "Court"). The
case is captioned as Zhang v. RINO International Corp. et al., No.
SACV-10-01887-CJC (RNBx).
If you wish to serve as lead plaintiff, you must file a motion
with the Court no later than January 14, 2011.
The complaint alleges RINO and certain of its officers and
directors violated Sections 10(b) and 20(a) of the Securities
Exchange Act of 1934 ("Exchange Act") and Securities and Exchange
Commission Rule 10b-5. Specifically, the complaint asserts that
RINO, a Chinese manufacturer of environmental protection equipment
for China's iron and steel industry, fraudulently reported
inflated revenues to the SEC and the investing public that were,
for 2009, over 90 percent higher than the revenues reported to
Chinese regulators. In particular, the complaint alleges that
RINO misled investors by reporting revenue from at least two
customer contracts that did not exist.
On November 10, 2010, the research firm Muddy Waters LLC issued a
report that called into question the Company's customer
relationships, accounting and financial results. The report also
highlighted that on the same day that RINO closed a $100 million
financing transaction, certain officers and directors borrowed
$3.2 million from the Company to purchase a luxury home in Orange
County, California. Upon release of this report, RINO's stock
price quickly fell, declining over 15% to $13.18 on November 10.
Over the next several days, RINO reported very disappointing
third-quarter earnings, cancelled a planned earnings call with
investors and failed to respond to the allegations in the Muddy
Waters report. On November 17, 2010, the NASDAQ halted trading in
RINO, by which time the stock price had fallen to $6.07, a
decrease of 61% over less than six trading days.
The Company has since announced that investors should not rely on
its annual financial reports for the years ended December 31, 2008
and 2009, quarterly reports for the periods ended March 31, 2008
to September 30, 2009, and quarterly reports for the periods
March 31, 2010 to September 30, 2010 inasmuch as they incorporate
results from 2008 and 2009. The SEC has begun a formal
investigation into the Company's financial reporting and
compliance with the Foreign Corrupt Practices Act. The NASDAQ
delisted RINO's stock on or about December 8, 2010.
For more information, please call Berman DeValerio at (800) 516-
9926. A copy of the complaint is available at:
http://www.bermandevalerio.com/images/pdfs/rinocomplaint.pdf
If you acquired RINO shares during the Class Period and lost
money, you may, no later than January 14, 2011, file a motion
requesting that the Court appoint you as lead plaintiff for the
Class. You may contact the attorneys at Berman DeValerio to
discuss your rights and interests in the case. Please note: you
may also retain other counsel of your choice and need not take any
action at this time to be a Class member.
Berman DeValerio is a national law firm representing plaintiffs in
lawsuits against corporate wrongdoers, chiefly for violations of
securities and antitrust laws. The firm has 42 lawyers in Boston,
San Francisco and Palm Beach Gardens, Florida.
SKY-MOBI LIMITED: Class Action Lawsuits Vs. CFO Still Pending
-------------------------------------------------------------
Two securities class action lawsuits filed against Sky-mobi
Limited's chief financial officer are still pending, according to
the company's November 19, 2010, Form F-1 filing with the U.S.
Securities and Exchange Commission.
Carl Yeung, Sky-mobi's chief financial officer, serves as an
independent director and the chairman of the audit committee of
China Natural Gas, Inc., a Delaware corporation whose shares of
common stock are listed on the Nasdaq Global Market.
As of November 19, 2010, two securities class action litigations
are pending in United States federal courts against China Natural
Gas, Inc., and certain of its officers and directors including Mr.
Carl Yeung: (1) an action filed in United States District Court
for the District of Delaware on August 26, 2010 (Vandevelde v.
China Natural Gas, Inc., et al., No. 10-cv-00728); and (2) an
action filed in the United States District Court for the Southern
District of New York on September 3, 2010 (Baranowski v. China
Natural Gas, Inc., et al., No. 10-cv-06572), alleging that China
Natural Gas, Inc. failed to disclose and properly account for a
bank loan in the amount of $17.7 million in its annual report on
Form 10-K for the year ended December 31, 2009 and quarterly
report on Form 10-Q for the quarter ended March 31, 2010 and that
the pledge to secure the bank loan violated an indenture for
senior notes and warrants of the company, giving the holder of
those notes and warrants the right to declare a default under that
indenture.
The complaints further allege that on August 20, 2010, China
Natural Gas, Inc., amended its annual report on Form 10-K for the
year ended December 31, 2009 and quarterly report on Form 10-Q for
the quarter ended March 31, 2010 to disclose the bank loan and
restate its financial statements in light of the note and warrant
holder's right to declare a default under the indenture.
According to the plaintiffs, the price of China Natural Gas's
shares declined by approximately 20% in response to this news.
Mr. Yeung could potentially be held individually liable for civil
damages in these actions. As of November 19, 2010, the defendants
have not responded to these complaints.
SMART ONLINE: To Pay $350,000 to Resolve Securities Class Suit
--------------------------------------------------------------
Smart Online Inc. has struck a deal with plaintiffs of a
securities class action complaint in North Carolina that calls
for, among other things, a $350,000 settlement amount, the Company
related in its November 15, 2010, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
September 30, 2010.
On October 18, 2007, Robyn L. Gooden filed a purported class
action lawsuit in the United States District Court for the Middle
District of North Carolina naming the Company; certain of its
current and former officers and directors; Maxim Group, LLC, Jesup
& Lamont Securities Corp.; and Sherb & Co., the Company's former
independent registered accounting firm, as defendants. The
lawsuit was filed on behalf of all persons other than the
defendants who purchased the Company's securities from May 2, 2005
through September 28, 2007 and were damaged. The complaint
asserted violations of federal securities laws, including
violations of Section 10(b) of the Securities Exchange Act of
1934, as amended, and Rule 10b-5. The complaint asserted that the
defendants made material and misleading statements with the intent
to mislead the investing public and conspired in a fraudulent
scheme to manipulate trading in the Company's stock, allegedly
causing plaintiffs to purchase the stock at an inflated price.
The complaint requested certification of the plaintiff as class
representative and seeks, among other relief, unspecified
compensatory damages including interest, plus reasonable costs and
expenses including counsel fees and expert fees.
On June 24, 2008, the court entered an order appointing a lead
plaintiff for the class action.
On September 8, 2008, the plaintiff filed an amended complaint
that added additional defendants who had served as directors or
officers of the Company during the class period as well as the
Company's independent auditor.
On June 18, 2010, the Company entered into a Stipulation and
Agreement of Settlement with the lead plaintiff in the pending
securities class action. Also included in the settlement are all
the current and former officers, directors, shareholders and
employees of the Company who had also been named as defendants in
the securities class action, as well as Maxim Group. The
Stipulation provides for the settlement of the securities class
action. The settlement is subject to preliminary and final
approval of the United States District Court for the Middle
District of North Carolina, which the Company anticipates will
occur in the fourth quarter of this year.
The Stipulation provides for these terms:
* A class will be certified consisting of all persons who
purchased the Company's publicly-traded securities between
May 2, 2005 and September 28, 2007, inclusive.
* The settlement class will receive total consideration of a
cash payment of $350,000 to be made by the Company, a cash
payment of $112,500 to be made by Maxim Group, the transfer
from Henry Nouri to the class of 25,000 shares of Company
common stock and the issuance by the Company to the class of
1,475,000 shares of Company common stock.
* Counsel for the settlement class may sell some or all of the
common stock received in the settlement before distribution
to the class, subject to the limitation that it cannot sell
more than 10,000 shares on one day or 50,000 shares in 30
calendar days.
The Company reveals that subject to the terms of the Stipulation,
it paid the lead plaintiff $75,000 on July 14, 2010, and $100,000
on September 15, 2010. The terms of the stipulation still call
for the payment of $100,000 on December 14, 2010, and $75,000 on
March 14, 2011.
All claims against the settling defendants will be dismissed with
prejudice, pursuant to the Stipulation. The claims of the lead
plaintiff against Jesup & Lamont Securities Corp. and the
Company's former independent registered public accounting firm,
Sherb & Co., are not being dismissed and will continue.
Moreover, the Stipulation contains no admission of fault or
wrongdoing by the Company or the other settling defendants.
STATION CASINOS: Obtains Final OK of Nevada Class Suit Settlement
-----------------------------------------------------------------
Station Casinos, Inc., has obtained final court approval of an
agreement for the dismissal of a lawsuit in Nevada, according to
the Company's Nov. 15, 2010 Form 10-Q filed with the Securities
and Exchange Commission for the quarter ended September 30, 2010.
On February 4, 2008, Josh Lukevich, Cathy Scott and Julie St. Cyr
filed a purported class action complaint against the Company and
certain of its subsidiaries in the United States District Court
for the District of Nevada, Case No. CV-00141 (the "Federal Court
Action"). The plaintiffs are all former employees of the Company
or its subsidiaries. The complaint alleged that the Company and
its subsidiaries (i) failed to pay its employees for all hours
worked, (ii) failed to pay overtime, (iii) failed to timely pay
wages and (iv) unlawfully converted certain earned wages. The
complaint in the Federal Court Action sought, among other relief,
class certification of the lawsuit, compensatory damages in excess
of $5,000,000, punitive damages and an award of attorneys' fees
and expenses to plaintiffs' counsel.
On October 31, 2008, the Company filed a motion for judgment on
the pleadings. During a hearing on that motion, the United States
District Court questioned whether it had jurisdiction to
adjudicate the matter. After briefing regarding the jurisdiction
question, on May 16, 2009, the United States District Court
dismissed the Federal Court Action for lack of jurisdiction and
entered a judgment in the Company's favor. Subsequently, on July
21, 2009, the plaintiffs filed a purported class action complaint
against the Company and certain of its subsidiaries in the
District Court of Clark County, Nevada, Case No. A-09-595614-C
(the "State Court Action"). The complaint in the State Court
Action alleges substantially the same claims that were alleged in
the complaint in the Federal Court Action.
On August 19, 2009, the corporate defendants, other than the
Company, filed an answer responding to the complaint.
Subsequently, on August 27, 2009, the corporate defendants, other
than the Company, filed a motion to stay the State Court Action
pending the resolution of the Company's bankruptcy petition. That
motion was granted on September 30, 2009.
On or about April 30, 2010, the Company and the plaintiffs reached
an agreement to settle all claims asserted or that could have been
asserted in the State Court Action. Under the terms of the
settlement:
a. Persons who were employed by the Company or its subsidiaries
at any time between February 4, 2005 and January 28, 2009
will have an aggregate allowed $5 million general unsecured
claim in the Company's bankruptcy.
b. The Company has set aside approximately $1.3 million in an
interest-bearing bank account. After the deduction of fees,
costs and other expenses associated with the settlement, the
remaining proceeds will be distributed equally to all
persons who were employed by the Company or its subsidiaries
at any time between January 29, 2009 and the date of the
preliminary approval of the settlement by the Bankruptcy
Court.
On June 17, 2010, the State Court Action was removed to United
States District Court for the District of Nevada by agreement of
the parties.
On July 16, 2010, the Bankruptcy Court granted preliminary
approval of the settlement, and directed the parties to provide
notice to the current and former employees covered by the State
Court Action of their right to object to the settlement and/or be
excluded therefrom. No objections to the settlement were filed.
On October 26, 2010, the Bankruptcy Court granted final approval
of the settlement. Under the terms of the settlement, the
settlement funds will be distributed within 20 days from the date
that the Bankruptcy Court's final approval order becomes final and
non-appealable.
SUMMIT CONSULTING: OGH Gets Donation From Class Settlement
----------------------------------------------------------
Judy Bastien, writing for Daily World, reports the Opelousas
General Hospital Foundation has received a donation of $19,771.60,
the excess funds from a class action lawsuit that was concluded in
St. Landry Parish.
"All the court costs, all the claims, all the expenses of the
lawsuit were taken care of in the law suit and then, they had
excess funds," 27th Judicial District Judge Ellis Daigle, who
presided over the case, said at a press conference.
Excess funds from a class action lawsuit must be distributed at
the judge's discretion according to certain criteria. The money
must go to a non-profit organization, it has to be used for the
good of the community and the recipient must have some connection
to the issues of the suit.
In this instance, the case was Dr. George Ray Williams et al. vs.
Summit Consulting, a PPO class action suit, said Pat Morrow, one
of the attorneys for the plaintiff's case.
"The plaintiff brought suit against a variety of defendants as a
result of overcharging under certain worker's compensation cases
and others," Mr. Morrow said. "The case was concluded in Judge
Daigle's court."
The Opelousas General Hospital Foundation, the fundraising arm of
Opelousas General Health System, fit the criteria, Judge Daigle
said.
The money will be used to help fund Healthy Futures, a patient
assistance program at the hospital, said Dr. Tom Darbonne of the
foundation. It will help to provide transportation, medication
and other help for patients who cannot afford them.
"When they get out of the hospital, it's probably one of the most
difficult times in their lives," he said. "Many have no way of
getting home. Over the years, employees have provided money for
taxis. Sometimes, (patients) would sit in the lobby for hours,
waiting for a friend to pick them up. The funds will be used in
part in aiding those people through those difficult times in their
lives."
The money will also be used to help bridge the medication gap
between the patients' release from the hospital and the time they
are able to get medication through other agencies or programs.
The process often takes several weeks, during which the patients
are without medication and sometimes wind up back in the hospital,
Dr. Darbonne said.
There will also be assistance in for those who have had limbs
amputated and can't afford to make some of the necessary
modifications to their homes, such as wheelchair ramps.
"The funds are going to be used to assist the most needy people in
our community at very difficult times in their lives,"
Dr. Darbonne said.
TOYOTA MOTOR: Can Depose Non-California Plaintiffs in MDL
---------------------------------------------------------
Amanda Bronstad, writing for The National Law Journal, reports a
federal judge on Thursday gave Toyota Motor Corp. permission to
depose 10 plaintiffs among the 200 class actions asserting
economic damages tied to sudden uncontrolled acceleration -- and
gave both sides four months to identify which case will be the
first to go to trial.
U.S. District Judge James Selna in Santa Ana, Calif., who is
overseeing the multidistrict litigation (MDL) against Toyota,
rejected Toyota's request to depose plaintiffs in the 47
jurisdictions outside California where lawsuits have been filed.
But he also dismissed the position of lead plaintiffs' lawyer
Marc Seltzer that the depositions were "unnecessary and
burdensome."
"The burden would be excessive, the need is nonexistent," said
Seltzer, a partner in the Los Angeles office of Houston's Susman
Godfrey.
Toyota's lawyer, Cari Dawson, a partner at Atlanta's Alston &
Bird, said the depositions would determine whether there were
"irreconcilable conflicts" between California law and other state
laws under which lawsuits had been filed. Toyota's ability to
show those conflicts potentially could unravel the nationwide
consolidated class action on economic damages, which is based on
California law, since about two-thirds of the cases were filed in
other states.
In the end, Judge Selna, who called the matter a "significant
issue," gave both sides until Feb. 5 to depose 10 plaintiffs
outside California.
Judge Selna also ordered both sides to pick the first case that
could go to trial in the MDL, referred to as a "bellwether" case.
Toyota's lawyers -- including Douglas Young, a partner at San
Francisco's Farella Braun + Martel who was brought into the case
six weeks ago -- had urged Judge Selna to bump up the trial date
for the bellwether case. Vincent Galvin, managing partner of the
San Jose, Calif., office of Bowman and Brooke, offered a deal in
which plaintiffs' lawyers by next month would pick five possible
cases; Toyota would agree to one for trial.
Plaintiffs' lawyer Mark Robinson, senior partner at Newport Beach,
Calif.-based Robinson, Calcagnie & Robinson agreed to the
selection process bur urged Judge Selna to wait another year,
until the "core discovery" was completed, before selecting a
bellwether case.
The bellwether case is likely to involve claims involving the
Camry, Lexus ES or Tacoma, but it was unclear whether it would be
a personal injury or wrongful death case, or the economic class
action -- or both at the same time.
Both sides agreed, however, that Judge Selna should hear the first
trial.
The first bellwether trial involving sudden acceleration claims
could also occur in state court in Texas, where plaintiffs'
lawyers are pushing to set a trial for the first case, Galvin
said.
"So be it," Judge Selna replied. "I'm the last person to tell a
Texas judge how to run his calendar."
Also on Thursday, Judge Selna finalized most of the tentative
orders he issued on Wednesday denying the bulk of Toyota's motions
to dismiss 51 personal injury and wrongful death cases.
Judge Selna allowed plaintiffs' attorneys to re-plead their case
in 45 days.
Mr. Robinson said during a break in the hearing that he was
pleased with the judge's rulings, noting that Judge Selna refused
to grant Toyota's dismissal on the "core issues" in the case, such
as negligence. Mr. Robinson is co-liaison counsel for the
plaintiffs' steering committee in the personal injury and wrongful
death cases.
Toyota spokeswoman Celeste Migliore issued a statement following
the hearing: "It is important to emphasize that up until now all
of the Court's decisions have needed to accept the plaintiff's
allegations as fact. Toyota is encouraged that the Court
considers our framework for managing the MDL, including bellwether
trials, to be a reasonable approach, because it will bring closure
to the critical science issues. We're also pleased that we can
move forward with depositions of selective plaintiffs to bring
forth the actual facts of their cases."
Both sides spent the better part of Thursday's hearing arguing
about a proposed discovery plan. Mr. Galvin raised concern about
the protective order surrounding Toyota's "source code," the
software underlying its electronics system. Toyota considers the
source code "the most valuable asset it has," he said.
Mr. Robinson told the judge that he thought that both sides had
reached an agreement to provide the source code as long as it was
in a secured and neutral building that has been used by the
Department of Defense and the Central Intelligence Agency.
Judge Selna told both sides to work out a resolution before the
next hearing on Jan. 14.
UNIV OF PITTSBURGH: West Penn CEO Alleges Market Monopoly
---------------------------------------------------------
Andrew Conte and Luis Fabregas, writing for Pittsburgh Tribune-
Review, report the top executive at West Penn Allegheny Health
System said he does not wake up mornings worrying about his cross-
town rival, but he believes it's trying to put him out of
business.
West Penn Allegheny's lawsuit against the University of Pittsburgh
Medical Center found its way back into federal court when an
appeals court ruled that it should get a second look. A company
and a consumer filed a separate class-action lawsuit, alleging
UPMC and Highmark Inc. conspired to raise health insurance
premiums and create an anti-competitive market.
Dr. Christopher Olivia, West Penn Allegheny's CEO, said UPMC seems
intent on taking over health care in the region.
"Absolutely, I think they want to monopolize the marketplace, and
there's evidence of that all over the place," Dr. Olivia said in
an interview Friday in his North Shore offices. "Not only are
they attempting to monopolize the market, in some areas they
already have."
Dr. Olivia declined to talk specifically about the lawsuit, which
accuses UPMC of working with insurance giant Highmark to receive
inflated reimbursements with the goal of hurting West Penn
financially. The West Penn Allegheny network lost $89.9 million
last year, and plans to downsize services at West Penn Hospital in
Bloomfield.
"To not have a second health system in a city this size,
Pittsburgh will descend into the Dark Ages of monopolization from
which it will not emerge for a long, long time," Dr. Olivia said.
UPMC denied the accusation. Spokesman Paul Wood said everything
UPMC has done is lawful, unilateral and to promote competition.
"Their inability to get their financial house in order is their
own fault," Mr. Wood said. "Their struggles are entirely of their
own making. Nothing has been presented in the lawsuit that
supports even the most basic allegation."
From his office along the Allegheny River, Dr. Olivia said he can
see the Downtown offices of UPMC and Highmark. He pointed out his
office furniture is made of pressed wood, rather than the more
expensive solid wood.
West Penn Allegheny, in the midst of a massive overhaul, likely
will need four or five years to turn a profit from operations,
excluding investment income, Dr. Olivia said. The system reported
a $3.6 million loss from July through September. In its nine-year
history, it was profitable in 2004 and 2005.
Dr. Olivia could not say exactly when the system might start
making money again because the ongoing consolidation of West Penn
and Allegheny General Hospital in the North Side will lead to
additional restructuring costs this year.
The system plans to expand outpatient services, particularly in
suburban areas, while reducing unused services at its urban
hospitals, Dr. Olivia said.
"Our goal is to create an alternative health system here in
Pittsburgh for the future of the community, one that's focused on
improving quality, lowering costs and increasing access,"
Dr. Olivia said.
Although the lawsuit alleges Highmark worked with UPMC to
undermine West Penn, Dr. Olivia said he respects the insurance
company's CEO Ken Melani and believes the insurer sees a benefit
from having competing health systems.
Asked whether he believes Highmark wants to put West Penn out of
business, Dr. Olivia said, "Highmark? Today? I hope not.
"I would hope they would see the need for an alternative in the
marketplace here, and I believe that at the end of the day the
people at Highmark . . . will see the importance of having a
strong second health system."
Highmark supports competition among insurers and health care
providers, spokesman Michael Weinstein said.
"That's been a long-standing view of Highmark and we continue to
support that view," he said. "We think it's good to have
competition."
U.S. District Court Judge Arthur J. Schwab has not set a schedule
for reopening West Penn's lawsuit.
WAL-MART STORES: Sellers to Argue for Plaintiffs in Class Suit
--------------------------------------------------------------
Moira Herbst, writing for Reuters Legal, reports lawyers for women
seeking to bring the largest sex-discrimination class-action
lawsuit in U.S. history have settled on who will argue the case
before the Supreme Court: Joseph M. Sellers, a partner at
Washington D.C., plaintiffs' class-action law firm Cohen Milstein
Sellers & Toll.
Mr. Sellers, 57, a veteran civil-rights litigator, has been co-
lead counsel in the case, Wal-Mart Stores v. Dukes et al, since
2000. Other attorneys on the plaintiffs' side said it was clear
from the start that either Mr. Sellers or lead counsel Brad
Seligman, 59, would make the oral argument before the Supreme
Court. Lawyers at three other plaintiffs' law firms and two other
nonprofits are also representing would-be members of a class of
women who claim Wal-Mart paid them less than men and offered fewer
opportunities for promotions.
Arguing for Wal-Mart will be high-profile litigator Theodore J.
Boutrous, Jr., 50, a partner at Gibson, Dunn & Crutcher in Los
Angeles. Mr. Boutrous has been the company's lead counsel on the
case since it reached the U.S. Court of Appeals for the 9th
Circuit in 2004. Wal-Mart is seeking to overturn the appellate
court's decision to grant class certification to the women, a
group that could number as many as 1.5 million.
When many lawyers are representing one side, as is the case with
the potential class here, competition for the prestigious role of
arguing before the high court can be intense. But the group chose
Mr. Sellers by consensus, plaintiffs' attorneys said. On Dec. 6,
shortly after the Supreme Court announced it had granted
certiorari, Messrs. Sellers and Seligman organized an afternoon
conference call with other plaintiffs' attorneys to discuss
strategy. Mr. Seligman, a lawyer at the Impact Fund, a
Washington, D.C.-based nonprofit, says he nominated Mr. Sellers to
do the oral argument, and others on the call supported the choice.
Another lawyer involved in the discussions said that it was
generally understood that it was Mr. Sellers' turn since
Mr. Seligman had twice argued the case before the 9th U.S. Circuit
Court of Appeals-first before a three-judge panel, then before the
court en banc. The decision was finalized two days later, after
Messrs. Sellers and Seligman got the approval of their clients.
The Wal-Mart case, which is expected to be heard in March, would
be Mr. Sellers' second oral argument before the Supreme Court. In
2000, he represented a woman who had challenged the terms of her
mobile-home financing agreement. The Court in that case, Green
Tree Financial Corp. v. Randolph, ruled in favor of Mr. Sellers'
client on one issue and against him on another.
Mr. Sellers has represented plaintiffs in workplace discrimination
suits individually and through class actions. In another sex-
discrimination case against a major company, Beck v. Boeing Co.,
he represented a class of more than 28,000 female employees at
Boeing facilities in Washington state. Boeing settled in 2004,
agreeing to pay plaintiffs up to $72.5 million.
Prior to joining Cohen Milstein in 1997, Mr. Sellers was head of
the Employment Discrimination Project of the Washington Lawyers'
Committee for Civil Rights and Urban Affairs for more than 15
years. He graduated from Case Western Reserve School of Law.
Sellers said he started preparing for the oral argument the day he
was chosen. "It's certainly a high point [for me]," he said.
"This case could profoundly affect the enforcement of civil rights
law in this country."
Mr. Boutrous, who received his J.D. from the University of San
Diego, has represented corporations and other clients in federal
and state court. He represented Time Inc. and Matthew Cooper in
contempt proceedings related to the Valerie Plame case, and in
2004 persuaded the Michigan Supreme Court to overturn the largest
sexual harassment verdict in U.S. history against DaimlerChrysler
Corp. He is one of the lead lawyers for the plaintiffs in the
pending federal constitutional challenge to California's ban on
same-sex marriage.
The Wal-Mart case marks Mr. Boutrous' first argument before the
Supreme Court. Mr. Boutrous said he looks forward to arguing the
case and called the class certification unfair. "This case
presents extremely important class action issues -- not just for
Wal-Mart but for all employers, large and small, and employees
nationwide," he said.
The case is Wal-Mart Stores v. Dukes et al, U.S. Supreme Court,
No. 10-277. In addition to Cohen Milstein Sellers & Toll and the
Impact Fund, the petitioners are the San Francisco non-profit
Equal Rights Advocates, the Baltimore non-profit Public Justice
Center, San Francisco law firm Davis Cowell & Bowe and Santa Fe,
New Mexico-based law firms Tinkler Law Firm and the Bennett Firm.
In addition to Theodore Boutrous of Gibson, Dunn & Crutcher, Wal-
Mart is represented by Gibson Dunn lawyers Theodore B. Olson,
Rachel S. Brass, Theane Evangelis Kapur, Mark A. Perry and Amir C.
Tayrani.
WARNER MUSIC: Lawsuit Over Digital Music Downloads Remains Pending
------------------------------------------------------------------
A consolidated class action lawsuit filed against Warner Music
Group Corp. in New York remains pending, according to the
Company's November 17, 2010, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
September 30, 2010.
On December 20, 2005, and February 3, 2006, the Attorney General
of the State of New York served Warner Music Group Corp. with
requests for information in connection with an industry-wide
investigation as to whether the practices of industry participants
concerning the pricing of digital music downloads violate Section
1 of the Sherman Act, New York State General Business Law
Sections 340 et seq., New York Executive Law Section 63(12), and
related statutes.
On February 28, 2006, the Antitrust Division of the U.S.
Department of Justice served the Company with a request for
information in the form of a Civil Investigative Demand as to
whether its activities relating to the pricing of digitally
downloaded music violate Section 1 of the Sherman Act.
Both investigations have now been closed.
Subsequent to the announcements of the governmental
investigations, more than 30 putative class action lawsuits
concerning the pricing of digital music downloads were filed and
were later consolidated for pre-trial proceedings in the Southern
District of New York.
The consolidated amended complaint, filed on April 13, 2007,
alleges conspiracy among record companies to delay the release of
their content for digital distribution, inflate their pricing of
CDs and fix prices for digital downloads. The complaint seeks
unspecified compensatory, statutory and treble damages.
All defendants, including the Company, filed a motion to dismiss
the consolidated amended complaint on July 30, 2007.
On October 9, 2008, the District Court issued an order dismissing
the case as to all defendants, including Warner Music.
On November 20, 2008, plaintiffs filed a Notice of Appeal from the
order of the District Court to the Circuit Court for the Second
Circuit. Oral argument took place before the Second Circuit Court
of Appeals on September 21, 2009. On January 12, 2010, the Second
Circuit vacated the judgment of the District Court and remanded
the case for further proceedings.
On January 27, 2010, all defendants, including Warner Music, filed
a petition for rehearing en banc with the Second Circuit. On
March 26, 2010, the Second Circuit denied the petition for
rehearing en banc.
On August 20, 2010, all defendants including the Company, filed a
petition for Certiorari before the Supreme Court. Opposition to
the petition was due on November 22, 2010.
Warner Music says it intends to defend against these lawsuits
vigorously.
WILMINGTON TRUST: Kaplan Fox Files Securities Class Action
----------------------------------------------------------
Kaplan Fox & Kilsheimer LLP has filed a class action suit against
Wilmington Trust Corporation (NYSE: WL) that alleges violations of
the Securities Exchange Act of 1934 on behalf of purchasers of
Wilmington Trust common stock during the period April 18, 2008
through November 1, 2010, inclusive.
The case is pending in the United States District Court for the
District of Delaware (Civil Action No. 10-1086). A copy of the
complaint may be obtained from Kaplan Fox or the Court.
The Complaint alleges that, throughout the Class Period,
Defendants misrepresented the true extent of the deterioration in
its loan portfolio in press releases and its quarterly and annual
filings with the Securities and Exchange Commission and that
unknown to investors, during the Class Period, Wilmington Trust
knowingly or recklessly failed to disclose that (1) its loan
portfolio was impaired to a much larger extent than the Company
had disclosed, (2) the Company had failed to properly record
losses for its impaired assets by adequately provisioning for loan
losses each quarter in light of its known concentrations of loans
in the commercial sector and in the struggling Delaware region,
and that as result of the foregoing, (3) the Company's financial
statements were materially false and misleading and not prepared
in accordance with GAAP, including overstating the value of the
Company's assets, understating its provisions for loan losses and
understating the Company's income tax expense; and (4) Defendants
lacked a reasonable basis for their positive statements about the
Company, its prospects and growth.
The Complaint further alleges that on November 1, 2010, Wilmington
Trust shocked investors when it issued two related press releases.
According to the Complaint, in the first press release, Wilmington
Trust announced dismal results for the third quarter of 2010,
reporting a loss of $365.3 million due in part to an additional
$281.5 million loan loss provision and a $100.7 million income tax
expense associated with a valuation allowance against the
Company's deferred tax asset. The Complaint further alleges that
the Company stated that a primary cause for the loss was continued
deterioration in the Company's loan portfolio, reflecting the
extent of the Company's exposure to real estate construction
lending concentrated in Delaware, and that Wilmington Trust
further stated that it had "little assurance" that its loan
portfolio would strengthen significantly in the near term, or that
the Company's capital position would not erode further. According
to the Complaint, in the second press release, Wilmington Trust
announced that it would merge with M&T Bank Corporation ("M&T")
and that the two companies had already signed a definitive
agreement.
It is further alleged that under the terms of the merger
agreement, Wilmington Trust common shareholders will receive
0.051372 shares of M&T common stock in exchange for each share of
Wilmington Trust common stock and that at this conversion ratio,
the transaction values each Wilmington Trust common share at a
mere $3.84 per share representing what the Company claimed to be
the tangible book value as of September 30, 2010, despite
Wilmington Trust's shares closing at $7.11 per share on October
29, 2010, the last trading day before the announcement.
Finally, the Complaint alleges that upon the release of the
November 1, 2010 news, shares of the Company's common stock fell
$2.90 per share, or more than 40%, to close at $4.21 per share on
unusually heavy trading volume.
If you are a member of the proposed Class, you may move the court
no later than January 18, 2011 to serve as a lead plaintiff for
the Class. You need not seek to become a lead plaintiff in order
to share in any possible recovery.
Plaintiff seeks to recover damages on behalf of the Class and is
represented by Kaplan Fox & Kilsheimer LLP. Our firm, with offices
in New York, San Francisco, Los Angeles, Chicago and New Jersey,
has many years of experience in prosecuting investor class actions
and actions involving financial fraud. For more information about
Kaplan Fox & Kilsheimer LLP, or to review a copy of the complaint
filed in this action, you may visit our Web site at
http://www.kaplanfox.com/
If you have any questions about this Notice, the action, your
rights, or your interests, please contact:
Pamela A. Mayer, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: (800) 290-1952
(212) 687-1980
Fax: (212) 687-7714
E-mail: pmayer@kaplanfox.com
- and -
Laurence D. King, Esq.
KAPLAN FOX & KILSHEIMER LLP
350 Sansome Street, Suite 400
San Francisco, CA 94104
Telephone: (415) 772-4700
Fax: (415) 772-4707
E-mail: lking@kaplanfox.com
XO HOLDINGS: Continues to Defend Zheng Derivative Class Suit
------------------------------------------------------------
XO Holdings, Inc., continues to defend itself against a derivative
class action lawsuit in New York, according to the company's
November 15, 2010, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended September 30, 2010.
On or about June 3, 2010, Youlu Zheng filed a class action
complaint in the Supreme Court of the State of New York, County of
New York, alleging that the defendants breached fiduciary duties
in connection with the financing transaction consummated in July
2008 and other related matters. The plaintiffs request that the
court rescind the July 2008 financing transaction, award
compensatory damages to the class of plaintiffs, award the
plaintiff expenses, costs and attorneys' fees, and impose a
constructive trust in favor of the plaintiff and the class upon
benefits improperly received by the defendants.
On July 25, 2010, the plaintiffs filed an amended complaint.
The Defendants filed an answer to the amended complaint on
September 23, 2010.
The case is under consideration and the effect of the case on the
Company, if any, is not known at this time.
*********
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. Leah
Felisilda, Neil U. Lim, Rousel Elaine Fernandez, Joy A. Agravante,
Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.
Copyright 2010. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
written permission of the publishers.
Information contained herein is obtained from sources believed to
be reliable, but is not guaranteed.
The CAR subscription rate is $575 for six months delivered via
e-mail. Additional e-mail subscriptions for members of the same
firm for the term of the initial subscription or balance thereof
are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
* * * End of Transmission * * *