/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/110105.mbx C L A S S A C T I O N R E P O R T E R Wednesday, January 5, 2011, Vol. 13, No. 3 Headlines AT&T SERVICES: Sued for Failing to Pay Hourly Wages AUSTRALIA: Faces Class Action Over Long Tan Awards Controversy BANK OF AMERICA: Judge Campbell Recuses Herself in ReconTrust Suit BAR/BRI: Class Action Settlement Payments to Begin This Month C.R. BARD: Avaulta Mesh Attorneys Available to Review Claims CAL-MAINE FOODS: Awaits Approval of Direct Purchasers Settlement CARE INVESTMENT: Granted Summary Judgment in Briarwood IPO Suit COASTAL INTERNATIONAL: Faces Class Action Over Retention Bonus DELL INC: Settles Class Action Over Service Contract for $30MM DEPUY ORTHOPAEDICS: Hip Recall Lawyers Available to Review Claims ELECTRONIC ARTS: Consolidated Class Action Granted Partial Stay EVERYHOME MORTGAGE: Removes "Wienke" TILA Complaint to N.D. Calif. FACEBOOK INC: Judge Trims Click Fraud Class Action Claims FIFTH THIRD: March 16 Settlement Fairness Hearing Set FIRST MERCURY: Signs MOU to Settle Merger-Related Class Suit GENERAL MOTORS: Recalls Cadillac CTS for Passenger Air Bag GENERAL MOTORS: Recalls 111,136 Chevrolet, GMC Terrain & Cadillac MICROSOFT CORP: Sued in California Over "Downgrade Rights" NATIONAL HOLDINGS: Continues to Defend "Merrill" Suit in Calif. NATIONAL HOLDINGS: Continues to Defend Consolidated Suit in Texas NEW ENGLAND PATRIOTS: Review Sought for "Spygate" Class Action NORWICH & PETERBOROUGH: Keydata Investors to File Class Action PIMCO FUNDS: Settles Suit Over 2005 Futures Contract for $92MM STERN & STERN: Court Certifies Foreclosure Class Action UNITED STATES: Iowa Republicans Argue Over Pigford Settlement WAL-MART STORES: Blumenthal Discusses Gender Bias Suit ********* AT&T SERVICES: Sued for Failing to Pay Hourly Wages --------------------------------------------------- Herman Lu, on behalf of himself and others similarly situated v. AT&T Services, Inc. et al., Case No. 10-cv-05954-LB (N.D. Calif. December 29, 2010), accuses the telecommunication services provider of failing to pay wages for all hours worked; failing to furnish timely and accurate wage and hour statements, failing to pay termination or resignation wages in a timely manner, and other violations of the California labor code. Mr. Lu relates that during the time he was employed by the defendants, they refused to pay him for all hours worked, including "on-call" time when he was required to stay at home with a pager while "on-call" duty. The Plaintiff is represented by: Thomas W. Falvey, Esq. J.D. Henderson, Esq. LAW OFFICES OF THOMAS W. FALVEY 301 North Lake Avenue, Suite 800 Pasadena, CA 91101 Telephone: (626) 795-0205 - and - Benjamin Schonbrun, Esq. V. James DeSimone, Esq. Michael Seplow, Esq. SCHONBRUN DESIMONE SEPLOW HARRIS HOFFMAN & HARRISON LP 72 Ocean Front Walk Venice, CA 90291 Telephone: (310) 396-0731 AUSTRALIA: Faces Class Action Over Long Tan Awards Controversy -------------------------------------------------------------- David Ellery, writing for The Sydney Morning Herald, reports Harry Smith is again leading his soldiers from the Battle of Long Tan, this time taking their fight for battlefield honors to court. The lieutenant-colonel, who has been campaigning for 14 years to have his men appropriately honored, said the recent recognition of a tribunal set up to examine the Long Tan awards controversy in 2008 as a statutory body under the Defence Act had opened the door for a class action on behalf of 11 of his men in the Federal Court. A key issue is the claim that high command manipulated the awards system to favor officers over the men who actually fought in the battle. It is understood two highly placed senior counsel have already offered to take the case pro bono. Colonel Smith, now 78, said his men had been denied their medals and bravery awards by the senior command's perception that Vietnam was not a "real war" and an honors system that was manipulated in favor of the higher ranks. Of the 726 awards given out in the 10 years Australians served in Vietnam only 22 medals had gone to privates, he said. "Many more went to major-generals, brigadiers, colonels and lieutenant colonels far from the action." He believes the Federal Court will reverse previous decisions by a succession of Defence inquiries and appeal hearings to deny the medals and commendations he had recommended. The colonel, who led 108 Australian soldiers against an estimated 3000 Vietcong regulars on August 18, 1966, is particularly passionate about the case of Second Lieutenant Gordon Sharp. Lieutenant Sharp, a national service officer shot and killed while directing artillery fire to protect his men, was put forward for a Mentioned in Dispatches. At the same time Colonel Smith's recommendations were refused, a postal officer at Vung Tau, a rest and recreation area near Saigon, was Mentioned in Dispatches for "good administrative procedures", he said. A sticking point in previous inquiries has been the absence of the recommendations filled out by Colonel Smith -- then a major -- the day after the battle. He believes senior officers had torn up his citations and replaced them with others of their own. Long Tan is now recognized as one of the Australian Army's greatest feats of arms. Colonel Smith said his men, who fired 10,200 rounds of ammunition in the three-hour battle, killed between 1200 and 1500 Vietnamese soldiers with the aid of intensive artillery and air support. While Colonel Smith is reluctant to publicly criticize his former commanders, there is little doubt any court action will focus attention on the two Distinguished Service Orders awarded to senior officers who did not take part in the firefight. BANK OF AMERICA: Judge Campbell Recuses Herself in ReconTrust Suit ------------------------------------------------------------------ Morgan Skinner, writing for KCSG News, reports US District Chief Judge Tena Campbell recused herself in the class action lawsuit against ReconTrust and Bank of America, Mortgage Electronic Registration Systems, Countrywide Home Loans, HSBC Bank, Wells Fargo Bank, U.S. Bank, Bank of New York/Mellon, KeyBank filed in Utah federal court Friday, November 5, 2010, alleging violations of the Fair Debt Collections Practices Act, Utah Pattern of Unlawful Activity Act, Unlawful Foreclosures, and Intentional Infliction of Emotional Distress. Upon Judge Campbell's recusal from the case, it was sent to Judge Clark Waddoups who has the Peni Cox case (No.10-00492) before his court based upon the same issues and the same defendants, ReconTrust and Bank of America. The case is also on appeal to the 10th Circuit Court in Denver, Colorado. KCSG News learned from court records filed in the docket on December 30 that Judge Waddoups recused himself December 21, 2010. So, the question is why did Judge Waddoups recuse himself in the class action matter and not recuse himself in the Peni Cox case pending before him when this case is about the same issues against the same defendants? What's changed other than it's now a class action case? Both matters filed in Utah District federal court by attorneys E. Craig Smay and John Christian Barlow allege that ReconTrust has violated the FDCPA by proceeding with non-judicial foreclosure sales. The complaint states that ReconTrust lacks the power of sale and therefore, its actions are within the definition of debt collection. ReconTrust has used the mail, internet, and other instrumentalities of interstate commerce in its attempt to collect the debt, the complaint says that ReconTrust has engaged in this pattern of activity repeatedly over the course of many years, and as a result of this activity, each foreclosure is wrongful. The complaint says the intentional and unlawful activity of ReconTrust has caused widespread loss of property and intentional infliction of emotional distress. Mr. Barlow told KCSG News in November he "hoped that homeowners and government officials could work together to see that illegitimate corporations such as ReconTrust are not allowed to trample on the well crafted laws of the State of Utah." Messrs. Barlow and Smay continue their Herculean task of trying to protect the rights of Utah citizens and homeowners against the financial giants asking the court to require the defendants to adhere to Utah law which stipulates that all foreign corporations must register to do business in the State of Utah, and only members of the Utah State Bar and Utah Title Insurance companies are allowed to perform non-judicial foreclosures. The defendants, ReconTrust and the Bank of America, claim their national banking charter trumps state law. In the Cuomo v. Clearing House Association case (No. 08-453) the US Supreme Court in June of 2009 decided, 5-4, that a federal banking regulation does not pre-empt the ability of states to enforce their own fair-lending laws. The Court determined that the Office of the Comptroller of the Currency is the sole regulator of national banks but it does not have the authority under the National Bank Act to pre-empt enforcement of state law against national banks. This is the underlying premise in the class action lawsuit before the court as well as the Peni Cox case. The class action complaint is based upon four separate Utah court cases in which the Bank of America through their foreclosure agent, ReconTrust has illegally foreclosed on homes in Utah, according to the court records. ReconTrust Company, N.A. is a wholly owned subsidiary of Bank of America, N.A. BAR/BRI: Class Action Settlement Payments to Begin This Month ------------------------------------------------------------- According to an article posted at The Blog of Legal Times by Jeff Jeffrey, claimants in the long-running BAR/BRI class action are set to begin receiving settlement payments to help compensate them for the alleged conspiracy between BAR/BRI and Kaplan that caused about 130,000 prospective law students to overpay for bar-review prep courses. Those payments will begin being sent to claimants this month. Earlier in December, the U.S. District Court for the Central District of California approved a partial payment plan that will dole out some of the money in the settlement that has languished for years while plaintiffs' lawyers and Los Angeles federal judge Manuel Real sparred over the amount that those lawyers would receive in fees. In February, Real determined that McGuire Woods was not entitled to the $12 million it sought in fees after it scored a $49 million antitrust settlement with BAR/BRI parent company West Publishing Corp. in July 2007 because of a conflict of interest that violated ethics rules. McGuire Woods has appealed that finding to the U.S. Court of Appeals for the 9th Circuit, which has already upheld the settlement but remanded the case to the trial judge to re-evaluate attorneys' fees. But due to a motion filed in October by lead plaintiffs' attorney Sidney Kanazawa, an L.A.-based McGuire Woods partner, the money in the settlement fund that isn't affected by the appeal will begin being handed out in January. "We felt that it didn't make sense for that money to sit waiting in the fund until all of the appeals were exhausted. This was a way to start getting some of that money to the people to which it is owed," Mr. Kanazawa said. According to the Web site set up to inform claimants of the case's status, $30 million of the settlement fund will be distributed. The total amount of the payment class members can receive cannot amount to more than 30% of the amount paid by the claimant for their bar review course. In the case of the partial payments, for each recognized claim of $2,000, a partial reward of $277 will be sent out. Mr. Kanazawa said that once the fee issue is settled, claimants stand to receive more money. The class action was filed on behalf of all prospective law students who purchased a full-service bar review course from BAR/BRI anywhere in the United States anytime from Aug. 1997 through July 2006. In order to have their claim considered, claimants must have had their claim form postmarked no later than Sept. 17, 2007. C.R. BARD: Avaulta Mesh Attorneys Available to Review Claims ------------------------------------------------------------ The Avaulta mesh attorneys working with Class Action.org are available to review claims from women who have experienced Avaulta mesh problems. Used to treat pelvic organ prolapse and urinary incontinence, the C.R. Bard Avaulta mesh has been associated with a number of complications, including mesh erosion and urinary problems. Although an Avaulta mesh recall has not been issued, women who have experienced serious Avaulta mesh side effects may still have legal recourse. To find out if you can participate in an Avaulta mesh lawsuit, visit http://www.classaction.org/avaulta-transvaginal-mesh.html today and complete the free case evaluation form. Several Avaulta mesh lawsuits allege that the company failed to warn patients and doctors of potential mesh complications and negligently designed the product. It is believed that the Bard Avaulta mesh was designed in a way which prevents the surrounding tissue from receiving oxygen and nutrients. This can interfere with the healing process and lead to a number of Avaulta mesh side effects, including inflammation, pelvic pain, permanent nerve damage and infection. In October 2008, the FDA released a warning regarding problems with transvaginal meshes used to repair stress urinary incontinence and pelvic organ prolapse. In three years, the FDA received more than 1000 reports of vaginal mesh problems from nine manufacturers, including C.R. Bard which sells the Avaulta Solo, Avaulta Plus and Avaulta Biosynthetic. The following were among the reported vaginal mesh problems: pain; infection; mesh erosion; urinary problems; recurrence of prolapse; vaginal scarring; and bowel, bladder and blood vessel perforation. If you or a loved one has experienced Avaulta mesh problems, you may be entitled to compensation for medical bills, pain and suffering and other damages. To find out if you can participate in an Avaulta mesh class action to recover damages, visit Class Action.org for a free online case review. The Avaulta mesh lawyers working with Class Action.org are providing this case evaluation at no cost and are dedicated to protecting the rights of women who suffered from Avaulta mesh side effects. Class Action.org is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.org/today for a no cost, no obligation case evaluation and information about your consumer rights. CAL-MAINE FOODS: Awaits Approval of Direct Purchasers Settlement ---------------------------------------------------------------- According to a Dec. 30, 2010, Form 10-Q filed with the Securities and Exchange Commission for the quarter ended Nov. 27, 2010, Cal- Maine Foods, Inc., is awaiting court approval of its settlement with direct purchasers of eggs, who alleged that the Company was involved in fixing the prices of the commodity. Since September 25, 2008, the Company has been named as one of several defendants in 21 antitrust cases involving the United States shell egg industry. In sixteen of these cases, the named plaintiffs sued on behalf of themselves and a putative class of others who claim to be similarly situated. In fourteen of those putative class actions, the named plaintiffs allege that they are retailers or distributors that purchased shell eggs and egg products directly from one or more of the defendants. In the other two putative class actions, the named plaintiffs are individuals or companies who allege that they purchased shell eggs and egg products indirectly from one or more of the defendants - that is, they purchased from retailers that had previously purchased from defendants or other parties. In the remaining five cases, the plaintiffs sued for their own alleged damages and are not seeking to certify a class. The Judicial Panel on Multidistrict Litigation consolidated all of the putative class actions (as well as certain other cases in which the Company was not a named defendant) for pretrial proceedings in the United States District Court for the Eastern District of Pennsylvania. The Pennsylvania court has organized the putative class actions around two groups (direct purchasers and indirect purchasers) and has named interim lead counsel for the named plaintiffs in each group. The named plaintiffs in the direct purchaser case filed a consolidated complaint on January 30, 2009. On April 30, 2009, the Company filed motions to dismiss the direct purchasers' consolidated complaint. The direct purchaser plaintiffs did not respond to those motions. Instead, the direct purchaser plaintiffs announced a potential settlement with one defendant. That settlement is still subject to court approval, but if it is approved, the settlement would not require the settling party to pay any money. Instead, the settling defendant, while denying all liability, would provide cooperation in the form of documents and witness interviews to the plaintiffs' attorneys. After announcing this potential settlement with one defendant, the direct purchaser plaintiffs filed an amended complaint on December 11, 2009. On February 5, 2010, the Company joined with other defendants in moving to dismiss the direct purchaser plaintiffs' claims for damages outside the four-year statute of limitations period and claims arising from a supposed conspiracy in the egg products sector. The court heard oral argument on these motions but has not yet ruled. On February 26, 2010, the Company filed its answer and affirmative defenses to the direct purchaser plaintiffs' amended complaint. On June 4, 2010, the direct purchaser plaintiffs announced a potential settlement with a second defendant. This settlement is still subject to court approval. If this settlement is approved, then the defendant would pay a total of $25 million and would provide other consideration in the form of documents, witness interviews, and declarations. This settling defendant denied all liability in its potential agreement with the direct purchaser plaintiffs and stated publicly that it settled merely to avoid the cost and uncertainty of continued litigation. The named plaintiffs in the indirect purchaser case filed a consolidated complaint on February 27, 2009. On April 30, 2009, the Company filed motions to dismiss the indirect purchasers' consolidated complaint. The indirect purchaser plaintiffs did not respond to those motions. Instead, the indirect purchaser plaintiffs filed an amended complaint on April 8, 2010. On May 7, 2010, the Company joined with other defendants in moving to dismiss the indirect purchaser plaintiffs' claims for damages outside the four-year statute of limitations period, claims arising from a supposed conspiracy in the egg products sector, claims arising under certain state antitrust and consumer frauds statutes, and common-law claims for unjust enrichment. The court heard oral argument on these motions but has not yet ruled. On June 4, 2010, the Company filed its answer and affirmative defenses to the indirect purchaser plaintiffs' amended complaint. In all of the cases, the plaintiffs allege that the Company and certain other large domestic egg producers conspired to reduce the domestic supply of eggs in a concerted effort to raise the price of eggs to artificially high levels. In each case, plaintiffs allege that all defendants agreed to reduce the domestic supply of eggs by (a) manipulating egg exports and (b) implementing industry-wide animal welfare guidelines that reduced the number of hens and eggs. Both groups of named plaintiffs in the putative class actions seek treble damages and injunctive relief on behalf of themselves and all other putative class members in the United States. Both groups of named plaintiffs in the putative class actions allege a class period starting on January 1, 2000 and running "through the present." The direct purchaser putative class action case alleges two separate sub-classes -- one for direct purchasers of shell eggs and one for direct purchasers of egg products. The direct purchaser putative class action case seeks relief under the Sherman Act. The indirect purchaser putative class action case seeks relief under the Sherman Act and the statutes and common-law of various states, the District of Columbia, and Puerto Rico. The Pennsylvania court has entered a series of orders in the putative class actions related to case management and scheduling. There is no definite schedule in either putative class action case for discovery, class certification proceedings, or filing motions for summary judgment. No trial date has been set in either putative class action case. The non-class cases were filed so recently that the court has not set any schedule for them. CARE INVESTMENT: Granted Summary Judgment in Briarwood IPO Suit --------------------------------------------------------------- Care Investment Trust Inc., a real estate investment and finance company formed to invest in healthcare-related real estate and commercial mortgage debt, reported in a Dec. 29, 2010, Form 8-K filed with the Securities and Exchange Commission, that on December 22, 2010, it was granted summary judgment by the United States District Court of the Southern District of New York in Briarwood v. Care, a class action lawsuit brought in connection with the Company's IPO in 2007. The plaintiffs may appeal within 30 days after the summary judgment order or judgment is entered. COASTAL INTERNATIONAL: Faces Class Action Over Retention Bonus -------------------------------------------------------------- The Courier-Journal reports a former security guard at Fort Campbell is suing one of the U.S. government's largest private security contractors, claiming the company induced him and others to stay on the job with the promise of a retention bonus that's never been paid. Kenneth Callender of Clarksville, Tenn., is seeking class-action status for the lawsuit. It accuses Coastal International Security -- a Lorton, Va.-based company that provides guards to the departments of State, Homeland Security and Defense -- of breach of contract for refusing to pay a promised $1,500 retention bonus. Mr. Callender's attorney, Rowdy Meeks of Kansas City, Mo., said the lawsuit would cover about 200 private guards at Fort Campbell if it is certified as class-action. In addition to the guards at the Army post that straddles the Kentucky-Tennessee state line, it may cover an undetermined number of guards from Fort Knox and posts in the company's "Army Midwest" region in Kansas, Missouri, Kentucky and Michigan. "We're still trying to figure out how many people that is," Mr. Meeks said on Dec. 28. Steve Moon, a spokesman for the U.S. Army's Installation Management Command in San Antonio, Texas, which oversees the security contracts, said 442 security guards were working at the posts in the four states: 18 at Detroit Arsenal in Michigan; 65 at Fort Leonard Wood in Missouri; 81 at Fort Knox and 168 at Fort Campbell in Kentucky; and 74 at Fort Riley and 36 at Fort Leavenworth in Kansas. A message left for a Coastal International Security spokesman was not immediately returned on Dec. 28. Mr. Callender sued on Dec. 30 in U.S. District Court in Paducah. Coastal's contract to provide security at Fort Campbell, Fort Knox and other posts ended in September, when the Installation Management Command switched the job to government employees. Bill Costlow, public affairs director for the Installation Management Command, said private contractors needed to be phased out by law by 2011, which is why Coastal International Security's contract was allowed to expire. Rowdy Meeks may be reached at: Rowdy Meeks, Esq. ROWDY MEEKS LEGAL GROUP LLC 4717 Grand Ave., Suite 840 Kansas City, MO 64112 Telephone: 816-531-2277 877-783-4729 (Toll Free) Facsimile: 816-531-7722 DELL INC: Settles Class Action Over Service Contract for $30MM -------------------------------------------------------------- LawyersandSettlements.com reports a settlement has been reached in a class action suit against Dell concerning allegations that Dell and the other defendants engaged in wrongful conduct by failing to disclose that there was a cost for the first-year at-home service contract, and by representing that at-home service would occur on the next business day after a customer initially requested service from Dell. Dell has agreed to establish a $30 million settlement fund to pay out eligible class members. To be considered a class member of the Fiori v. Dell class action lawsuit settlement, you must be a consumer in California or Arizona who purchased a Dell notebook or desktop computer with an at-home service contract directly from Dell between January 1, 2000 and July 31, 2010. Class members who submit valid claims postmarked by the deadline of May 20, 2011 will receive either a $10, $8 or $4 cash benefit from the Dell service contract class action settlement. Those who wish to exclude themselves from the class action settlement must submit their request by February 22, 2011. In addition to cash payments, the Dell service contract settlement will require Dell to implement the following changes to their sales practices for at least two years: (I) Invoices and acknowledgements sent to consumers will not list $0 next to Service Contracts that are sold with the computer system; (II) The price of a Service Contract sold with a computer shall be disclosed to consumers in the invoice, acknowledgement, Service Contract, or accompanying documentation; and (III) Dell will disclose pricing information for Service Contracts for its computers on its website and by telephone. DEPUY ORTHOPAEDICS: Hip Recall Lawyers Available to Review Claims ----------------------------------------------------------------- The DePuy hip recall lawyers working with Class Action.org are available to review claims from recipients of the DePuy ASR Hip Resurfacing System or the ASR XL Acetabular System. These two hip replacement products were recalled in August 2010 after new data revealed that more patients than expected suffered from pain and other symptoms which led to a second hip replacement procedure. If you have been implanted with a recalled DePuy hip implant, visit http://www.classaction.org/depuy-asr-hip-implant.htmltoday to learn more about the hip replacement recall and to receive a free online review of your claim. New information from the National Joint Registry of England and Wales prompted the DePuy hip implant recall of the ASR Hip Resurfacing System and the ASR XL Acetabular System. The data revealed that within five years, one in eight patients needed a second surgery, also known as a revision surgery, following the initial procedure. Specifically, five years after the first hip replacement surgery, approximately 12% of patients who were implanted with the ASR Hip Resurfacing System and 13% of patients who were implanted with the ASR XL Acetabular System required revision surgery. Patients who reported problems with the recalled DePuy ASR hip implants and required corrective surgery complained of a number of symptoms, including swelling, trouble walking and pain. Other symptoms which may indicate a hip implant failure or loosening may include the following: unexplained hip pain; groin and thigh pain; pain with weight bearing; and pain when rising from a seated position. Although some of these symptoms are expected following a hip replacement surgery, prolonged symptoms may be indicative of a more serious problem. If you have been implanted with the DePuy ASR Hip Resurfacing System or the ASR XL Acetabular System, do not wait to develop pain or other symptoms before you seek legal assistance. Visit Class Action.org today and complete the free case evaluation form to find out if you can participate in a DePuy hip recall lawsuit. The DePuy hip recall attorneys working with Class Action.org are offering this legal consultation at no cost and are committed to defending the rights of patients who were injured due to defective medical devices. Class Action.org is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.org/today for a no cost, no obligation case evaluation and information about your consumer rights. ELECTRONIC ARTS: Consolidated Class Action Granted Partial Stay --------------------------------------------------------------- Electronic Arts can stay a consolidated class action accusing it of conspiring to dupe college athletes into signing away their rights to profit from their own images, a federal judge in Oakland, Calif., ruled. U.S. District Judge Claudia Wilken said EA was entitled to proceedings and discovery because it has appealed the court's denial of its anti-SLAPP (Strategic Lawsuit Against Public Participation) motion to strike. Though the anti-SLAPP claims were only filed in connection to the lawsuit brought by former Arizona State quarterback Samuel Keller, Judge Wilken said she used her discretion to stay proceedings and discovery against EA on other plaintiffs' claims that are identical to those on appeal. Mr. Keller filed his complaint, claiming EA conspired with the NCAA and Collegiate Licensing to violate his right of publicity, in May 2009. UCLA basketball star Edward O'Bannon filed his complaint two months later, asserting antitrust claims against NCAA and CLC. University of North Carolina football player Bryon Bishop sued over misappropriation of image in September. All three complaints were consolidated in January, and the plaintiffs filed an amended complaint in March. Judge Wilken refused to stay proceedings and discovery for the NCAA and CLC. Mr. Keller, Bishop, Bryan Cummings and Lamarr Watkins and Byron had moved to deconsolidate, but Wilken rejected that motion as well. A dozen plaintiffs, including Mr. O'Bannon, joined the defendants in fighting the motion to deconsolidate. A copy of the Order Granting in Part and Denying in Part EA's Motion to Stay, Denying CLC's and NCAA's Motions to Stay, and Denying Without Prejudice Publicity-Rights Plaintiffs' Motion to De-Consolidate in In Re NCAA Student-Athlete Name & Likeness Litigation, No. 09-cv-01967 (N.D. Calif.), is available at: http://www.courthousenews.com/2010/12/29/ncaa.pdf EVERYHOME MORTGAGE: Removes "Wienke" TILA Complaint to N.D. Calif. ------------------------------------------------------------------ Shelley Wienke, individually and on behalf of others similarly situated v. Everhome Mortgage Company, et al., Case No. CV40964 (Calif. Super. Ct., Lake Cty.) was filed on November 18, 2010). The plaintiff seeks to represent all persons who had their applications for loan modification denied by Everhome Mortgage at any time between January 1, 2007, and December 31, 2009. The plaintiff accuses Everhome Mortgage of breaching its agreement to forbear from foreclosing on the plaintiff's property subject of its lien, during the pendency of the plaintiff's loan modification application, provided that plaintiff, beginning November 1, 2009, through and including April 2010, pay the monthly sum of $600, and comply with all loan modification documentation requirements. The alleged foreclosure was made despite the defendant having accepted all payments under the agreement, and the plaintiff's compliance with all documentation requirements for loan modification. The plaintiff's property is located at 3780 Mendocino Street, Clearlake, in California. The Complaint alleges violations of various statutes, including the Federal Truth In Lending Act with the Act's corresponding Regulation Z. On the basis that the appropriate district court has original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States, including the plaintiff's T.I.L.A. Complaint, Everyhome Mortgage, on December 28, 2010, removed the lawsuit to the Northern District of California, and the Clerk assigned Case No. 10-cv-0943 to the proceeding. The Plaintiff (In Pro Per) represents herself in this action: Shelley Wienke P.O. Box 320622 San Francisco, CA94132 Telephone: (707) 295-2022 The Defendant is represented by: William G. Malcolm, Esq. Don Robinson, Esq. MALCOLM + CISNEROS 2112 Business Center Drive, 2nd Floor Irvine, CA 92612 Telephone: (949) 252-9400 E-mail: bill@mclaw.org FACEBOOK INC: Judge Trims Click Fraud Class Action Claims --------------------------------------------------------- Courthouse News Service reports that a federal judge in San Jose, Calif., further parsed a class action accusing Facebook of overcharging advertisers for fraudulent or bogus clicks. In a ruling on Dec. 15, U.S. District Judge Jeremy Fogel dismissed allegations brought by RootZoo, Steven Price and Fox Test Prep under a California unfair competition statute, claiming that Facebook uses an insufficient click-filtering system. Judge Fogel had dismissed other claims in August for breach of contract based on click fraud and for unfair competition under California law. The class claimed Facebook misrepresented how it would charge for advertising and justified overcharges with blanket disclaimers. RootZoo argued that it told Facebook in June 2008 that its records revealed "almost . . . statistically impossible" number clicks from small towns, and that Facebook covered up serious flaws in its system, the ruling states. Judge Fogel did not take much stock in the claims, and agreed to trim some of the charges. "Plaintiffs' current allegations, even viewed in the light most favorable to them, are insufficient to support a reasonable inference that Facebook knew of the problems at the time that it made its representations in the help center with respect to the filtering systems," the ruling states. "RootZoo does not provide more than conclusory allegations with respect to the materiality of the discrepancy or the 'almost' impossibility of the number of clicks." A copy of the Order Granting Motion to Dismiss Second Amended Consolidated Class Action Complaint in In Re Facebook PPC Advertising Litigation, Case Nos. 09-cv-03043, 09-cv-03519, and 09-cv-03430 (N.D. Calif.), is available at: http://www.courthousenews.com/2010/12/29/fb.pdf FIFTH THIRD: March 16 Settlement Fairness Hearing Set ----------------------------------------------------- Gaston Gazette reports Fifth Third Bank account holders who paid overdraft fees between October 2004 and July 2010 could get triple that money back as the result of a pending settlement. The Cincinnati, Ohio-based bank has also agreed to change its policies on posting transactions and forgiving overdraft charges. Fifth Third has nearby branches in Lincolnton, Kings Mountain, Maiden and Charlotte. The class-action lawsuit, which centers on the method Fifth Third uses for determining overdraft charges, originated in Illinois. If approved during a March 16 fairness hearing, Fifth Third will put $9.5 million into a fund to pay customers and attorneys as well as the costs of notifying people and administering the money. The amount each applicant gets will depend on how many people submit claims. The settlement could award plaintiffs up to three times the amount of overdraft fees claimed. Claims, however, can be submitted only for a single 45-day period between Oct. 21, 2004, and July 1, 2010. To qualify for a cash settlement, current or former Fifth Third account holders will have to submit the appropriate forms, either online at http://www.OverdraftSettlement.com/or by mail. Customers can get a paper form by calling 1-888-235-7491. The suit alleges that the bank "re-sequenced" transactions in order to charge the maximum amount possible in overdraft fees. In other words, the bank is accused of posting debit card purchases and ATM withdrawals in a different order than they took place. Because the bank charges a fee for every purchase or withdrawal made after an account is overdrawn, drafting the largest amounts first could empty an account sooner and lead to more overdraft charges. Fifth Third has argued its deposit agreement with customers authorized the bank to pay out purchases from the highest to the lowest amount. But the bank has agreed to begin posting withdrawals in chronological order starting in early 2011, according to a statement from spokesman Whitney Ellis on Dec. 27. As another part of the settlement, Fifth Third has also agreed to train customer service employees on overdraft issues. Those workers will have the authority to forgive any overdraft fee for good cause, according to the settlement. That could include the waiver of one such fee a year, as well as fees that result from errors or hardship situations, according to the agreement filed in U.S. District Court in Illinois' northern district. Bank spokesman George Dick said customer service representatives have always had the authority to waive fees at their discretion. Fifth Third admits no wrongdoing in agreeing to the settlement. Ms. Ellis' statement said the company feels it is in its best interest to put the matter to rest and move forward. Notification about the settlement, as required by the court, began in late November. Fifth Third customers say they have gotten notice on recent bank statements. A message appears on the bank's Webs site, http://www.53.com/ Customers will be able to view bank statements on the site to determine how much they paid in overdraft fees. The claim form requires people to list that amount. Anyone affected by the settlement can ask to be excluded from the agreement or can object to the terms. The deadline for exclusions and objections is Feb. 23. The deadline for claims is May 2. FIRST MERCURY: Signs MOU to Settle Merger-Related Class Suit ------------------------------------------------------------ First Mercury Financial Corporation disclosed that it has entered into a memorandum of understanding with plaintiffs of a class action lawsuit so as not to endanger the Company's merger with Fairfax Financial Holdings, according to the Company's Dec. 30, 2010, Form 8-K filed with the Securities and Exchange Commission. On October 28, 2010, the Company, entered into an Agreement and Plan of Merger with Fairfax Financial Holdings Limited and Fairfax Investments III USA Corp., a Delaware corporation and an indirect wholly-owned subsidiary of Fairfax, pursuant to which Fairfax Investments as Merger Sub will merge with and into the Company, and the Company will continue as the surviving corporation. On December 14, 2010, the Company filed with the SEC a definitive proxy statement in connection with the proposed merger. At the special meeting of stockholders of the Company, which is scheduled for January 14, 2011, stockholders of the Company will be asked to consider and vote upon the proposal to adopt the Merger Agreement. The Company disclosed on November 12, 2010, that a putative class action lawsuit relating to the Merger was filed in the United States District Court Eastern District of Michigan Southern Division, alleging that the consideration that the Company's stockholders will receive in connection with the Merger is inadequate and that the Company's directors breached their fiduciary duties to stockholders in negotiating and approving the Merger Agreement. The Lawsuit further alleges that the Company and Fairfax aided and abetted the alleged breaches by the Company's directors. On December 30, 2010, the Company entered into a memorandum of understanding with the plaintiffs regarding the settlement of the Lawsuit. The Company believes that the Definitive Proxy Statement complies with applicable laws and that no further disclosure is required to supplement the Definitive Proxy Statement. However, to avoid the risk that the Lawsuit may delay or otherwise adversely affect the consummation of the Merger and to minimize the expense of defending the Lawsuit, the Company has agreed to make certain supplemental disclosures related to the proposed Merger. Subject to completion of certain confirmatory discovery by counsel to the plaintiffs, the memorandum of understanding contemplates that the parties will enter into a stipulation of settlement. The stipulation of settlement will be subject to customary conditions, including court approval following notice to the Company's stockholders. In the event that the parties enter into a stipulation of settlement, a hearing will be scheduled at which the United States District Court Eastern District of Michigan Southern Division will consider the fairness, reasonableness, and adequacy of the settlement. If the settlement is finally approved by the court, it will resolve and release all claims in all actions that were or could have been brought challenging any aspect of the proposed Merger, the Merger Agreement, and any disclosure made in connection therewith (but excluding claims for appraisal under Section 262 of the Delaware General Corporation Law), pursuant to terms that will be disclosed to stockholders prior to final approval of the settlement. In addition, in connection with the settlement, the parties contemplate that plaintiff's counsel will file a petition in the United States District Court Eastern District of Michigan Southern Division for an award of attorneys' fees. The settlement costs, comprised of the attorneys' fees awarded to the plaintiff's counsel and the costs incurred by the Company to defend the Lawsuit, will be paid by the Company. The Company and the other defendants have vigorously denied, and continue to vigorously deny, that they have committed or aided and abetted in the commission of any violation of law or engaged in any of the wrongful acts that were or could have been alleged in the Lawsuit, and expressly maintain that, to the extent applicable, they diligently and scrupulously complied with their fiduciary and other legal burdens and are entering into the contemplated settlement solely to eliminate the burden and expense of further litigation, to put the claims that were or could have been asserted to rest, and to avoid any possible delay in the consummation of the Merger. GENERAL MOTORS: Recalls Cadillac CTS for Passenger Air Bag ---------------------------------------------------------- General Motors is recalling about 109,000 Cadillac CTS models from the 2005-2007 model years because of a kink, bend or fold in the front passenger presence system mat that can lead to the passenger air bag failing to deploy. If the airbag becomes disabled, the passenger airbag status indicator on the rearview mirror will show that the airbag is off, the Air Bag indicator will be illuminated, and a Service Air Bag message will appear in the Driver Information Center. In the event of a crash severe enough to activate the front passenger airbag, if the passenger airbag does not deploy, it could result in increased injury for the occupant. There are no known injuries or fatalities related to this condition. The passenger presence system in affected vehicles may have been built with a sensor mat that can kink, bend, or fold while the seat is in use. This flexing can cause the traces in the mat to fatigue and fracture, causing loss of continuity in the trace that would tell the airbag to deploy. Dealers will replace the passenger presence system in affected vehicles at no charge to the customer. Owner letters are expected to begin mailing in February 2011. Owners of certain other 2005- 2007 that have significantly lower incident rates will be provided free repairs for the issue for up to 10 years or 120,000 miles. The type of Passenger Presence System was changed with the 2008 CTS model. No other GM models have the same system that used in the 2005-2007 Cadillac CTS. GENERAL MOTORS: Recalls 111,136 Chevrolet, GMC Terrain & Cadillac ----------------------------------------------------------------- General Motors is recalling 111,136 Chevrolet Equinox, GMC Terrain and Cadillac SRX 2011 model year crossovers because of seat belt buckle anchors that could fail to perform as designed in a crash. No injuries are known to be involved with the condition. Certain vehicles were produced with a seat belt buckle anchor with cracks that may contribute to a fracture if the buckle is rotated in a certain way and is subject to peak seat belt loads during a crash. If the buckle anchor separates, the seat belt system will no longer restrain the occupant in a secondary impact, increasing the potential for injury. Customers will be notified on or before Jan. 18 to bring their vehicles in for dealers to rework the seat belt. The work will be performed free of charge. MICROSOFT CORP: Sued in California Over "Downgrade Rights" ---------------------------------------------------------- Courthouse News Service reports that a federal class action claims Microsoft illegally requires consumers to buy a more expensive Windows Vista or Windows 7 program, before they get "downgrade rights" to buy the Windows XP Professional operating system. A copy of the Complaint in Alvarado v. Microsoft Corp., et al., Case No. 10-cv-09951 (C.D. Calif.), is available at: http://www.courthousenews.com/2010/12/29/MicrosoftCA.pdf The Plaintiff is represented by: J. Paul Gignac, Esq. ARIAS OZZELLO & GIGNAC LLP 115 South La Cumbre Lane, Suite 300 Santa Barbara, CA 93105 Telephone: (805) 683-7400 E-mail: j.paul@aogllp.com - and - David R. Greifinger, Esq. THE LAW OFFICES OF DAVID R. GREIFINGER 1801 Ocean Park Blvd., Suite 201 Telephone: (310) 452-7923 E-mail: tracklaw@verizon.net - and - Howard A. Goldstein, Esq. LAW OFFICES OF HOWARD A. GOLDSTEIN 13701 Riverside Drive, Suite 608 Sherman Oaks, CA 91423 Telephone: (818) 981-1010 E-mail: lohag@att.net - and - Beth E. Terrell, Esq. TERRELL MARSHALL & DAUDT 3600 Fremont Avenue North Seattle, WA 98103 Telephone: (206) 816-6603 E-mail: bterrel@tmdlegal.com NATIONAL HOLDINGS: Continues to Defend "Merrill" Suit in Calif. --------------------------------------------------------------- National Holdings Corporation continues to defend a suit filed by James and Cheryl Merrill in the U.S. District Court for the Central District of California, Southern Division. In November 2009, James and Cheryl Merrill, on behalf of themselves and on behalf of all other similarly situated investors, filed a class action against National and National Securities in connection with the purchase and sale of promissory notes issued on or after Sept. 18, 2006 by one or more of Medical Capital Holdings, Inc.'s special purpose corporations, including Medical Provider Financial Corporation III, Medical Provider Financial Corporation IV, Medical Provider Funding Corporation V and Medical Provider Funding Corporation VI V. The class action has not yet been certified or decertified. The class members assert claims against NSC for violations of Section 12(a)(1) of the Securities Act of 1933, 15 U.S.C. Section 77l, and for violations of 12(a)(2) of the Securities Act, 15 U.S.C. Section 77l. The class members further assert claims against NHC under Section 15 of the Securities Act, 15 U.S.C. Section 770. The class members seek compensatory damages, rescission or a recessionary measure of damages, pre-judgment and post-judgment interest, costs and expenses, including attorneys' fees, all in undisclosed amounts. There were no significant developments in the matter as of the company's Dec. 29, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. National Holdings Corporation -- http://www.nationalsecurities.com/and http://www.vfinance.com/-- is a holding company for National Securities Corporation, vFinance Investments, Inc., EquityStation, Inc., National Asset Management, Inc., and National Insurance Corporation. National Securities, vFinance and EquityStation are broker-dealers registered with the SEC, and members of FINRA and SIPC. vFinance is also a member of the NFA. The three principal lines of business of the broker- dealers are offering full service retail brokerage; providing investment banking, merger, acquisition and advisory services to micro, small and mid-cap high growth companies; and trading securities, including making markets in over 4,000 micro and small-cap stock, distributing direct market access platforms, and providing liquidity in the United States Treasury marketplace. National Asset Management is a federally-registered investment advisor. National Insurance provides a full array of fixed insurance products to its clients. NATIONAL HOLDINGS: Continues to Defend Consolidated Suit in Texas ----------------------------------------------------------------- National Holdings Corporation continues to defend a consolidated amended class action complaint pending in the U.S. District Court for the Northern District of Texas. In December 2009, plaintiffs Robert Adams, Joseph Billitteri, Karen L. Bopp, IRA, Bussell Living Trust DTD 12/05/96, John Gilgallon, Scott Jessen, Sharon Kreindel Revocable Trust DTD 02/09/2005, Mary Merline, James Merrill, Don Ribacchi and Lewis Wilson, each on his, her or its own behalf and on behalf of all similarly situated investors, filed a Consolidated Amended Class Action Complaint in the U.S. District Court, Northern District of Texas, Dallas Division, against a number of broker-dealers, including NSC, and against a number such broker-dealers' parent companies, including NHC, in connection with a series of offerings for oil and gas investments. Each member of the class asserts claims against NSC for breach of fiduciary duty and for violations of Section 33(A)(2) of the Texas Securities Act. Each member seeks to hold NHC liable for NSC's conduct as a control person under Section 33(F)(1) of the Texas Securities Act. The class members seek compensatory damages, rescission or a recessionary measure of damages, pre-judgment interest, costs and expenses, including attorneys' fees, all in undisclosed amounts. There were no significant developments in the matter as of the company's Dec. 29, 2010, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended September 30, 2010. National Holdings Corporation -- http://www.nationalsecurities.com/and http://www.vfinance.com/-- is a holding company for National Securities Corporation, vFinance Investments, Inc., EquityStation, Inc., National Asset Management, Inc., and National Insurance Corporation. National Securities, vFinance and EquityStation are broker-dealers registered with the SEC, and members of FINRA and SIPC. vFinance is also a member of the NFA. The three principal lines of business of the broker- dealers are offering full service retail brokerage; providing investment banking, merger, acquisition and advisory services to micro, small and mid-cap high growth companies; and trading securities, including making markets in over 4,000 micro and small-cap stock, distributing direct market access platforms, and providing liquidity in the United States Treasury marketplace. National Asset Management is a federally-registered investment advisor. National Insurance provides a full array of fixed insurance products to its clients. NEW ENGLAND PATRIOTS: Review Sought for "Spygate" Class Action -------------------------------------------------------------- Boston Sports Examiner's Sean Crowe, citing the Associated Press, reports that Carl Mayer, who is a New York Jets season ticket holder, and two other lawyers have filed a petition seeking to have the U.S. Supreme Court review their class action lawsuit against the New England Patriots and Bill Belichick over the "Spygate" scandal. The lawsuit, which has been dismissed by both the US District Court and an appeals panel, seeks millions of dollars in damages. The class action suit claims that thousands of Jets fans were wronged by the Patriots and forced to endure rigged football games due to Mr. Belichick's practice of videotaping the Jets' coaches signals. The lawsuit was originally dismissed without a hearing by a federal judge in New Jersey. Upon appeal, the case was reviewed by a three judge appeals panel. When the appeals panel dismissed the lawsuit back in May, Senior Judge Robert E. Cowen, a member of the appeals panel, summed up the problem with the frivolous lawsuit rather nicely. "At best, [the plaintiff] possessed nothing more than a contractual right to a seat from which to watch an NFL game between the Jets and the Patriots, and this right was clearly honored. "The lawsuit was completely ridiculous when it was filed originally, and it's completely ridiculous now. It's nothing more than a case of a couple of fans who were sick of watching their New York Jets lose to Bill Belichick and the New England Patriots. They figured they could use "Spygate" to both make the Patriots pay and make themselves a pile of money. "This is why the entire country hates lawyers. "There is no chance the high court reviews this case. The petition is a waste of time and money, both for these lawyers and for the tax payers who are footing the bill for whomever has to go through the petition." NORWICH & PETERBOROUGH: Keydata Investors to File Class Action -------------------------------------------------------------- Ben Kendall, writing for Eastern Daily Press, reports a class action worth at least GBP18 million will next week be lodged against the Norwich & Peterborough Building Society by savers who claim they were mis-sold investment products. The building society had hoped to avoid a large-scale payout after the Financial Services Compensation Scheme announced it was prepared to reimburse eligible investors in the collapsed Keydata fund. But about 400 customers are set to snub this offer and instead pursue the N&P through the Financial Services Ombudsman (FSO). It is the latest blow to the building society which is currently under investigation by the Financial Services Authority. In recent weeks its credit rating has been down-graded and it is believed to be a takeover target for a number of rivals. Gareth Fatchett, partner at Regulatory Legal, which represents the group of claimants, said: "There is a lot of ill-feeling held by those whose savings have been caught up in this collapse as the result of bad advice by the N&P. "There are also a number of people who invested above the FSCS compensation limit. "They have looked at the FSCS route but instead decided that it would be more appropriate to pursue the N&P as they believe it is the N&P which is at fault." If the latest claim is successful, the building society, which has 500,000 members, would be forced to foot the bill from its reserves. The FSO has already ordered that the N&P repay GBP28,000 to one Norfolk couple who successfully claimed they were mis-sold products. The N&P disputes this ruling. The FSCS, which is funded by contributions from the financial services industry, had said it would consider compensation claims on the basis that Keydata brochures were misleading. About 3,100 N&P customers are thought to have savings caught up in Keydata, which went into administration in 2009 and is now being investigated by the Serious Fraud Office. Most invested between GBP5,000 and GBP100,000. The FSCS does not give compensation beyond GBP48,000. A large number of N&P customers say they did not receive a brochure and instead relied on the advice of the society's financial advisers, meaning they may not be able to claim compensation. They allege that these advisers systematically under-played the risks associated with the investment. The building society's bosses have continually insisted that there was no widespread mis-selling. Chief executive Matthew Bullock has also said that the society has the reserves to absorb a potential bill of GBP50 million resulting from the Keydata collapse. The building society could face a substantial fine from the Financial Services Authority (FSA) within weeks. It is believed the society has been ordered to carry out a section 166 report -- an independent review of its past business. N&P spokesman Alison Rolls refused to confirm whether such a report was being carried out. However, she said the society is continuing to work with the FSA and a development is expected early in the New Year. Referring to the mass complaint, she said: "We have no reason to doubt that customers received brochures, especially as this has not previously been raised as an issue before. "All customers have the right to complain to us if they are unhappy about any aspect of their sale and of course to go to the Financial Ombudsman Service if we are unable to resolve their complaint." Meanwhile ratings agency Fitch has downgraded the N&P from "stable" to "negative" -- a move which reflects the challenges the society faces in generating reasonable levels of earnings in the short to medium term but also highlights "uncertainty" over the size of a one-off cost related to Keydata. The Coventy, Nationwide and Yorkshire building societies are all said to be considering take-over attempts. Mrs. Rolls said the board had a responsibility to consider all options which it believed to be in the best in interest of society members. Carol Scholes, from Walsoken, near Wisbech, invested GBP260,000 in Keydata on the advice of the Norwich & Peterborough Building Society. The 66-year-old businesswoman made the investment in 2006 using the proceeds of the sale of a grocery store which she had built up over 15 years. She planned to use the money to provide for her retirement and, if Keydata had not collapsed, her investment would be due to mature early in 2011. "I was a totally unsophisticated investor," she said. "My money was just sitting in an account and I decided to go to the Wisbech branch of the N&P because I was looking for face-to-face interaction with somebody I could trust. "I specifically asked for an investment which involved no risk or low risk. Had the risk associated with Keydata been communicated to me, I would not have gone near it." About 80% of her life savings were with Keydata and she was also dependent on the bond to provide about 90% of her retirement income. The sum invested was greater than the protection offered by the Financial Services Compensation Scheme. It is also unusual for advisers to recommend that such a large proportion of a person's savings be placed in a single investment. Mrs. Scholes is among those pursuing a complaint through the Financial Services Ombudsman. She said: "My son is expecting his first baby and I would have used some of this money to support him. As things stand I don't know how I'm going to help him. "I feel let down and would be reluctant to invest my money in this way again. I certainly would never deal with the N&P as this has destroyed any trust I had in them." PIMCO FUNDS: Settles Suit Over 2005 Futures Contract for $92MM -------------------------------------------------------------- PIMCO and PIMCO Funds on Dec. 30 announced the proposed settlement of a class action lawsuit, Kohen et al. v. PIMCO and PIMCO Funds, originally filed in 2005 challenging certain trades by PIMCO in the June 2005 10-year futures contract. PIMCO will make a payment of approximately $92 million to the plaintiff class plus plaintiffs' attorneys' fees and expenses. The settlement agreement must be filed and approved by the U.S. District Court for the Northern District of Illinois before it becomes effective. The settlement is being borne by PIMCO, not the PIMCO Funds or any client. If approved by the Court, the settlement is expected to be finalized in 2011. Additional case background: The plaintiffs, a class of all short- sellers in the above-referenced contract, challenged certain PIMCO trading under the June 2005 contract, including the timing of liquidations, the taking of a substantial delivery and the purchasing of the cheapest-to-deliver notes. PIMCO's position is that all such trades were properly designed to secure best execution for its clients; that by lending cheapest- to-deliver notes back into the market it eliminated any concerns; and that all parties making delivery did so using cheapest-to- deliver notes. Thus, the parties strongly disagreed about whether PIMCO was entitled to protect its clients to the extent that it did and PIMCO and PIMCO Funds deny liability. The parties have resolved this disagreement through the present settlement, which resolves all of the class claims against PIMCO and PIMCO Funds. PIMCO is a global investment management firm that was founded in Southern California in 1971. The firm serves an array of clients and manages retirement and other assets that reach more than 8 million people in the U.S. and millions more around the world. Its clients include state, municipal, union and private sector pension and retirement plans, educational, foundations, endowments, philanthropic and healthcare institutions, individual and investment saving accounts, public sector reserve management and other public entities in North and South America, Europe, the Middle East and Asia. PIMCO has more than 1,300 employees. In addition to its headquarters in Newport Beach, California, the firm has offices in Amsterdam, Hong Kong, London, Munich, New York City, Singapore, Sydney, Tokyo, Toronto and Zurich. PIMCO is owned by Allianz S.E., a diversified financial services provider. STERN & STERN: Court Certifies Foreclosure Class Action ------------------------------------------------------- Diane C. Lade, writing for the Sun Sentinel, reports a state appeal court in West Palm Beach has ruled a class-action lawsuit claiming Plantation attorney David J. Stern charged excessive fees to homeowners fighting their foreclosures can move forward, three years after it was first filed. The 4th District Court of Appeal's opinion upheld an earlier decision by Palm Beach Circuit Judge Thomas Barkdull. Judge Barkdull had granted class action certification to a suit brought by Boynton Beach electrician Loren Banner against his lender, Wells Fargo Bank, Stern and Stern's firm, which handled Wells Fargo's foreclosure work. The class includes Florida property owners facing foreclosure by Wells Fargo who received reinstatement letters from Stern's office between January 2003 and February 2009. They claim they were charged excessive fees for title searches and examinations, being served foreclosure papers, legal work -- and in some cases, were billed for expenses and mortgage payments not yet due. "These are people who wanted to save their homes," said West Palm Beach attorney Louis Silber, who along with attorney Kirk Friedland is representing the homeowners. "The improper charges made it much more difficult for them to reinstate their mortgages." Jeffrey Tew, the Miami attorney representing Stern, could not be reached for comment on Dec. 29 despite several attempts by phone and e-mail. The suit claims Stern's foreclosure practices violated state laws protecting consumers from unfair debt-collection methods and deceptive trade. Stern's attorneys had appealed Judge Barkdull's certification, arguing circumstances would be different for homeowners whose mortgages had been reinstated and those who lost their property. Mr. Silber said between 1,500 and 2,000 borrowers could join the suit. The class is limited to those with Wells Fargo loans. But some of the practices that the suit alleges generate excessive fees are common to most large foreclosure law firms, not just Stern's. "We think this will have an across-the-board affect," Mr. Silber said. UNITED STATES: Iowa Republicans Argue Over Pigford Settlement ------------------------------------------------------------- Tyler Kingkade, writing for Iowa State Daily, reports the Pigford and Cobbell class action settlements were passed in legislation that would provide funding to settle African American farmers' and Native Americans' lawsuits against the federal government for past discrimination. Thousands of farmers in the cases were denied to have their cases heard. It passed the Senate in the previous session and the House passed it Nov. 30 to move on to President Obama. House Speaker Nancy Pelosi called it "closing the door on an old injustice," adding, "We recognize that there are other discrimination cases that remain to be resolved, including women, Hispanic and Native American farmers. It is my hope these cases will come to a similarly just conclusion." Rep. Steve King, R-Iowa, offered an amendment to halt funding for the Pigford settlement, but was blocked by the Rules Committee. Rep. King said it's ripe with fraud, and spoke of the lawsuit being equivalent of their "40 acres and a mule," referencing to the Civil War era practice of providing essentials to some former slaves. On the floor of the House he used the example of a black man who leaves the farm for the city, gets in trouble and comes home to try to stake a claim in his father's farm to take part in "slavery reparations." However, the USDA addressed the concerns and said out of the 15,000 cases, only three were found to be fraudulent. Rep. King still wants the next Congress, when seated this month, to investigate potential fraud in the Pigford cases. "This means that people who have never farmed and people who have never been discriminated against by the USDA will be receiving tens of thousands of dollars in cash and debt relief simply for having filed a false claim," Mr. King said. Rep. Tom Latham, R-Iowa, who represents Ames, also voted against the measure. Rep. Leonard Boswell, D-Iowa; Rep. Dave Loebsack, D- Iowa; Rep. Bruce Braley, D-Iowa; and Sen. Chuck Grassley, R-Iowa, voted in favor, and Sen. Grassley praised the House's passing of the bill. "I had hoped to resolve these civil rights issues through the administrative process," Sen. Grassley said. "I knew that if we had to pass legislation, it would take years. As we've seen, the legislative process did take years, but these farmers who were wronged by our own federal government agency will now, once President Obama signs the bill, finally be able to plead their case in front of a neutral party and be judged on the merits." Approximately 75,000 black farmers filed their claims of discrimination through the Pigford consent decree process past the deadline for their claims to be evaluated on the merits. As a result, thousands of victims of discrimination continue to be denied an opportunity even to have their claims heard. Sen. Grassley worked to put in place a process where these farmers can have the opportunity to plead their case based on the merits. He introduced legislation in 2007 and pressed for it to be included in the 2008 farm bill. The Pigford II settlement includes several substantial changes from Pigford I in order to better fight fraud. WAL-MART STORES: Blumenthal Discusses Gender Bias Suit ------------------------------------------------------ According to an article provided by Blumenthal, Nordrehaug & Bhowmik, the U.S. Supreme Court's ultimate resolution of the gender bias suit against Wal-Mart could have a wide-ranging impact on the way that victims of discrimination are able to fight back against companies. Because of the size of the potential pay-outs of class actions, many companies or defendants of class actions lawsuits are open to settlement. As reported by the Class Action Reporter on December 9, 2010, the Supreme Court agreed to review the employment discrimination class action against Wal-Mart. Blumenthal Nordrehaug notes that at issue in the Wal-Mart appeal is whether or not the discrimination case can proceed as a class action lawsuit, not whether or not the discrimination occurred. Once the court determines whether the case can move forward as a class action lawsuit, the discrimination case(s) can be heard. The class action lawsuit for discrimination against Wal-Mart was originally certified under a standard used for seeking injunctive relief and not monetary damages. The standard used for injunctive relief has a lower threshold for class certification than the standard for seeking monetary damages. Wal-Mart contends that to move forward, the class action should meet this stricter standard. In her dissent to the Ninth Circuit Court of Appeals ruling that upheld the class certification, Judge Sandra Ikuta stated: "never before has such a low bar been set for certifying such a gargantuan class." Standards for a federal class action lawsuit dictate that the members of the class action raise a common question and that the interests of the members of the class are adequately protected by the named plaintiffs of the lawsuit. Wal-Mart argues that any discrimination was isolated occurred under different managers -- men and women alike -- and that the claims of all of the women involved would be too varied because they held different positions within the Wal-Mart company structure and these positions were held all across the county. Proponents of certifying this class action lawsuit contend that Wal-Mart is fighting the certification of the class because of the potential number of members of the class. Writing in concurrence of the Ninth Circuit's decision, Judge Susan P. Graber notes that: "Certification does not become an abuse of discretion merely because the class has 500,000 members." The majority in the Ninth Circuit's decision stated that the claims of the women were "similar enough" that a class action was "efficient and appropriate," as opposed to "clogging the federal courts" with all of the individual lawsuits of the class members. Blumenthal Nordrehaug notes that if aggrieved workers or victims of discrimination at a company can more easily band together for form a class action lawsuit, that group may be able to reach a settlement to benefit the members of the class more easily. If the threshold remains high for class certification, many victims of discrimination may never recover for the wrongs done to them, as the cost of an individual lawsuit against a large company may be prohibitive. ********* 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 2011. 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 * * *