/raid1/www/Hosts/bankrupt/CAR_Public/110131.mbx
C L A S S A C T I O N R E P O R T E R
Monday, January 31, 2011, Vol. 13, No. 21
Headlines
AMERICAN BUSINESS: Locklear Wants Default Judgment Hearing Moved
BP EXPLORATION: Faces New Consolidated RICO Class Action
COMVERSE TECHNOLOGY: $112.5 Million Settlement Payment Due Nov. 15
COMVERSE TECHNOLOGY: Still Defending Israeli Optionholder Suits
COMVERSE TECHNOLOGY: Ulticom Shareholder Class Action Dismissed
FOOT LOCKER: Appellate Court Affirms Q&W Non-Disqualification
FORCE PROTECTION: Settles Shareholder Class Action for $24-Mil.
FORT WAYNE, IN: Sheriff Wants Judge to Approve Class Action
GENZYME CORP: Harwood Feffer Amends Class Action Complaint
GROUPON INC: Sued Over Illegal Sale of Gift Certificates
HIGHLANDS COUNTY, FL: App. Ct. Affirms Dismissal of Tacy Suit
INTERNATIONAL COFFEE: Appellate Ct. Affirms Ruling on Tip Pooling
JOHN B. SANFILIPPO: Defends "Wage and Hour" Lawsuit in Illinois
LAND OF NOD: Recalls 300 Rosebud Drop-Side Cribs
LEBANON, PA: Sued Over Excessive Truancy Fines
LIVE NATION: Settles Class Action Over Ticketmaster Fees
LOS ANGELES, CA: Judge Certifies Prosecutors' Class Action
R.J. REYNOLDS: Kirkland Tobacco Trial to Take Three Weeks
REGENCE BCBS: ERISAclaim.com Webinars to Examine Court Ruling
SMART TECHNOLOGIES: Files Securities Fraud Class Action
SONOMA VALLEY: Shareholders Mull Class Action
TENNESSEE: New DUI Law Unconstitutional, Class Action Claims
TEXAS: Six Officials Face Class Action Over State Living Centers
TOYOTA MOTOR: Settles Canadian Export Conspiracy Class Action
TOYOTA MOTOR: Recalls Lexus Cars Over Fuel Pressure Sensors
TOYOTA MOTOR: Continues to Defend "Sudden Acceleration" Lawsuits
TOYOTA MOTOR: California Bondholder Suit Dismissed With Prejudice
UNITED FINANCIAL: Law Firm Files Unfair Practices Class Action
UNITED STATES: April 20 Indian Trust Settlement Opt-Out Deadline
* Increasing Employment-Related Suits May Hurt Workers
* Investor & Consumer Class Actions in Australia to Increase
*********
AMERICAN BUSINESS: Locklear Wants Default Judgment Hearing Moved
----------------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports
the Wood River electric company that won a default judgment in a
proposed class action over faxed advertisements is asking to push
back a hearing that would determine how much money it has won.
On Jan. 14, plaintiff Locklear Electric filed its move to continue
the Feb. 4 hearing on damages.
The hearing has now been set for 9:00 a.m. on Feb. 4.
According to its motion, Locklear's attorney Lanny Darr will be in
Miami that day at the American Association for Justice Winter
Convention.
Locklear won the default judgment against defendants American
Business Lending and Christopher Parks last year.
Locklear claims that the defendants violated federal law when they
faxed unwanted ads to the company and others like it.
The suit is one of a number of faxed ad class actions Locklear has
spearheaded in recent years in both Madison and St. Clair
counties.
Neither Mr. Parks nor American Business Lending has entered an
appearance in the case.
Madison County Circuit Judge Andreas Matoesian presides.
The case is Madison case number 08-L-1131.
BP EXPLORATION: Faces New Consolidated RICO Class Action
--------------------------------------------------------
Sabrina Canfield at Courthouse News Service reports that a newly
consolidated RICO class action claims BP's "cocksure behavior,"
its history of safety violations, disregard for federal
regulations and failure to inspect and maintain equipment all
contributed to the explosion of the Deepwater Horizon. The class
claims that BP conducted itself with an "underlying 'unconscious
mind,'" and that its practice of putting profit before safety
created the catastrophe.
The federal complaint adds that the relative newness of offshore
drilling, the difficult geography of the Macondo well site, and
the fact that BP was drilling at depths that exceeded its federal
permit also contributed to the disaster.
The class claims the oil giant gambled with worker and
environmental safety by cutting corners, misrepresenting
intentions, using shoddy material and failing to run crucial
safety inspections.
Ultimately, all those factors combined with the No. 1 cause of the
disaster: that for BP, profit came before safety, according to the
91-page complaint.
The class claims BP was behind schedule and was spending $1
million a day to keep drilling the difficult Macondo well when the
Deepwater Horizon exploded.
"Despite this history of catastrophes and close calls, BP has been
chronically unable or unwilling to learn from its many mistakes or
to give up its regular way of doing business," the complaint
states. "The company's dismal safety record and disregard for
prudent risk management are the results of a corporate safety
culture that has been repeatedly called into question by
government regulators."
The class action, released on Jan. 24, was consolidated under U.S.
District Judge Carl J. Barbier's court as part of the oil spill
multidistrict litigation. More than 300 oil spill-related
lawsuits pending in Judge Barbier's court are to be divided and
consolidated into "bundles," depending on their causes of action.
On April 20, 2010, BP workers aboard the Deepwater Horizon
drilling rig lost control of the subsea well they had almost
completed. When highly pressurized hydrocarbons leaked into the
well, the vessel's emergency equipment failed to stop the oil and
gas from blowing out of the well, which led to explosions and a
fire on the Deepwater Horizon, and ultimately to the sinking of
the vessel. Eleven people died and gas and oil gushed into the
water unchecked for 12 weeks.
"Meanwhile, BP downplayed the severity of the spill and was,
contrary to their prior claims to regulators, unprepared for the
massive cleanup effort required," according to the complaint.
On May 21, President Obama established the National Oil Spill
Commission on the BP Horizon Oil Spill and Offshore Drilling, to
examine facts and circumstances surrounding the explosion.
"A key finding of the commission was that BP repeatedly placed
profits over safety, implementing procedures that greatly
increased risk, primarily in order to avoid the expense of delay,"
according to the complaint.
According to the chairman of the investigation, "All the evidence
of BP's misguided priorities and imprudent decisions regarding the
Macondo well and the Deepwater Horizon described above is part of
a pattern of cocksure behavior -- a 'culture of complacency,'"
according to the complaint.
Deepwater offshore drilling is an "immensely complex, technical
process, and a relatively new one that has only developed over the
last five years," the complaint states.
In emails weeks before the blowout, BP employees referred to the
Macondo well as a "crazy," "nightmare" well, and indicated a sense
of resignation about safety procedures, the class claims. It
cites an email from BP official Brett Cocales in which he admits
using less equipment than was necessary: "'who cares, it's done,
end of story, will probably be fine.'"
"The risk of a blowout is one of the most dangerous but common
risks in deepwater drilling," the class says.
BP had a Mineral Management Service permit to drill at 19,650
feet.
But "After the spill, a BP crewman admitted that this depth had
been misrepresented to MMS, and that BP had in fact been drilling
in excess of 22,000 feet, in violation of its permit," according
to the complaint.
"At depths almost 3.5 miles below the sea floor, the pressures
within and strengths of the various formation layers the Deepwater
Horizon was drilling through varied widely and changed often,
requiring constant adjustments to drilling fluid density and other
factors. In some places, the subsea rock formations were so
brittle that they fractured, letting gallons of expensive drilling
mud escape into the cracked and porous rock around the drill," the
complaint states.
"At the time of the disaster, BP was certainly aware that in
addition to increasing the risk of blowouts, deep-sea drilling
also increases the risk of BOP [blowout preventer] failure. BP
was also aware that the industry and government had major concerns
about the reliability of BOPs like the one installed on the
Deepwater Horizon. A 2004 study by federal regulators . . .
showed that BOPs may not function in deep-water drilling
environments because of the increased force needed to pinch and
cut the stronger pipes used in deep-water drilling. Only three of
74 vessels studied in 2004 had BOPs strong enough to squeeze off
and cut the pipe at the water pressures present at the equipment's
maximum depth."
The class claims that BP used materials and specifications that
its officials knew were inadequate.
In one example, concerning the number of centralizers used on the
last piece of casing pipe, the complaint states that despite
Halliburton's suggestion that BP use no less than 21 centralizers
to ensure a secure cement job, BP officials decided to make do
with six.
Centralizers ensure that the casing pipe is centered in the well
bore; if the pipe is not centered, the cement placed around it may
fail to create a secure seal against the highly-pressurized
hydrocarbons surrounding the well.
According to BP documents, additional centralizers were available
but BP didn't want to wait for them.
"In the same email that had recognized the risks of proceeding
with insufficient centralizers, BP official Brett Cocales shrugged
off using only six, flippantly concluding, 'who cares, it's done,
end of story, will probably be fine,'" according to the complaint.
BP reportedly was paying Transocean $500,000 a day to lease the
Deepwater Horizon.
BP had planned for drilling to take 51 days and to cost around $96
million.
The class claims that BP knew that Transocean, the owner of the
Deepwater Horizon rig, had a horrible safety record and that the
Deepwater Horizon was in need of an extensive revamp, but BP was
too impatient to get going with exploration to make Transocean
service its rig.
"In September 2009, a BP audit team concluded an audit of
Deepwater Horizon, and found excessive overdue maintenance
totaling 390 jobs and 3,545 man hours. Many were high priority.
Thirty-one included findings that were related to well control
system maintenance, and six related to BOP maintenance. All
findings were outstanding as of December 2009," according to the
complaint.
Also before the spill, the class says, "BP was on notice of
significant problems related to the Deepwater Horizon's equipment
and maintenance, including problems with the vessel's BOP,
electronic alarm systems, ballast systems used to stabilize the
vessel in the water, and other significant deficiencies that could
'lead to loss of life, serious injury or environmental damage as a
result of inadequate use and/or failure of equipment.'"
The Macondo well's blowout preventer had several emergency
activation methods. None was able to activate the BOP to seal the
well once it started to blow because the blowout preventer, as BP
knew, was not in good working order. "BP knew of these problems
well before the spill, but did nothing to ensure that the BOP was
in compliance with federal regulations," according to the
complaint.
The enormous complaint includes a Steering Committee of 15 law
offices and a 5-office RICO Complaint Master Working Group.
A copy of the Consolidated Class Action RICO Complaint in In Re:
Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of
Mexico, on April 20, 2010, in Accordance with PTO NO. 11 CMO No. 1
Section III (B2), Case No. 10-md-02179 (E.D. La.) (Barbier, J.),
is available at:
http://www.courthousenews.com/2011/01/26/BPConsolidated.pdf
The Plaintiffs are represented by:
Stephen J. Herman, Esq.
HERMAN HERMAN KATZ & COTLAR LLP
820 O'Keefe Avenue
New Orleans, LA 70113
Telephone: (504) 581-4892
E-mail: sherman@hhkc.com
- and -
James Parkerson Roy, Esq.
DOMENGEAUX WRIGHT ROY & EDWARDS LLC
556 Jefferson Street, Suite 500
Lafayette, LA 70501
Telephone: (337) 233-3033
E-mail: jimr@wrightroy.com
- and -
G. Robert Blakey, Esq.
NOTRE DAME LAW SCHOOL
Notre Dame, IN 36556
Telephone: (574) 631-5717
Email: g.r.blakey.1@nd.edu
The Plaintiffs' Steering Committee includes:
Brian H. Barr, Esq.
LEVIN, PAPANTONIO, THOMAS, MITCHELL,
ECHSNER & PROCTOR, PA
316 South Baylen St., Suite 600
Pensacola, FL 32502-5996
Telephone: (850) 435-7045
E-mail: bbarr@levinlaw.com
- and -
Robin L. Greenwald, Esq.
WEITZ & LUXENBERG, PC
700 Broadway
New York, NY 10003
Telephone: (212) 558-5802
E-mail: rgreenwald@weitzlux.com
- and -
Jeffrey A. Breit, Esq.
BREIT DRESCHER & IMPREVENTO
999 Waterside Drive, Suite 1000
Norfolk, VA 23510
Telephone: (757) 670-3888
E-mail: jbreit@bdbmail.com
- and -
Rhon E. Jones, Esq.
BEASLEY, ALLEN, CROW, METHVIN, PORTIS & MILES, P. C.
218 Commerce St., P.O. Box 4160
Montgomery, AL 36104
Telephone: (334) 269-2343
E-mail: rhon.jones@beasleyallen.com
- and -
Elizabeth J. Cabraser, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
E-mail: ecabraser@lchb.com
- and -
Matthew E. Lundy, Esq.
LUNDY, LUNDY, SOILEAU & SOUTH, LLP
501 Broad Street
Lake Charles, LA 70601
Telephone: (337) 439-0707
E-mail: mlundy@lundylawllp.com
- and -
Philip F. Cossich, Jr., Esq.
COSSICH, SUMICH, PARSIOLA & TAYLOR
8397 Highway 23, Suite 100
Belle Chasse, LA 70037
Telephone: (504) 394-9000
E-mail: pcossich@cossichlaw.com
- and -
Michael C. Palmintier, Esq.
deGRAVELLES, PALMINTIER, HOLTHAUS & FRUGE'
618 Main Street
Baton Rouge, LA 70801-1910
Telephone: (225) 344-3735
E-mail: mpalmintier@dphf-law.com
- and -
Robert T. Cunningham, Esq.
CUNNINGHAM BOUNDS, LLC
1601 Dauphin Street, P. O. Box 66705
Mobile, AL 36660
Telephone: (251) 471-6191
E-mail: rtc@cunninghambounds.com
- and -
Paul M. Sterbcow, Esq.
LEWIS, KULLMAN, STERBCOW & ABRAMSON
601 Poydras Street, Suite 2615
New Orleans, LA 70130
Telephone: (504) 588-1500
E-mail: sterbcow@lksalaw.com
- and -
Alphonso Michael "Mike" Espy, Esq.
MORGAN & MORGAN, P.A.
188 East Capitol Street, Suite 777
Jackson, MS 39201
Telephone: (601) 949-3388
E-mail: mike@mikespy.com
- and -
Scott Summy, Esq.
BARON & BUDD, P.C.
3102 Oak Lawn Avenue, Suite 1100
Dallas, TX 75219
Telephone: (214) 521-3605
E-mail: ssummy@baronbudd.com
- and -
Calvin C. Fayard, Jr., Esq.
FAYARD & HONEYCUTT
519 Florida Avenue, SW
Denham Springs, LA 70726
Telephone: (225) 664-4193
E-mail: calvinfayard@fayardlaw.com
- and -
Mikal C. Watts (PSC), Esq.
WATTS GUERRA CRAFT, LLP
Four Dominion Drive, Building 3, Suite 100
San Antonio, TX 78257
Telephone: (210) 447-0500
E-mail: mcwatts@wgclawfirm.com
- and -
Ervin A. Gonzalez, Esq.
COLSON HICKS EIDSON
255 Alhambra Circle, Penthouse
Coral Gables, FL 33134
Telephone: (305) 476-7400
E-mail: ervin@colson.com
The RICO Master Complaint Working Group includes:
Hiram Eastland, Esq.
EASTLAND LAW OFFICES PLLC
307 Cotton Street
Greenwood, MS 38930
Telephone: (662) 453-1227
E-mail: eastlandlaw@bellsouth.net
- and -
Wanda J. Edwards, Esq.
FAYARD & HONEYCUTT, APC
519 Florida Avenue SW
Denham Springs, LA 70726
Telephone: (225) 664-4193
E-mail: wandaedwards@fayardlaw.com
- and -
Keith D. Jones, Esq.
8480 Bluebonnet Blvd., Suite F
Baton Rouge, LA 70810
Telephone: (225) 763-6900
E-mail: keith@kjones-law.com
- and -
W. B. Markovits, Esq.
WAITE, SCHNEIDER, BAYLESS & CHESLEY CO., L.P.A.
1513 Fourth & Vine Tower
1 West Fourth Street
Cincinnati, OH 45202
Telephone: (513) 621-0267
E-mail: billmarkovits@wsbclaw.com
- and -
Peter Prieto, Esq.
PODHURST ORSECK P.A.
25 West Flagler Street, Suite 800
Miami, FL 33130
Telephone: (305) 358-2800
E-mail: PPrieto@podhurst.com
COMVERSE TECHNOLOGY: $112.5 Million Settlement Payment Due Nov. 15
------------------------------------------------------------------
Comverse Technology, Inc., can use shares of common stock to pay
$82.5 million of a $112.5 million obligation under a shareholder
class action settlement, according to a Jan. 25, 2011 Form 10-K
filed by the Company with the Securities and Exchange Commission
for the fiscal year ended January 31, 2010.
On December 16, 2009 and December 17, 2009, CTI entered into
agreements to settle consolidated shareholder class action and
consolidated shareholder derivative actions, respectively. The
agreement to settle the consolidated shareholder class action was
amended on June 19, 2010. Pursuant to the amendment, CTI agreed to
waive certain rights to terminate the settlement in exchange for a
deferral of the timing of scheduled payments of the settlement
consideration and the Opt-out Credit in respect of a portion of
the settlement funds that would have been payable to a class
member that elected not to participate in and be bound by the
settlement. As part of the settlement of the consolidated
shareholder class action, as amended, CTI agreed to make payments
to a class action settlement fund in the aggregate amount of up to
$165.0 million that were paid or remain payable as follows:
* $1.0 million that was paid following the signing of the
settlement agreement in December 2009;
* $17.9 million that was paid in July 2010 (representing an
agreed $21.5 million payment less a holdback of $3.6 million
in respect of the anticipated Opt-out Credit, which holdback
is required to be paid by CTI if the Opt-out Credit is less);
* $30.0 million payable on or before May 15, 2011; and
* $112.5 million (less the amount, if any, by which the Opt-out
Credit exceeds the holdback) payable on or before
November 15, 2011.
The $30.0 million due on or before May 15, 2011 and $82.5 million
of the $112.5 million due on or before November 15, 2011 are
payable in cash or, at CTI's election, in shares of CTI's common
stock valued using the ten-day average of the closing prices of
CTI's common stock prior to such election, provided that CTI
becomes current in its periodic reporting obligations under the
federal securities laws and its common stock is listed on a
national securities exchange on or before the fifteenth trading
day preceding the applicable payment date, and that the shares
delivered at any one time have an aggregate value of at least
$27.5 million. CTI expects to pay the $30.0 million payment due on
or before May 15, 2011 in cash. If CTI receives net cash proceeds
from the sale of certain ARS held by it in an aggregate amount in
excess of $50.0 million, CTI is required to use $50.0 million of
such proceeds to prepay the settlement amounts and, if CTI
receives net cash proceeds from the sale of such securities in an
aggregate amount in excess of $100.0 million, CTI is required to
use an additional $50.0 million of such proceeds to prepay the
settlement amounts. In addition, CTI granted a security interest
for the benefit of the plaintiff class in the account in which CTI
holds its ARS (other than ARS that were held in an account with
UBS) and the proceeds from any sales thereof, restricting CTI's
ability to use proceeds from sales of such ARS until the amounts
payable under the settlement agreement are paid in full. As part
of the settlement of the shareholder derivative actions, CTI paid,
on October 21, 2010, $9.4 million to cover the legal fees and
expenses of the plaintiffs. In September 2010, CTI received
insurance proceeds of $16.5 million under its directors' and
officers' insurance policies in connection with the settlements of
the shareholder derivative actions and the consolidated
shareholder class action. The agreement to settle the consolidated
shareholder class action, as amended, was approved by the court in
which such action was pending on June 23, 2010. The agreement to
settle the federal and state derivative actions was approved by
the courts in which such actions were pending on July 1, 2010 and
September 23, 2010, respectively.
CTI expects to fund any cash payments it makes under the
settlement of the consolidated shareholder class action using cash
on hand or, if insufficient, from proceeds of the sale of
investments, including ARS and new borrowings, cash generated from
asset divestitures or proceeds from the issuance of equity or debt
securities.
COMVERSE TECHNOLOGY: Still Defending Israeli Optionholder Suits
---------------------------------------------------------------
Comverse Technology, Inc., continues to defend itself in four
potential class action litigations in the State of Israel
involving claims to recover damages incurred as a result of
purported negligence or breach of contract that allegedly
prevented certain current or former employees from exercising
certain stock options, according to a Jan. 25, 2011 Form 10-K
filed by the Company with the Securities and Exchange Commission
for the fiscal year ended January 31, 2010.
Two cases were filed in the Tel Aviv District Court against CTI on
March 26, 2009, by plaintiffs Katriel (a former Comverse Ltd.
employee) and Deutsch (a former Verint Systems Ltd. employee). The
Katriel case (Case Number 1334/09) and the Deutsch case (Case
Number 1335/09) both seek to approve class actions to recover
damages that are claimed to have been incurred as a result of
CTI's negligence in reporting and filing its financial statements,
which allegedly prevented the exercise of certain stock options by
certain employees and former employees. By stipulation of the
parties, on September 30, 2009, the court ordered that these
cases, including all claims against CTI in Israel and the motion
to approve the class action, be stayed until resolution of the
actions pending in the United States regarding stock option
accounting, without prejudice to the parties' ability to
investigate and assert the unique facts, claims and defenses in
these cases. To date, the stay has not yet been lifted.
Two cases were also filed in the Tel Aviv Labor Court by
plaintiffs Katriel and Deutsch, and both seek to approve class
actions to recover damages that are claimed to have been incurred
as a result of breached employment contracts, which allegedly
prevented the exercise of certain CTI stock options by certain
employees and former employees. The Katriel litigation (Case
Number 3444/09) was filed on March 16, 2009, against Comverse
Ltd., and the Deutsch litigation (Case Number 4186/09) was filed
on March 26, 2009, against Verint Systems Ltd. The Tel Aviv Labor
Court has ruled that it lacks jurisdiction, and both cases have
been transferred to the Tel Aviv District Court. The Katriel case
has been consolidated with the Katriel case filed in the Tel Aviv
District Court (Case Number 1334/09) and is subject to the stay
discussed above. The Deutsch case has been scheduled for a
preliminary hearing in the Tel Aviv District Court in October
2011.
COMVERSE TECHNOLOGY: Ulticom Shareholder Class Action Dismissed
---------------------------------------------------------------
Comverse Technology, Inc.'s majority-owned subsidiary, Ulticom,
Inc., has been dismissed from a class action lawsuit filed by a
shareholder.
On October 14, 2010, a purported shareholder class action was
filed in the Superior Court of New Jersey, Chancery Division,
Burlington County, entitled Greenbaum v. Ulticom, Inc. et al., No.
c 86-10, against Ulticom, Platinum Equity and certain of its
affiliates, and Ulticom's board of directors. The complaint
alleged that Ulticom's directors breached their fiduciary duties
by failing to ensure that Ulticom's shareholders receive maximum
value for their shares in connection with the proposed acquisition
of Ulticom by Platinum Equity and that Platinum Equity aided and
abetted such breaches of fiduciary duty. The action sought, among
other things, injunctive relief, rescission and attorneys' fees
and costs. On December 16, 2010, the plaintiff filed a Notice of
Voluntary Dismissal to terminate the action without prejudice,
with each party to bear its own expenses, according to Comverse's
Jan. 25, 2011 Form 10-K filed with the Securities and Exchange
Commission for the fiscal year ended January 31, 2010.
FOOT LOCKER: Appellate Court Affirms Q&W Non-Disqualification
-------------------------------------------------------------
The U.S. Court of Appeals of California for the First District
ruled in a consolidated class actions appeal that the filing of a
second action against Foot Locker Retail, Inc., has not created a
conflict of interest requiring counsel's disqualification.
An initial class action complaint was filed in November 2005 by
Jatinder Kullar in the San Francisco Superior Court on behalf of
Foot Locker employees who were required to spend on their
mandatory work uniforms without reimbursement. The complaint was
amended to assert claims on behalf of employees who were subjected
to security searches for which they were not compensated. A
second class action complaint was filed on March 22, 2007 by
Crystal Echeverria in the Alameda County Superior Court, alleging
that the company failed to pay its employees compensation for work
without meal breaks and wages due terminated employees.
In early 2007, parties to the Kullar Class Action reached a
settlement, whereby Foot Locker agreed to pay up to a maximum of
$2 million in settlement of all claims. The trial court
preliminarily approved the settlement in June 2007. However, in
October 2008, the California Appellate Court vacated the trial
court's approval of the Kullar Settlement in light of the appeal
prosecuted by the law firm of Qualls & Workman, LLP on behalf of
three objectors to the settlement, Crystal Echeverria, John
Kissinger and Nichole Payton.
On April 15, 2009, Ms. Echeverria and the two other objectors
filed another action in the San Francisco Superior Court,
asserting the same claims in the Alameda action -- the Echeverria
II class action.
On October 22, 2009, the trial court, upon additional review,
granted final approval of the Kullar class settlement.
Subsequently, Ms. Echeverria dismissed the Alameda action and in
November 2009, the San Francisco court lifted the stay in the
Echeverria II action.
On December 2, Foot Locker filed motions to disqualify Q&W as
counsel in both the Kullar and Echeverria II class actions, citing
conflict of interest. The trial court denied both
disqualification motions.
In a January 18, 2011 ruling, the Appellate Court opined that
several reasons exist for which Q&W's participation in both class
actions does not violate the proscription against representation
of clients with adverse interests. Initially, no class has yet
been certified in Echeverria II and thus, no attorney-client
relationship has yet arisen between Q&W and the members of the
putative class, the Appellate Court held.
Moreover, the Appellate Court added, assuming that Q&W assumed
some fiduciary obligations to members of the putative class they
seek to represent, no authority has been cited suggesting that
those obligations preclude the attorneys from urging that a
proposed settlement in related litigation is not in the best
interests of the class.
"There is no suggestion that Q&W has obtained any confidential
information from the putative class members who favor the [Kullar]
settlement, nor have the attorneys engaged in any conduct
displaying disloyalty to any of the putative class members," the
Appellate Court stated.
In this light, the order denying the motion to disqualify counsel
in both cases is affirmed, the Appellate Court ruled.
A copy of the Appellate Court's January 18, 2011 order is
available at http://is.gd/Oferfafrom Leagle.com.
FORCE PROTECTION: Settles Shareholder Class Action for $24-Mil.
---------------------------------------------------------------
Allyson Bird, writing for The Post and Courier, reports thousands
of investors who are part of a class-action lawsuit against
armored vehicle maker Force Protection Inc. will share a
$24 million settlement approved on Jan. 25 in federal court.
Investors filed the complaint against the company more than two
years ago. Among their allegations, they said top-level
executives who made tens of millions of dollars in stock trades
before resigning failed to warn shareholders about delays in
delivering vehicles or about a flawed accounting system.
Now under new management, Ladson-based Force Protection admitted
no wrongdoing in agreeing to the settlement. Most of the cost
will be covered by insurance, the company has said.
Eleni Roumel, a local attorney representing the defense
contractor, said investors who are signed on to the case will
learn how much they will receive after a hearing set for July.
"It's impossible to tell until all the claims have come in,"
Ms. Roumel said. "That's because the amount is split among
shareholders who made claims."
Jeffrey Block, an attorney representing the shareholders, said his
firm sent notices to 61,000 potential class members and has
received 3,000 claims so far.
The lawsuit alleged that the shortcomings spelled out in the
lawsuit affected Force Protection's ability to win Defense
Department contracts, while at the same time top executives
profited by selling stock.
For example, a former Force Protection chairman, Frank Kavanaugh,
sold more than $64 million worth of shares before stepping down in
June 2007. Gordon McGilton, the company's ex-president who left
in January 2008, sold shares worth more than $23 million,
according to the complaint. But instead of disclosing information
about the difficulties.
Force Protection was facing, executives reassured investors about
their confidence in the company's future. As a result, the share
price continued to trade at a high valuation, according to the
complaint.
The March 2008 lawsuit followed nearly a year of dramatic decline
in the stock from a peak in May 2007 of more than $30 to less than
$3 a share. It closed at $5.51 on Jan. 25.
The company's accounting problems came to light when Force
Protection officials announced that they would belatedly file an
annual report for 2007 and would restate earnings for some
previous reporting periods. Officials blamed the problem on
accounting errors.
A government report found that Force Protection had missed 98
percent of its vehicle delivery deadlines, according to the
lawsuit, which also said the lack of accounting oversight
jeopardized the company's ability to win future contracts for is
blast-resistant trucks.
Mr. Block said the trouble in taking the case to trial was proving
what caused the stock price to fall, when defense attorneys would
argue that competition from other manufacturers sank it.
Mr. Block estimated that the $24 million settlement would return
about 60% to investors, before fees, when similar cases typically
recover 10% to 125.
"We felt recovering $24 million was an excellent result in this
class," he said.
The settlement agreement came after a day-long mediation in New
York and a week's worth of follow-up discussions.
Investors must postmark their claims by March 11 to join the
class. An administrator will process the claims within four
months, and the attorneys then return to court for final approval.
Mr. Block said his firm requested that 25% of the settlement go to
attorneys' fees.
U.S. District Court Judge C. Weston Houck asked to see numbers to
justify that figure, adding, "I don't need anything in these fancy
notebooks," just receipts.
Judge Houck approved the settlement and the legal fees, but he
said attorneys would receive only half that money until investors
get their payout.
"Once somebody gets all their money, they lose interest in a
case," Judge Houck said. He added that a half now, half later
distribution would ensure that wouldn't happen in this case.
FORT WAYNE, IN: Sheriff Wants Judge to Approve Class Action
-----------------------------------------------------------
The Associated Press reports a northern Indiana sheriff says his
jail violated inmates' rights to go before a judge within 48 hours
and he wants a judge to approve who's affected by a class-action
lawsuit.
Allen County Sheriff Ken Fries and attorney Christopher Myers
agree in court papers previously filed that the class should cover
everyone arrested during certain weekend hours over more than two
years ending last March 20.
Mr. Myers represents LeTasha Myatt in the case alleging the Fort
Wayne jail violated her Fourth Amendment rights when she was
arrested in September 2009 and held for more than 48 hours without
a judge reviewing her case. Allen County judges now hold weekend
hearings for such cases.
The Journal Gazette reports similar cases are pending in
neighboring LaGrange and Whitley counties.
GENZYME CORP: Harwood Feffer Amends Class Action Complaint
----------------------------------------------------------
Harwood Feffer LLP disclosed that on January 18, 2011, the firm
amended its class action complaint against Genzyme Corporation
and its Board of Directors to include claims of violations under
Section 14 and Section 20 of the Securities Exchange Act of 1934.
The consolidated action, entitled In Re Genzyme Corporation
Shareholder Litigation, Master Docket No. 1:10-CV-11356, is
pending in the United States District Court for the District of
Massachusetts and names as defendants, Genzyme, the Company's
Chairman and CEO, Henri A. Termeer, and other members of the
Company's Board of Directors. A copy of the complaint can be
obtained from the Court.
The complaint charges that the defendants breached their fiduciary
duties to the Company's shareholders and violated the Securities
Exchange Act of 1934. More specifically, the complaint alleges
that defendants failed to disclose certain material facts in
connection with the proposal to acquire the Company by Sanofi-
Aventis, publicly announced on August 29, 2010, and that the 14D-9
defendants filed with the SEC on October 7, 2010 and disseminated
to Genzyme shareholders thereafter, wherein the Board recommended
shareholders not tender their shares, contained materially
misleading information. The complaint also includes claims for
breach of fiduciary duty. It is brought on behalf of a class of
all Genzyme shareholders except for the named defendants and
persons or entities related to or affiliated with the defendants.
If you own Genzyme shares, you may request that the Court appoint
you as lead plaintiff by April 18, 2011. A lead plaintiff is a
representative party that acts on behalf of other class members in
directing the litigation. In order to be appointed lead
plaintiff, the Court must determine that the class member's claim
is typical of the claims of other class members, and that the
class member will adequately represent the class. Under certain
circumstances, one or more class members may together serve as
"lead plaintiff." Your ability to share in any recovery is not,
however, affected by the decision whether or not to serve as a
lead plaintiff. You may retain Harwood Feffer, or other counsel
of your choice, to serve as your counsel in this action.
Harwood Feffer -- http://www.hfesq.com/-- has taken a leading
role in many important actions on behalf of defrauded
shareholders. If you wish to discuss this action with us, or
have any questions concerning this notice or your rights and
interests with regard to the case, please contact:
Jeffrey M. Norton, Esq.
Harwood Feffer LLP
488 Madison Ave., 8th Floor
New York, New York 10022
Telephone: (877) 935-7400 (Toll Free)
E-mail: jnorton@hfesq.com
GROUPON INC: Sued Over Illegal Sale of Gift Certificates
--------------------------------------------------------
Bridget Freeland at Courthouse News Service reports that Groupon,
a social networking site for shoppers, deceptively and illegally
sells gift certificates with short expiration terms, knowing that
many purchasers will not use them in time, according to a federal
class action. The class also sued Nordstrom and "similarly
situated entities," claiming that "Groupon and its retail partners
reap a substantial windfall from the sale of gift certificates
that are not redeemed before expiration."
Groupon, which is just over 2 years old, recently rejected a $6
billion buyout offer from Google. The class says that Groupon's
"gift certificates, referred to and marketed as 'groupons,' are
sold and issued with expiration dates that are deceptive and
illegal under both federal and state laws."
"Launched in November 2008, Groupon is a 'social promotions'
website that promises consumers discounted deals on various
products and services, purportedly through the power of
'collective buying,'" according to the class action.
Groupon partners with retailers in "Daily Deal" offerings, which
are good only if enough people buy it. The consumers must provide
Groupon with an email address, among other information. The class
says that almost "40 million people worldwide reportedly have
signed up to receive offers from Groupon."
It adds: "Groupon partners with hundreds, if not thousands, of
retail businesses around the country, including large, nationwide
companies such as Nordstrom."
Groupon made $500 million from its sale of gift certificates last
year, and "Groupon and its retailer partners share in revenues
from 'groupon' sales," according to the complaint.
"The problem with Groupon's business model is that Groupon and its
retail partners, including Nordstrom, sell and issue 'groupon'
gift certificates with relatively short expiration dates, knowing
that many consumers will not use the gift certificates prior to
the expiration date," the class claims.
It continues: "Groupon effectively creates a sense of urgency
among consumers to quickly purchase 'groupon' gift certificates by
offering 'Daily Deals' for a short amount of time, usually a 24-
hour period. Consumers therefore feel pressured and are rushed
into buying the gift certificates and unwittingly become subject
to the onerous sales conditions imposed by Groupon, including
illegal expiration terms, which are relatively short, often just a
few months."
The class claims Groupon also unfairly requires consumers to use a
gift certificate in one transaction and does not allow them to
"redeem any unused portion of the 'groupon' gift certificates for
the cash amount. Groupon essentially places handcuffs on the
manner in which consumers can redeem their gift certificates for
the products and services offered, even though consumers have
already paid in full for such products and services."
Named plaintiff Anthony Ferreira says that at the end of November
2010 he paid $25 for a Groupon gift certificate redeemable for $50
in apparel and accessories at Nordstrom Rack. He says that the
"fine print" on the groupon stated that it expired on Dec. 31,
2010. He was not able to use the certificate by then and
"believed that the 'groupon' gift certificate he had purchased was
no longer valid and could not be redeemed," he says.
Groupon faced a similar class action in March 2010 in Chicago.
Groupon's CEO Andrew Mason stated on the company's blog in April
that year: "We're pleased to report that the lawsuit that was
filed against us is being dismissed and we've settled with the guy
named in the suit." He continued: "The confounding thing about
this experience is that we give everyone refunds if they have any
issues with their Groupon experience -- we don't need to get sued
for it." The blog also states that after a groupon expires, the
customer can still redeem it for the purchase price based on a
period defined by each state.
Mr. Ferreira demands disgorgement and damages from Groupon,
Nordstrom and other retailers for violations of the Credit Card
Accountability Responsibility and Disclosure Act, the Consumer
Legal Remedies Act, false and misleading advertising, unfair
competition and unjust enrichment.
A copy of the Complaint in Ferreira v. Groupon, Inc., et al., Case
No. 11-cv-00132 (S.D. Calif.), is available at:
http://www.courthousenews.com/2011/01/26/Groupon.pdf
The Plaintiff is represented by:
John J. Stoia, Jr., Esq.
Rachel L. Jensen, Esq.
Phong L. Tran, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: 619-231-1058
HIGHLANDS COUNTY, FL: App. Ct. Affirms Dismissal of Tacy Suit
-------------------------------------------------------------
The United States Court of Appeals for the Eleventh Circuit upheld
the dismissal of Timothy Tacy's complaint against Susan Benton,
the Sheriff of Highlands County, Florida.
Mr. Tacy, a former prisoner proceeding pro se, appealed the
district court's dismissal of his class action civil rights
complaint against Highland County's Sheriff and the Sheriff's
Office Detention Bureau. On appeal, Mr. Tacy argued that the
Sheriff deprived the prisoners and their friends and family of
rights in restricting the type, size, and content of the mail
prisoners received while incarcerated in the Highlands County
jail. He emphasized that no part of the class action complaint is
frivolous and therefore, should not be dismissed.
The Appellate Court reviewed the appeal and held that following
the holding of Massimo v. Henderson, 468 F.2d 1209, 1210 (5th Cir.
1972), Mr. Tacy may not seek relief on behalf of his fellow
inmates. In this light, the Appellate Court affirmed that the
district court properly dismissed Mr. Tacy's complaint.
A copy of the Appellate Court's January 14, 2011 order is
available at http://is.gd/scTZmxfrom Leagle.com.
INTERNATIONAL COFFEE: Appellate Ct. Affirms Ruling on Tip Pooling
-----------------------------------------------------------------
The Court of Appeals of California for the Fourth District upheld
a trial court's summary judgment order entered in favor of
International Coffee & Tea LLC in the class action commenced by
Krystal A. Jones on behalf of herself and all non-supervisory
employees of the company.
Ms. Jones worked as a barista for 15 months for International
Coffee, which operates numerous "The Coffee Bean & Tea Leaf" cafes
in California. She asserted three allegations under the class
action against the company -- improper tip pooling, failure to pay
compensation due and owing to terminated or resigned employee, and
unfair business practices in violation of California's unfair
competition law.
The parties stipulated to the creation of a class and subclass.
The stipulated class consisted of all persons who are employed
or have been employed by the Defendant in California who, from
March 24, 2004 through March 27, 2008, have worked as a barista
and were required to pool tips with employees whom the Plaintiff
alleges are supervisors. The subclass consisted of all persons
who are members of the stipulated Class but who are no longer
employed by the Defendant.
International Coffee filed a motion for summary judgment or in the
alternative, summary adjudication of Ms. Jones' claims based on
the California Appellate Court's decision in Jou Chau v. Starbucks
Corp. (2009) 174 Cal.App.4th 688. The trial court granted summary
judgment in favor of International Coffee, and Ms. Jones timely
appealed from the judgment.
Upon review, the Appellate Court agrees with the trial court's
conclusion that the undisputed facts presented by the parties in
the Jones action were "identical" to those enumerated in the Chau
case. The Appellate Court agrees with the trial court's finding
that International Coffee's tip policy and overall operations were
identical to those of Starbucks in Chau.
Moreover, the Appellate Court holds that the record support the
trial court's conclusion that Ms. Jones submitted no evidence to
support a finding that International Coffee had a policy requiring
its baristas to share individual tips by placing them into the
collective tip jar.
Because Ms. Jones did not show a violation of Section 351 of the
Labor Code, her UCL claim failed as a matter of law, the Appellate
Court opines. Thus, the trial court properly granted summary
judgment in favor of International Coffee, the Appellate Court
affirms.
A copy of the Appellate Court's January 19, 2011 Order is
available at http://is.gd/ZCn5dGfrom Leagle.com.
JOHN B. SANFILIPPO: Defends "Wage and Hour" Lawsuit in Illinois
---------------------------------------------------------------
John B. Sanfilippo & Son, Inc., continues to defend itself against
a class action lawsuit for allegedly not adequately paying its
hourly employees, according to the Company's Form 10-Q filed with
the Securities and Exchange Commission for the quarter ended
December 23, 2010.
In fiscal 2010, a group of former and current hourly employees
filed a class action labor lawsuit against the Company in the
Northern District of Illinois, whereby they claimed that they were
not properly paid and/or being paid for all preliminary and
postliminary hours worked for donning and doffing work attire in
violation of the Illinois Minimum Wage Law and the Fair Labor
Standards Act. The plaintiffs claimed damages under the IMWL in
an amount equal to all unpaid back pay alleged to be owed to the
plaintiffs, prejudgment interest on the back pay, punitive
damages, attorneys' fees and costs, and an injunction precluding
the Company from violating the IMWL. The plaintiffs additionally
claimed damages under the FLSA in an amount equal to all back pay
alleged to be owed to the plaintiffs, prejudgment interest on the
back pay, liquidated damages equal to the amount of unpaid back
wages, and attorneys' fees and costs.
In the second quarter of fiscal 2011, the plaintiffs filed a
second amended complaint in which they allege that the Company
maintained and maintains a practice regarding the rounding of
employees' time entries which violates the IMWL and the FLSA.
The Company disputes all claims, and intend to defend the lawsuit
vigorously. The parties have, however, entered into preliminary
discussions in an effort to possibly resolve the claims.
At this early stage in the proceedings and discussions, the
Company does not have a reasonable estimate of the amount of its
ultimate liability, if any, or the amount of any potential future
settlement, but the amount could have a material adverse effect on
the Company's financial position, results of operations and cash
flows and could be in excess of the accrual which management has
established.
LAND OF NOD: Recalls 300 Rosebud Drop-Side Cribs
------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
The Land of Nod, of Northbrook, Ill., announced a voluntary recall
of about 300 rosebud drop-side cribs. Consumers should stop using
recalled products immediately unless otherwise instructed.
The drop-side rail hardware on the cribs can break or fail,
allowing the drop side to detach from the crib. When the drop side
detaches, a hazardous gap is created between the drop-side rail
and the crib mattress in which infants and toddlers can become
wedged or entrapped, posing risks of suffocation and
strangulation. In addition, children can fall out of the crib
when the drop-side rail falls unexpectedly or detaches from the
crib. Drop-side rail failures can also occur due to incorrect
assembly or with age-related wear and tear.
CPSC and The Land of Nod have received 13 reports involving drop-
side hardware that has malfunctioned or failed. No injuries have
been reported.
This recall includes "Rosebud" cribs manufactured by Status
Furniture. The cribs are white or antique white and have plastic
drop-side hardware. "Status Furniture" appears on crib labeling
on the lower portion of the headboard. Model number "910"appears
on the assembly instructions. Pictures of the recalled products
are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11111.html
The recalled products were manufactured in Canada and sold through
the Land of Nod retail stores and online at www.landofnod.com from
January 2003 through September 2004 for about $600.
Consumers should stop using these cribs immediately and contact
The Land of Nod to receive instructions on how to receive a
merchandise credit for the full purchase price of the crib ($599).
The Land of Nod is undertaking this recall for its customers
because Status Furniture is out of business. In the meantime,
parents are urged to find an alternate, safe sleeping environment
for the child, such as a bassinet, play yard or toddler bed
depending on the child's age. For additional information, contact
The Land of Nod at (800) 933-9904 between 8:30 a.m. and 5:00 p.m.,
Central Time, Monday through Friday, or e-mail at
recall@landofnod.com , or visit the firm's Web site at
http://www.landofnod.com/
LEBANON, PA: Sued Over Excessive Truancy Fines
----------------------------------------------
Erin McAuley at Courthouse News Service reports that the NAACP
claims the Lebanon School District illegally fined poor people
thousands of dollars for their children's truancy. The federal
class action claims that state law limits truancy fines to $300
plus costs, but the district charged as much as $9,000 per
citation, and charged "in excess of $300 on at least 323 fines,
totaling at least $107,000." When the NAACP confronted it, the
district knocked $235,000 off the fines, but the NAACP and parents
say that didn't resolve the problem.
"Although the governing Pennsylvania statute, 24 P.S. Sec.
13-1333, limits fines to $300 plus costs for a citation, the
district sought and obtained fines in excess of such amounts,
including fines as high as $9,000 plus costs per citation,"
according to the complaint. The district issues more than 1,200
truancy citations a year.
Suing with class representative parents, the NAACP says the school
district "began the campaign of intensive use of court citations
and excessive fines for truancy in the 2004-05 school year with
the appointment of Robert Bowman as attendance officer, with the
fines increasing each school year through 2008-09."
From July 1, 2004 through June 30, 2009, the district was awarded
at least 935 fines in excess of $300, at least 178 of which
exceeded $1,000, the complaint states.
For the 2008-09 school year alone, the district issued 1,489
citations to more than 700 parents or students for a total of more
than $498,000; 250 fines were more than $300 and 75 were over
$1,000, the parents say.
"Many of the parents with excessive fines are on limited or fixed
incomes and are paying the fines to the district courts pursuant
to monthly payment plans," and many of the excessive fines from
the past six years are still being collected, according to the
complaint.
Parents filing the class action include four mothers who together
have been fined more than $19,000.
A single mother of three, Rosa Rivera, was fined $1,400 when her
son missed 20 days of school because she had been planning to
enroll him in a school in Puerto Rico.
Ms. Omary Rodriguez-Fuentes, a mother of four, has been paying
off 29 truancy citations that total more than $7,000 at a rate of
$150 per month from her disability income, which is her family's
only source of financial support.
Madeline Echevarria has paid more than $3,000 in truancy citations
for her two children. And Lenora Hummel, who also lives on
disability and is a single mother, has been fined more than
$8,000.
The mothers seek to include all "parents of truant school children
who either paid fines in excess of the statutory maximum or have
outstanding balances owed based on fines in excess of the
statutory maximum" in the class.
The NAACP does not sue as a class representative but claims that
the district imposes the illegal fines as "deterrents to parents
and students from registering students in the school district out
of fear of exorbitant fines," and diverts resources of the NAACP
chapters and its members to reining in the school district.
The class claims that even though the Pennsylvania Department of
Education "recommends that school districts develop Truancy
Elimination Plans for each truant student with the participation
of the students' parents before initiating court proceedings for
truancy, defendant School District as never done so."
They say that when the schools district was "confronted in 2009 by
Lebanon Chapter of the NAACP with the illegality of such fines,
the district tacitly admitted the fines were illegal by
selectively acting to adjust many of the fines to conform to the
$300 limitation, while leaving other excessive fines unchanged."
The class claims the school district "sought and obtained from the
district courts the adjustment of at least 340 fines that had been
in excess of the statutory maximum. Most were adjusted down to
the statutory maximum. Some of the fines dated back to 2004.
These actions reduced outstanding balances being collected for
distribution to the district by at least $235,000. The school
district has never disclosed the criteria by which the recipients
of these reductions were selected, but at least 273 fines which
still have outstanding balances due were excluded from the
adjustments. . . . No rational basis exists for the distinction
between fines which were reduced and those that were not. The
intentional exclusion of plaintiff class members with outstanding
balances from those selected for adjustment was arbitrary and
capricious."
While the district has stopped collecting some of the excessive
fines, the class claims, "it has done nothing to provide
restitution of the funds it has illegally obtained from those who
diligently completed paying their fines or who have made partial
payments in excess of $300, thus irrationally treating more
harshly persons who have complied with the fines than those who
have not."
The class claims that when the district reduced some of its
outstanding fines, it was "an admission that it was not entitled
to the proceeds of fines in excess of $300 per citation, and it is
inconsistent with the school district's retaining the payments of
excess fines that it has received, which on information and belief
totaled at least $107,000 since July 1, 2004."
They add that because the district has never given notice to any
class members of any procedure to seek "adjustment" of unpaid
fines or restitution of excessive amounts paid, the class has been
denied "any process to establish that they are eligible or
entitled to adjustment like those given to others based on secret
criteria."
The class seeks declaratory judgment and injunctive relief for
violations of equal protection and due process, violations of the
Pennsylvania Constitution and Public School Code, equitable
restitution of the illegal fines paid to the district and the
creation of truancy-elimination programs consistent with the
Pennsylvania Department of Education's Basic Education Circular.
A copy of the Complaint in Rivera, et al. v. Lebanon School
District, Case No. 11-cv-00147 (M.D. Pa.), is available at:
http://www.courthousenews.com/2011/01/26/Truancy.pdf
The Plaintiffs are represented by:
Michael Churchill, Esq.
Benjamin Geffen, Esq.
PUBLIC INTEREST LAW OF PHILADELPHIA
1709 Benjamin Franklin Parkway, Second Floor
Philadelphia, PA 19103
Telephone: 215-627-7100
E-mail: mchurchill@pilcorp.org
- and -
Thomas B. Schmidt, Esq.
PEPPER HAMILTON LLP
100 Market Street, Suite 200
P.O. Box 1181
Harrisburg , PA 17108
Telephone: 717-255-1164
E-mail: schmidtt@pepperlaw.com
LIVE NATION: Settles Class Action Over Ticketmaster Fees
--------------------------------------------------------
Alex Pham, writing for the Los Angeles Times, reports Live Nation
Logo Live Nation Entertainment, the Beverly Hills events promoter,
on Jan. 26 said it had settled a class-action lawsuit over fees
charged by its subsidiary, Ticketmaster.
The lawsuit, originally filed by two individual plaintiffs in Los
Angeles Superior Court in 2003 and granted class-action status in
September, accused Ticketmaster of misleading customers when it
tacked on $14.50 to $25 in delivery fees. The suit alleged that
Ticketmaster suggested that the fees simply covered the cost of
delivering the tickets, but were in fact designed to boost the
company's profit.
Ticketmaster Logo Live Nation, which merged last year with
Ticketmaster to create an entertainment powerhouse, agreed to
settle the lawsuit in December, setting aside $22.3 million to pay
for legal fees and issue refunds to affected customers. It
reduced its expected fourth-quarter earnings by the same amount,
plus $4.9 million to "restructure its North American concerts
business," according to a report filed on Jan. 26 with the U.S.
Securities and Exchange Commission.
As a result, Live Nation said it expects its fourth-quarter
operating income to be $362 million, down from its previous
estimate of $389 million. The company is expected to report its
earnings Feb. 28.
The company, which is suing its insurance carrier for not covering
more than $4 million in legal expenses incurred in the case,
admitted no wrongdoing, but said Ticketmaster would "make certain
changes to disclosures on its website."
LOS ANGELES, CA: Judge Certifies Prosecutors' Class Action
----------------------------------------------------------
Sherri M. Okamoto, writing for Metropolitan News-Enterprise,
reports U.S. District Judge Otis D. Wright II of the Central
District of California has certified a class of prosecutors who
allegedly suffered violation of their privacy rights and
discrimination after disclosure of their desire to unionize was
made to Los Angeles District Attorney Steve Cooley and his
administration.
Counsel for the prosecutors' union, Matthew Monforton, said on
Jan. 25 he was "pleased that the 540 prosecutors whose privacy
rights were violated by Steve Cooley and his management team will
get their day in court."
The order, issued on Jan. 25, was identical to Judge Wright's
earlier tentative decision granting certification, except that it
added language cautioning decertification could occur in the
future "[s]hould facts later emerge which so require."
Cooley Attorney 'Disappointed'
Brian Hershman of Jones Day, who argued on behalf of the
defendants at a hearing on the certification issue on Jan. 21,
remarked that he was "disappointed with the court's ruling," and
"we believe in discovery it will confirm that it is not an
appropriate class for the reasons that we raised at the hearing."
He added that "we believe that in the end these causes of action
have no merit, and we look forward to litigating the merits."
The order certified a class "of Los Angeles County deputy district
attorneys in Grades I through IV who signed 'union cards' between
December 2007 and February 2008 indicating their desire to
unionize."
The Association of Deputy District Attorneys -- which bills itself
as the largest prosecutors union in the country -- asserted that
these individuals were subjected to a variety of constitutional
violations when Assistant Head Deputy Peter Burke disclosed a list
of their names to Cooley's senior management.
Judge's Reasoning
At the hearing, Mr. Hershman had argued that analysis of the
alleged wrongs required an individualized inquiry for each class
member since some individuals may not have acted in private manner
in voting or have been concerned with the Cooley administration
learning how he or she had voted.
Judge Wright, however, found the union "rightly argue[d] that both
the legal theories and factual allegations" underlying the class-
based claims "apply with equal force to the entire proposed class"
since it was "a single incident which allegedly caused similar
harm to similarly situated deputy district attorneys."
He noted that each class member's individual situation "might not
be entirely irrelevant" but to the extent that a factual inquiry
may be required, "it would actually appear that, because the
prospective class members are so similarly situated, class-wide
treatment is not only warranted, but advisable."
The original complaint in the lawsuit was filed in October 2008 by
the ADDA and an unnamed member against Mr. Cooley, Chief Deputy
District Attorney John Spillane, Bureau Director John Zajec, and
Assistant District Attorneys Curtis Hazell and Jacquelyn Lacey,
asserting seven causes of action based on the defendants' alleged
attempts to quash the fledging union.
In April 2010, the complaint was amended to add the class-based
claims arising from the "unlawful disclosure" to Mr. Cooley and
management officials of a list identifying the class members and
from Mr. Cooley's subsequent use of that list to "intimidate,
harass and slander union supporters." The amended complaint also
added Burke and other members of Mr. Cooley's management team as
defendants.
The case is One Unnamed Deputy District Attorney v. County of Los
Angeles, 09-7931.
R.J. REYNOLDS: Kirkland Tobacco Trial to Take Three Weeks
---------------------------------------------------------
Bob Van Voris, writing for Bloomberg News, reports Willie Gary,
the Florida trial lawyer who won a $500 million verdict against a
funeral-home chain in a contract dispute and $240 million over
claims that Walt Disney Co. stole his clients' theme-park idea, is
now turning his sights on R.J. Reynolds Tobacco Co.
Mr. Gary's partner, Manuel Socias, began delivering opening
arguments on Jan. 26 in a suit against Reynolds, the second-
biggest U.S. tobacco company, filed by Leroy Kirkland of Tampa,
Florida, who alleges he developed cancer from decades of smoking
Salem and Pall Mall cigarettes.
"They knew it was addictive," Mr. Socias told the six jurors and
three alternates. "They knew what they were selling and they knew
it was a drug. They knew they were drug dealers."
Kirkland's is the first tobacco trial for Mr. Gary, one of 11
children born to a family of migrant workers in Georgia. The
tobacco industry has won eight of its last nine Florida verdicts.
Gary, 63, predicts a billion-dollar result.
"This is it," Mr. Gary said in a telephone interview. "I feel it
in my bones."
Reynolds, a unit of Winston-Salem, North Carolina-based Reynolds
American Inc., said in court papers that Mr. Kirkland knew the
risks and chose to smoke on his own, before quitting in the early
1990s. Before then, Mr. Kirkland ignored warnings from his family
and even referred to cigarettes as "cancer sticks," the company
said.
Funeral Homes
Mr. Gary's biggest victory came in 1996, when he persuaded a
Mississippi jury to award $500 million in a suit against Loewen
Group Inc., a Canadian owner of funeral homes.
He also secured a $240 million award in 2000 against Walt Disney
in a case claiming the company stole his clients' idea for a
sports theme park. In 2001, Gary won a $139 million verdict
against Anheuser-Busch Cos. for the family of former baseball
player Roger Maris in a suit over a beer distributorship.
The Web site of Gary, Williams, Finney, Lewis, Watson & Sperando
PL, Gary's law firm in Stuart, Florida, features photos of "Wings
of Justice II," his customized Boeing 737, equipped with 32 seats
and an 18-carat gold bathroom sink. A promotional video, set to
songs from the film "Rocky" and its sequels, shows Mr. Gary in his
Stuart, Florida, office and $10 million mansion on the St. Lucie
River.
Gary announced two years ago that he and his firm would be
representing hundreds of Florida smokers and their families in
lawsuits against tobacco companies, according to a statement
distributed by PRNewswire.
Father of Six
In the Kirkland case, Mr. Gary is seeking compensatory and
punitive damages for Kirkland, 71, a divorced father of six who
began smoking when he was 11 or 12, before health warnings were
required to be included on cigarette packs, according to Gary's
partner, Tricia Hoffler.
Mr. Kirkland claims he contracted cancer of the larynx and
emphysema, the judge told jurors at the start of trial.
"We're eager to take on Big Tobacco," said Ms. Hoffler. "The
conduct by the defendant has been beyond egregious."
Mr. Gary added as local counsel Howard Acosta, a lawyer with
experience litigating tobacco cases.
Reynolds declined to comment about the Kirkland case.
The suit by Kirkland is one of more than 8,000 individual claims
by smokers filed in state and federal courts throughout Florida
after the state's supreme court in 2006 threw out a $145 billion
punitive-damage verdict against the industry and ended a class
action filed on behalf of Florida smokers.
Jury Findings
At the same time, the court gave members of the class -- Florida
smokers claiming death and sickness resulting from addiction to
nicotine in cigarettes -- a one-year window to file individual
claims. The court also said the smokers could press their claims
using jury findings in the class action, including that the
tobacco companies sold defective products, concealed the dangers
of smoking and acted negligently.
So far, 32 "Engle" claims -- named after Howard Engle, the lead
plaintiff in the unsuccessful class action -- have been tried to
verdict, according to Edward L. Sweda Jr., senior attorney for the
Tobacco Products Liability Project, which tracks the suits.
Smokers and their families have won 21 verdicts.
Verdicts have ranged as high as almost $300 million, in Fort
Lauderdale in 2009, against Altria Group Inc.'s Philip Morris
unit. The trial judge in the case, calling the amount "grossly
excessive," reduced it to $38.9 million.
After losing most of the trials, the industry won eight Florida
defense verdicts in a row, beginning with a win for Reynolds in
August. The streak ended with an $80 million verdict against
Reynolds in Levy County in November.
The Kirkland trial, before Judge William P. Levens in Florida
Circuit Court in Tampa, is expected to take three weeks.
The case is In Re Engle Progeny Cases Tobacco Litigation,
08-CA-673, Florida Circuit Court, Hillsborough County (Tampa).
REGENCE BCBS: ERISAclaim.com Webinars to Examine Court Ruling
-------------------------------------------------------------
On Jan. 21, 2011, the federal northern district court of Illinois
in Chicago dismissed the defendant Regence BCBS's counterclaims
for PPO contract breach and unjust enrichment on the ground of
ERISA complete preemption, in the largest provider overpayment
ERISA class action against 23 BCBS entities, after the federal
court ruled on 05/17/2010 against BCBS's motion to dismiss and
permited providers' ERISA class action to proceed while dismissed
providers' RICO claims. ERISAclaim.com provided the ERISA
compliance assistance and support in the defendant providers'
ERISA administrative appeals and judicial litigation in this case,
and is now offering free Webinars to discuss the profound impact
of the court ruling in the entire overpayment recoupment market,
estimated in trillions of dollars.
"After numerous recent federal court orders that federal law ERISA
completely governs, preempts and limits overpayment recoveries by
health plans, it is increasingly popular that health plans are
asserting state law claims of healthcare fraud, unjust enrichment,
or provider contract breach in recouping and withholding payments
from healthcare providers. This court order is an extremely
timely and important legal guidance for all parties," said
Dr. Jin Zhou, President of ERISAclaim.com, a national expert on
PPACA and ERISA appeals and overpayment.
According to the court papers filed on Jan. 24, 2011, "the Court
grants plaintiff Miggins and third party defendant Miggins &
Miggins, Inc.'s motion to dismiss The Regence Group's
counterclaim, docket no. 276. The Court also directs the Clerk to
terminate the remaining motions to dismiss, all of which the Court
believes it has previously ruled upon, docket nos. 259, 261 & 267.
The Regence Group is granted leave to file an amended complaint in
conformity with this order on or before 2/11/11".
The court document revealed providers' ERISA preemption argument:
"Miggins argues that Regence's claim is preempted by ERISA section
514(a), which provides that ERISA supersedes state laws that
"relate to any employee benefit plan." 29 U.S.C. Sec. 1144(a).
State law relates to a benefit plan if is has connection with or
reference to such a plan. Pilot Life Ins. Co. v. Dedeaux, 481 U.S.
41, 47 (1987). This occurs in various ways, only one of which is
relevant here: if the state law "provides an alternative
enforcement mechanism to ERISA." Trustees of the AFTRA Health
Fund v. Biondi, 303 F.3d 765, 774 (7th Cir. 2002). That happens
if the benefit plan's existence is a critical element of a state
law claim, such that the state law relies on a direct and
unequivocal nexus with an ERISA plan. Id. at 778."
The federal court's ERISA preemption legal reasoning:
"At least some parts of Regence's claim are, in fact, preempted by
ERISA. As indicated earlier, Regence relies in part on a
contention that Miggins obtained payment on claims that were not
covered under patient subscriber agreements. Regence does not
disclose whether any of those agreements are ERISA benefit plans,
but it is overwhelmingly likely that some or even most of them
are. In addition, it is conceivable that other parts of Regence's
claim rely on the terms of one or more ERISA benefit plans."
Court case info: Pa. Chiropractic Assn. vs. BCBS Assn., et al.,
CASE #: 1:09-cv-05619, United States District Court, Northern
District of Illinois.
For a complete copy of the court order May 17,
2010: http://is.gd/OSp2Ue
For a complete copy of the court order Jan 21, 2011:
http://www.erisaclaim.com/BCBS_Miggins.pdf
"Health-care overpayment recoupment market is estimated to be from
billions to trillions of dollars, considering U.S. annual
healthcare expenditure in about $2.6 trillion and denied
healthcare claims as well as the number of 3 to 5 years subject to
overpayment scrutiny, it is a trillion dollar market with little
legal guidance," warned Dr. Zhou. "This is the largest class
action seeking for judicial guidance, in addition to recent court
rulings in Rhode Island federal district court."
On Jan. 19, 2011, the federal district court in Rhode Island
denied plaintiff BCBSRI's motion to reconsider its earlier ruling
on federal subject matter jurisdiction and denies plaintiff's
motion to certify the Court's interlocutory order for immediate
appeal to the First Circuit. On October 27, 2010 the Court ruled
against BCBSRI over its recoupment practice for over $400,000
against two healthcare providers, finding that federal law ERISA
pre-empts, supersedes and limits BCBSRI overpayment recoupment
practice. A Preliminary Injunction Against Plaintiff BCBSRI Was
Issued On 11/04/2010.
The court case info: BCBSRI v. Korsen et al, filed on 01/19/2011,
Case#: 1:09-cv-00317-L-LDA, UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF RHODE ISLAND
For a complete copy of the court's order denied BCBSRI motion for
reconsideration: http://www.erisaclaim.com/BCBSRI_Denied.pdf
For registration and scheduling info of the free
webinar: http://www.erisaclaim.com/Free_ERISA_Webnars.htm
For more information on how to become an ERISA-PPACA & ERISA
Claims Specialist under new and existing federal appeals
regulations: http://www.erisaclaim.com/certification.htm
Located in a Chicago suburb in Illinois, ERISAclaim.com is the
only ERISA & PPACA consulting, publishing and website resource for
healthcare providers in the country. ERISAclaim.com offers free
webinars, basic and advanced educational seminars and on-site
claims specialist certification programs for doctors, hospitals
and commercial companies, as well as litigation support.
Dr. Jin Zhou is regarded as the industry "Godfather of ERISA
claims" for healthcare providers. For any questions, please
contact Dr. Jin Zhou, president of ERISAclaim.com, at 630-808-
7237.
SMART TECHNOLOGIES: Files Securities Fraud Class Action
-------------------------------------------------------
Gilman and Pastor, LLP, has filed a class action lawsuit in the
United States District Court for the Northern District of Illinois
on behalf of the purchasers of the common stock of Smart
Technologies, Inc. pursuant to the Initial Public Offering on
July 15, 2010, or bought in the open market thereafter, through
November 9, 2010, inclusive.
The Complaint alleges that SMT violated federal securities laws by
issuing failing to disclose the following facts: (i) the recently
acquired NextWindow business was not proceeding according to plan;
(ii) revenues were declining in the second quarter of 2010 as a
result. As a result of Defendants' misleading statements, SMT
common stock traded at artificially high price levels.
In the IPO, Company insiders sold over 30 million shares, out of
the 38.8 million shares sold, realizing tens of millions of
dollars of profit. Then, on November 9, 2010, SMT announced
weaker-than-expected revenue for the 2010 second quarter.
Consequently, shares of SMT dropped more than 31% on the following
day.
If you purchased or otherwise acquired SMT shares during the Class
Period, between July 15, 2010 and November 9, 2010, and either
lost money on the transaction or still hold the shares, you may
contact Gilman and Pastor by no later than February 1, 2011 to
discuss your rights, including as to the recovery of your
losses, or to obtain additional information, at
http://www.investment-losses.com/by e-mail at
kgilman@gilmanpastor.com or by calling toll-free (888) 252-0048.
Gilman and Pastor, LLP represents institutional and individual
investors in class actions, complex securities and corporate
governance litigation. You may retain Gilman and Pastor without
any financial obligation or any cost to you, or you may retain
other counsel of your choice.
CONTACT: Kenneth G. Gilman, Esq.
GILMAN AND PASTOR, LLP
16 Fourteenth Avenue
Wareham, MA 02571
Telephone: (888) 252-0048
(508) 291-3258
E-mail: kgilman@gilmanpastor.com
SONOMA VALLEY: Shareholders Mull Class Action
---------------------------------------------
Nathan Halverson, writing for The Press Democrat, reports
shareholders of the failed Sonoma Valley Bank are organizing a
class action lawsuit against its management, according to several
investors.
"It is quite clear they did not put the interest of shareholders
first," said John Fanucchi, a retired PG&E manager whose family
owns about 5,000 shares. "I think they harmed and wronged a lot
of local citizens, who had placed a lot of trust in them."
Sonoma Valley Bank was closed by bank regulators in August after
suffering large loan losses, including several loans made to a
pair of Marin County developers. The bank is now the focus of a
federal investigation that extends beyond the routine audit that
follows any bank's collapse, according to sources.
Details of the bank's loans, which were obtained through county
land records and published by The Press Democrat on Sunday, show
the bank continued to loan millions of dollars to Marin County
developer Bijan Madjlessi even after the Mill Valley resident had
stopped paying building contractors on his projects and defaulted
on $27 million loan from another bank for a Santa Rosa
development.
Shareholders claim the bank's actions were potentially negligent,
and that the bank's management did not inform them when its loan
portfolio began to show serious problems.
"I felt we've been manipulated," said Jack Powers, a founding
shareholder and retired Apple Computer employee. "I'm with the
lawsuit."
Sean Cutting, the bank's president and chief executive when it was
seized by regulators, did not return calls seeking comment. Mel
Switzer Jr., who was the bank's longtime chief executive, did not
return calls seeking comment.
They have previously blamed bank regulators for seizing the bank
prematurely, and stated it was on track to financially recover.
Former bank board member Steve Page, who is president and general
manager of Infineon Raceway, defended the bank's management in a
letter to the editor submitted on Jan. 23 to The Press Democrat.
"The board and management of that institution are as fine a group
of individuals and community leaders as I could ever hope to be
associated with," he said.
He wrote that the federal investigation was either "nonexistent"
or "baseless." He declined comment when reached on Jan. 25.
Shareholders such as Messrs. Powers and Fanucchi claim the bank's
management did not provide an accurate picture of the bank's
financial problems at shareholders meetings.
Angry investors have turned to two large shareholders, Gary Nelson
and Gerald "Jerry" Marino, who initiated efforts to review
potential legal remedies to recover their losses. Mr. Nelson, who
served on the board until about five years ago, is founder of The
Nelson Family of Companies, a temporary staffing company based in
Sonoma. He could not be reached for comment Tuesday. Mr. Marino
is a founding director of the bank.
"People are coming to me from all around," Mr. Marino said. "They
want in on the lawsuit."
Newton Dal Poggetto, a Sonoma attorney who owns 17,000 shares,
called Marino on Jan. 25.
"I've been thinking it over," he said. "I'll contribute to the
cost of the lawsuit."
TENNESSEE: New DUI Law Unconstitutional, Class Action Claims
------------------------------------------------------------
Courthouse News Service reports that a class action challenges
Tennessee's new DUI law that says people with prior DUI
convictions who are arrested again on drunk-driving charges "shall
not be released" unless the court determines they are "not a
danger to the community." The class claims that's
unconstitutional.
A copy of the Complaint in Pylant v. Haslam, Case No. 11-89-III
(Tenn. Ch. Ct., Davidson Cty.), is available at:
http://www.courthousenews.com/2011/01/26/DUIs.pdf
The Plaintiff is represented by:
Allen Woods, Esq.
LAW OFFICES OF WOODS AND WOODS
P.O. Box 128498
Nashville, TN 37212
Telephone: (615) 321-1426
- and -
Mark J. Downton, Esq.
LAW OFFICE OF MARK J. DOWNTON
5654 Amalie Drive
Nashville, TN 37211
Telephone: (615) 275-6480
TEXAS: Six Officials Face Class Action Over State Living Centers
----------------------------------------------------------------
Aziza Musa, writing for the Texas Tribune, reports that disability
rights advocates filed a class-action lawsuit on Jan. 26 claiming
that six Texas officials, including Gov. Rick Perry, violated the
rights of more than 4,200 residents in state-supported living
centers.
Three plaintiffs with intellectual and developmental disabilities
filed the suit in a state district court in Travis County. The
three, who the plaintiffs say have been involuntarily
institutionalized for a combined total of 134 years, claim that
state leaders violated their due process rights by not allowing
them periodic judicial reviews to determine whether they still
need sustained confinement.
"An entire class of citizens is being confined by the state of
Texas, with no opportunity to challenge the need for continued
institutionalization, despite changes in ability, commitment
criteria and increased community services," Beth Mitchell, senior
managing attorney at Advocacy Inc., a nonprofit disability rights
organization, said in a statement.
In addition to Gov. Perry, defendants include Health and Human
Services Commissioner Tom Suehs, Department of Aging and
Disability Services chief Chris Traylor, and the directors of
Austin, Mexia and Lufkin state-supported living centers.
Gov. Perry's office could not be immediately reached for comment.
TOYOTA MOTOR: Settles Canadian Export Conspiracy Class Action
-------------------------------------------------------------
Ben Popken, writing for The Consumerist, reports if you bought or
leased a new car in the Toyota family from Jan 1, 2001 to April
30, 2003, you could get some cash in a new class action lawsuit.
The lawsuit alleges a conspiracy between Toyota Motor Sales,
U.S.A. and the Canadian Automobile Dealer's Association to keep
Canadian car exports out of the states and raise prices for
American consumers.
The two groups admit no wrongdoing but have agreed to settle.
Toyota will pay $35 million and CADA $700,000.
The Consumerist's Mr. Popken said, "You're eligible if you bought
or leased a new Acura, Audi, BMW, Buick, Cadillac, Chevrolet,
Chrysler, Dodge, Ford, GMC, Honda, Hummer, Infiniti, Jaguar, Jeep,
Land Rover, Lexus, Lincoln, Mazda, Mercedes, Mercury, Mini,
Nissan, Oldsmobile, Plymouth, Pontiac, Saab, Saturn, Toyota,
Volkswagen, or Volvo in AZ, AR, CA, ID, KS, ME, MA, MI, MN, MS,
NE, NV, NH, NM, ND, SD, TN, VT or WI."
"That's it. All you had to have done to be eligible is bought or
leased one of those new cars in one of those states between
Jan '01 and April '03."
"To participate and get a piece of the pie, you must submit a
claim at http://canadianexportantitrust.com/
"The deadline is this Feb. 1, so act soon," Mr. Popken said.
TOYOTA MOTOR: Recalls Lexus Cars Over Fuel Pressure Sensors
-----------------------------------------------------------
Toyota Motor Sales, U.S.A., Inc., will conduct a voluntary Safety
Recall involving approximately 245,000 2006 through 2007 Lexus GS
300/350, 2006 through early 2009 Lexus IS 250, and 2006 through
early 2008 Lexus IS 350 vehicles sold in the U.S. to inspect the
fuel pressure sensor installation.
Due to insufficient tightening of the fuel pressure sensor
connected to certain engine fuel delivery pipes (those with Nickel
Phosphorus plating), there is a possibility that the pressure
sensor could loosen over time. If loosening occurs, fuel could
leak past a gasket used in the connection between the sensor and
the delivery pipe and through the threaded portion of the sensor.
Lexus dealers will inspect the vehicle for fuel leakage and if no
leakage is found, will tighten the fuel pressure sensor with the
proper torque. If a fuel leak is confirmed, the gasket between
the sensor and the delivery pipe will be replaced and the sensor
will be tightened with the proper torque. The inspection and
possible gasket replacement will be conducted at no charge to the
vehicle owner.
Owners of the involved vehicles will receive a safety recall
notification by first class mail once the parts that may be needed
have been obtained. Lexus will also post this information on its
website. Detailed information about this recall is available
through Lexus Customer Satisfaction at 1-800-25 LEXUS or 1-800-
255-3987 or at http://www.lexus.com/recall/
Toyota Motor Corporation also disclosed a separate recall
involving 1.3 million vehicles worldwide to remedy a different
condition on a different fuel delivery pipe and a high pressure
fuel pump check valve. TMC's recall announcement does not involve
vehicles sold in North America.
TOYOTA MOTOR: Continues to Defend "Sudden Acceleration" Lawsuits
----------------------------------------------------------------
Toyota Motor Credit Corporation continues to defend class action
lawsuits seeking damages as a result of alleged sudden unintended
acceleration in certain Toyota and Lexus vehicles, according to
separate Form 10-Ds filed with the Securities and Exchange
Commission on Jan. 25, 2010, by Toyota Auto Receivables 2010-A
Owner Trust; Toyota Auto Receivables 2010-B Owner Trust; and
Toyota Auto Receivables 2010-C Owner Trust.
The Company and certain affiliates were named as defendants in the
consolidated multidistrict litigation, In Re: Toyota Motor Corp.
Unintended Acceleration, Marketing, Sales Practices and Products
Liability Litigation (United States District Court, Central
District of California) seeking damages and injunctive relief as a
result of alleged sudden unintended acceleration in certain Toyota
and Lexus vehicles. A parallel action was filed against the
Company and certain affiliates on March 12, 2010 by the Orange
County District Attorney. On August 2, 2010, the plaintiffs filed
a consolidated complaint in the multidistrict litigation that does
not name the Company as a defendant. On November 17, 2010, the
court ordered that all omitted claims and theories are deemed
dismissed without prejudice. In addition, the court has permitted
alleged classes of foreign plaintiffs to file complaints naming
the Company and related entities as defendants. The Company also
remains a defendant in the state court action filed by the Orange
County District Attorney.
The Company believes it has meritorious defenses to these claims
and intends to defend them vigorously. At this time, the Company
believes that the case will not be material to holders of any
notes of Toyota Auto Receivables 2010-A Owner Trust; Toyota Auto
Receivables 2010-B Owner Trust; and Toyota Auto Receivables 2010-C
Owner Trust.
TOYOTA MOTOR: California Bondholder Suit Dismissed With Prejudice
-----------------------------------------------------------------
Toyota Motor Credit Corporation won dismissal of a lawsuit filed
by bondholders in California, according to separate Form 10-Ds
filed with the Securities and Exchange Commission on Jan. 25,
2010, by Toyota Auto Receivables 2010-A Owner Trust; Toyota Auto
Receivables 2010-B Owner Trust; and Toyota Auto Receivables 2010-C
Owner Trust.
The Company and certain affiliates had been named as defendants in
a putative bondholder class action, Harel Pia Mutual Fund v.
Toyota Motor Corp., et al., filed in the Central District of
California on April 8, 2010, alleging violations of federal
securities laws. The plaintiff filed a voluntary dismissal of the
lawsuit on July 20, 2010.
On July 22, 2010, the same plaintiff refiled the case in
California state court on behalf of purchasers of TMCC bonds
traded on foreign exchanges (Harel Pia Mutual Fund v. Toyota Motor
Corp., et al., Superior Court of California, County of Los
Angeles). The complaint alleged violations of California
securities laws, fraud, breach of fiduciary duty and other state
law claims. On September 15, 2010, the defendants removed the
state court action to the United States District Court for the
Central District of California pursuant to the Securities
Litigation Uniform Standards Act and the Class Action Fairness
Act. Defendants filed a motion to dismiss on October 15, 2010.
After a hearing on January 10, 2011, the court granted the
defendants motion to dismiss with prejudice on January 11, 2011.
At this time, the Company believes that the case will not be
material to holders of any notes of Toyota Auto Receivables 2010-A
Owner Trust; Toyota Auto Receivables 2010-B Owner Trust; and
Toyota Auto Receivables 2010-C Owner Trust.
UNITED FINANCIAL: Law Firm Files Unfair Practices Class Action
--------------------------------------------------------------
Amber Stearns, writing for WIBC, reports a Logansport law firm has
filed an unfair practices class action lawsuit on behalf of a
Fulton County man against an Indianapolis company.
The suit alleges United Financial System Corporation specifically
targeted the elderly all over the state claiming to help them
design wills and trusts that would avoid probate.
Attorney Mario Massillmany with the law firm Starr, Austen, and
Miller says UFSC falsely claimed to use tax attorneys in their
document preparations as required by law.
UFSC processed over 1306 estate plans over three years in Indiana
alone at an average cost of $2500 that Mr. Massillamany says were
fradulently created.
USFC has been doing business in Indiana and 12 other states since
1995. The law firm believes there are thousands of Indiana
residents affected, totaling up to $20 million dollars in
potential losses.
Residents who think they may have a case against USFC are
encouraged to come forward and be added to the suit by calling
Starr, Austen and Miller at 574-722-6676.
UNITED STATES: April 20 Indian Trust Settlement Opt-Out Deadline
----------------------------------------------------------------
The Court-ordered process of notifying individual Indians of their
right to participate in the historic $3.4 billion class action
Settlement, Cobell v. Salazar, is underway. The Settlement
resolves claims related to Individual Indian Money accounts and
land held in trust by the federal government for the benefit of
individual Indians.
Class Members all over the country are receiving detailed
information about their legal rights and options via U.S. Mail.
Information will also be provided through an extensive media
campaign, which includes Native America print media, television
and radio ads, and online advertising.
On December 21, 2010, U.S. Senior District Judge Thomas F. Hogan
granted preliminary approval of the Settlement, setting in motion
a process through which hundreds of thousands of individual
Indians who have or had government-managed IIM accounts or trust
lands may receive some of the $3.4 billion Settlement Fund.
The judge's approval came after Congress passed and the President
signed legislation approving the Settlement. Current estimates
project that most Class Members will receive about $1,800, with
some Class Members receiving much more depending on the level of
activity in their IIM accounts.
The $3.4 billion Settlement was reached between the Departments of
the Interior and Treasury and the individual Indian plaintiffs in
December 2009. The Settlement resolves the government's failure
to provide an historical accounting for IIM accounts and also
resolves claims that the government mismanaged funds and other
trust assets, including royalties owed to individual Indians for
oil, gas, grazing, and other leases of individual Indian lands,
mostly in the West.
The Settlement provides a $1.5 billion fund to compensate an
estimated 500,000 affected individual Indian trust beneficiaries
who have or had IIM accounts or own trust land. The Settlement
creates two groups of Class Members eligible to receive money from
the fund -- the Historical Accounting Class and the Trust
Administration Class.
* The Historical Accounting Class comprises individual Indians
who were alive on September 30, 2009, who had an open IIM account
anytime between October 25, 1994 and September 30, 2009, and whose
account had at least one cash transaction.
* The Trust Administration Class comprises individual Indians
alive on September 30, 2009, who had an IIM Account at any time
from 1985 through September 30, 2009, recorded in currently
available electronic data in federal government systems, as well
as individual Indians who, as of September 30, 2009, had a
recorded or demonstrable interest in land held in trust or
restricted status.
* The estates of deceased Class Members will also receive a
Settlement distribution if the deceased beneficiary's account was
open as of September 30, 2009, or their land interest was open in
probate as of that date. Other eligibility conditions and
requirements for each Class are detailed in the Settlement
Agreement.
Under the Settlement Agreement, $1.9 billion will fund a
Department of the Interior program to buy fractionated interests
in trust or restricted land from willing sellers to benefit tribal
communities and aid in land consolidation. Depending on the level
of participation in the land consolidation program, up to $60
million will be set aside to provide scholarships for higher
education for American Indian and Alaska Native youth.
Information about the Settlement and legal rights is available to
all American Indians and Alaska Natives.
The Web site http://www.IndianTrust.com/and toll-free number 1-
800-961-6109 are available to provide more information about the
Settlement and the legal rights of Class Members. Individuals who
are unsure whether they are included in the Settlement should
visit the Web site or call the toll-free number for more
information.
Class Members who receive a formal notice in the mail about the
Settlement and who are currently receiving IIM account statements
do not have to do anything to receive payment. Individuals who
believe they should be part of the Settlement but do not receive a
notice in the mail or are not receiving IIM account statements
need to fill out a Claim Form as soon as possible, available at
the Indian Trust Web site or by calling the toll-free number.
Individuals wishing to keep their right to sue the federal
government over mismanagement claims covered by the Settlement
must exclude themselves from the Settlement by April 20, 2011.
Class Members can also submit written comments or objections about
any Settlement terms that concern them by April 20, 2011.
* Increasing Employment-Related Suits May Hurt Workers
------------------------------------------------------
Ruth Mantell, writing for Dow Jones Newswires, reports that
companies are facing a growing number of lawsuits related to
discrimination, wages, hours and benefits--a trend that could both
hurt and help workers.
While employment-related lawsuits can lead to better worker
protections, plus bring money for plaintiffs, they can also put
downward pressure on compensation and promotions, experts said.
With suits expected to rise this year, employees--even those who
will never take part in a claim--may be affected, experts said.
The weak economy is a factor in the growing number of lawsuits,
but another reason filings are expected to rise this year: the
Obama administration is likely to increase enforcement of anti-
discrimination laws, according to a recent report on workplace
class actions from law firm Seyfarth Shaw, which represents
management in employment cases.
One sign of the times: A record 99,922 discrimination-charge
filings for private-sector workplaces were filed with the Equal
Employment Opportunity Commission in fiscal 2010, up about 7% from
93,277 a year earlier. The EEOC filed 250 lawsuits in fiscal
2010.
Separately, complaints about wages and hours grew, as Fair Labor
Standards Act lawsuits rose to about 6,800 in 2010 from 6,100 in
2009, with the majority brought as collective or class actions,
according to data compiled by Seyfarth.
"We keep thinking that the wave has crested, but every year the
numbers get larger in terms of volume than they were before," said
Gerald Maatman Jr., an attorney and the main author of the
Seyfarth report. "2011 will top 2010, and we will see more and
bigger cases being brought, especially on wages and hours."
There will also be a gain in areas dominated by single plaintiffs,
Mr. Maatman said. Employment-discrimination suits rose to about
14,600 in 2010 from about 13,700 in 2009, and benefits-related
complaints ticked higher to more than 9,000 Employee Retirement
Income Security Act suits.
The Obama administration has a keen interest in workers' rights --
the first bill the president signed into law was the Lilly
Ledbetter Fair Pay Act, which made it easier for workers to file
charges against employers for wage discrimination. A separate
bill aimed at stamping out wage discrimination failed to move
forward last year in the Senate.
"The Democrats lost the midterm elections and are frustrated in
some respect in terms of new policies and laws, so now their focus
has shifted to enforcement of laws in the courtroom," Mr. Maatman
said.
The weak economy is also playing a role in the rising tide of
lawsuits. Employers that modify benefits packages may face
litigation, according to Seyfarth. And with the persistently high
unemployment rate, some jobless workers have focused on possible
mistreatment by former employers, experts said.
Good For Workers?
But do lawsuits benefit workers? The answer depends on whom you
ask.
Plaintiffs' lawyers say that charges and suits can lead to
enforced rights, plus payments for wronged workers, as companies
clean up their employment practices. Cases brought by individuals
can reflect a firm's less-than-optimal human-resources system.
"If people are filing lawsuits, they are often deciding that their
employer is not listening to their issues," Mr. Maatman said.
Larger lawsuits can help reveal widespread bad practices that
individuals might overlook. "Class actions incentivize people,
usually lawyers, to detect those kinds of practices and bring
claims on behalf of large groups of people," said Deepak Gupta, an
attorney at Public Citizen Litigation Group. "If you have a pay
differential between men and women, and the amount is small, or
maybe employers are cheating on the minimum wage, those might be
large in the aggregate."
Also, class actions can give a voice to those who would otherwise
be afraid to speak. "People are intimidated about coming forward.
They are worried about retaliation. Most people in the workplace
are not going to make these complaints," Mr. Gupta said. "If it's
a small amount for them, then the trade off isn't worth it."
However, settlements in class-action cases can lead to abuses, he
said. In some cases, "the plaintiffs' lawyers sell out the people
they are supposed to be representing," Mr. Gupta said. "They get
attorneys' fees, and the settlement may not be in the best
interest of their client."
Also, some awards may be not be divided fairly, said Scott Witlin,
a Los Angeles attorney with Akin Gump Strauss Hauer and Feld.
When "everybody in the class ends up being treated the same, if
you have a significant claim then you might be hurt because your
recovery isn't as great," Mr. Witlin said.
Pay, Promotions
Some suits can lead to fairer pay. But large suits that demand a
firm's time and money to defend can hurt employees, said Jane
McFetridge, a Chicago employment lawyer.
"That is money that could have been spent on compensation,"
Ms. McFetridge said. "It's not like companies can print money.
If you have this cost, particularly in these difficult economic
times, then that's going to leave less money to be spent on other
things."
Lawrence Lorber, a Washington lawyer who represents employers with
the law firm Proskauer, said hiring and promotions can be impacted
at companies facing class actions.
"It slows down processes because employers have to be aware that
if they promote someone who is not in the plaintiff's class, the
employer may be subject to a retaliation claim," Mr. Lorber said.
"When you have cases going into their second decade and nothing
happens, you have a generation of employees whose careers are held
hostage."
Upcoming Cases
Two cases before the Supreme Court now could have a particularly
strong impact on workers, lawyers say.
First, observers expect a ruling in coming weeks on AT&T Mobility
v. Concepcion. In that case, the plaintiffs filed a class-action
suit against AT&T Mobility for allegedly fraudulent actions, but
the company said such a suit was banned in its agreement with
consumers.
A ruling in favor of AT&T could mean consumers and workers would
be unable to bring a class action in any forum, whether in court
or arbitration, said Public Citizen's Mr. Gupta, who is also
counsel for the Concepcion side.
The U.S. Court of Appeals for the Ninth Circuit said AT&T
Mobility's ban was invalid. The Supreme Court is reviewing that
decision.
"Corporations are increasingly using this novel type of
contractual provision to bar individuals from filing class actions
in any legal forum if they want to obtain a job, purchase a car,
receive a loan, or enter into other transactions," according to
the NAACP Legal Defense and Educational Fund, which filed a brief
with the Supreme Court on the case.
The NAACP cited Brown v. Board of Education to show that class
actions can help the nation progress toward "the Constitutional
aspiration of a 'more perfect Union.'"
"Class-action bans could prove extremely detrimental in many
spheres where class actions have been successful over the past two
decades in redressing civil rights violations," the NAACP said.
Meanwhile, Wal-Mart v. Dukes focuses on questions about the scope
of a class. The suit alleges that Wal-Mart discriminated against
women employees. The class is potentially large: more than a
million workers. A ruling against the company could mean that
such a large class is legitimate, even though there are
differences among the members of the class. A ruling is expected
in coming months.
Joe Sellers, attorney for the plaintiffs in the Wal-Mart case,
said class actions can be efficient. In the Wal-Mart case "the
per-person value of the claim is a little more than $2,000.
That's not very much given the cost of litigation. When these
claims are litigated collectively, you achieve tremendous
efficiencies," Mr. Sellers said.
Theodore Boutrous Jr., a lawyer representing Wal-Mart,
acknowledged that class actions allow employees with the same
experiences to file suit together in a way that is "efficient and
fair." But, he said, this is not the experience in the Wal-mart
case.
"Here the plaintiff's lawyers have gone too far in a way that is
bad for employees and bad for the legal system," Mr. Boutrous
said.
Sometimes class actions can include workers who have no beef with
a company. "It puts the rights of potentially millions of workers
in the hands of a few plaintiffs and their lawyers," Mr. Boutrous
said.
Detecting Patterns of Discrimination
A potential benefit of class-action suits is they can help
identify a pattern or culture of discrimination that would be
difficult to see otherwise.
"Sometimes when you are just looking at one person's incident it's
hard to see that it is part of a pattern the company is engaged
in," said Ariela Migdal, a staff attorney with the American Civil
Liberties Union Foundation. "A class action can help identify
when you have discrimination that results in disparities about
who's hired or how people are paid and promoted."
The plaintiffs' lawyer may help uncover these trends. For
example, in the Wal-Mart case, Mr. Sellers's firm, and other
lawyers representing the plaintiffs, gathered facts for a year,
interviewing hundreds of women and men who had worked at Wal-Mart,
before the complaint was filed.
"What we were attempting to do was to explore whether these
problems that women identified were widespread and how
widespread," Mr. Sellers said.
After the complaint was filed in 2001, Mr. Sellers's firm
conducted formal fact-gathering, a process called "discovery."
Since starting work on the case more than a decade ago the firm
hasn't been paid, Mr. Sellers said.
"That's not a trivial issue. We've had large amounts of out-of-
pocket expenses for experts, for travel. All of that is
unreimbursed and unpaid," Mr. Sellers said. "It's a big
investment, it's a big risk."
Ms. Migdal said that class actions are not guaranteed to solve an
individual's problems.
"What you can do is get the company as a whole to change its
hiring, promotion and pay practices," Ms. Migdal said. "Class
actions address company-wide policies that can't necessarily be
addressed by going to the store manager."
* Investor & Consumer Class Actions in Australia to Increase
------------------------------------------------------------
Sue Lannin, writing for ABC News, reports a major law firm is
warning of an explosion in class action lawsuits by investors and
consumers in Australia.
The Blake Dawson firm says there is a risk of a US-style
litigation culture with unregulated legal financiers shopping
around for cases.
Major companies such as cardboard box maker Amcor, ANZ and the
National Australia Bank are all facing class actions.
Class action law firms say while the size of the claims may be
bigger, there is no big jump in the number of cases.
Blake Dawson partner John Emmerig says class actions are
increasing.
"The environment is dominated largely by shareholder class
actions, product liability class actions and some emerging actions
in areas such as the environment," he said.
"So it's really a very active area and an area that's really
exploded since about 2006."
But Slater & Gordon director Ken Fowlie disputes that.
"There's not about to be an explosion of shareholder class actions
in Australia," he said.
"What we're seeing is a moderate increase in shareholder claims to
reflect the level of activity during and following the great
financial crash."
A study done by Professor Vince Morabito from Monash University
found 254 class actions were filed in the Federal Court from 1992
until June 2009, but the number dropped in the later years of the
study.
He says there were about 20 class actions filed last year --
higher than the average of 14 cases a year.
Companies, including resources firm Oz Minerals and shopping
centre owner Centro, are being sued for allegedly misleading
shareholders.
Litigation funders
Mr. Emmerig has advised corporations defending class actions. He
argues unregulated litigation funders are driving many cases.
"The High Court in 2006 changed a law to allow litigation funders
to fund these actions and there's a huge financial motivation for
funders in doing so because they take generally between 20 to 45
per cent of a settlement or judgment from these claims," he said.
Litigation funder IMF Australia is well-known for funding some of
Australia's biggest class actions such as the $145 million payout
to investors from poker machine maker Aristocrat Leisure.
IMF has around 10 class actions on the go.
Executive director John Walker says he only finances cases on
their merit but they do need to get a return.
"IMF Australia is a listed company. We fund litigation for
profit. That is our principle motive," Mr. Walker said.
"We have had a recently good track record in choosing which cases
ought to proceed.
"I would say there are far more unmeritorious defenses that are
put on in respect of these claims that ought not to be put on."
*********
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 * * *