/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/110202.mbx C L A S S A C T I O N R E P O R T E R Wednesday, February 2, 2011, Vol. 13, No. 23 Headlines ACCURAY INC: Motion to Dismiss Securities Suit Still Pending ADOBE SYSTEMS: Court Dismisses Consolidated Suit Over Omniture Buy BLUE CROSS: March 2 Class Action Consolidation Hearing Set COUNTRYWIDE FINANCIAL: Faces Securities Class Action in Conn. GENOPTIX INC: Being Sold to Novartis for Too Little, Suit Claims HARRIS CORP: Continues to Defend Consolidated Securities Suit HILL-ROM HOLDINGS: Appeal of Batesville Suit Dismissal Pending HOUSEHOLD GOODS: Class Action Settlement Gets Preliminary Okay INTELIUS: Accused of Publishing False Criminal Records KEE ACTION: Recalls 1,400 BT SA-17 Paintball Gun/Marker KV PHARMA: Class Action Over Adulterated Medicine May Proceed LENNOX INDUSTRIES: June 2 Class Action Settlement Hearing Set MICROSOFT CORP: Appeal From Certification of Canadian Suit Pending NATIONAL COLLEGIATE: Sued for Violations of Federal Antitrust Laws NETFLIX INC: Sued for Violation of Calif. Customer Records Act NOVARTIS AG: US Unit Remains a Defendant in Zelnorm Suit in Canada NOVARTIS AG: Conference on NPC Certiorari Petition Set for Feb. 18 NOVARTIS AG: Dismissal of Texas State Class Suits on Appeal PHILIPS ELECTRONICS: May 2 Hearing on BPA Baby Bottle Settlement RCA RUBBER: Sued for Terminating Retiree Medical Benefits REDBOX AUTOMATED: Class Action Lead Plaintiff Gets New Counsel SMURFIT-STONE: D&Os Sued for Breach of Fiduciary Duties SYMANTEC CORP: Sued Over Deceptive Sale of "Download Insurance" TYCO INTERNATIONAL: Recognizes $7MM Net Gain on Adjusted Reserves TYCO INTERNATIONAL: Appeal Pending on Dealer Lawsuit Verdict UPONOR INC: May Face Class Action Over Pex Plumbing Fittings VIACOM: Agrees to Settle Class Action for $2.75 Million * Lawsuit Filings in Madison County Down by 125 Cases in 2010 ********* ACCURAY INC: Motion to Dismiss Securities Suit Still Pending ------------------------------------------------------------ Accuray Incorporated's motion to dismiss an amended complaint filed by plaintiffs in a consolidated securities class action lawsuit in California remains pending. On July 22, 2009, a securities class action lawsuit was filed in the U.S. District Court for the Northern District of California against the Company and certain of its current and former directors and officers. On August 7, 2009 and August 9, 2009, two securities class action complaints, both similar to the one filed on July 22, 2009, were filed against the same defendants in the same court. These three actions were consolidated. The consolidated complaint generally alleges that the Company and the individual defendants made false or misleading public statements regarding the Company's operations and seek unspecified monetary damages and other relief. On August 31, 2010, the Court granted defendants' motion to dismiss the consolidated complaint and granted plaintiffs leave to file an amended complaint. On September 27, 2010, plaintiffs filed an amended complaint. The amended complaint names the Company and certain of its current and former officers and directors as defendants and generally alleges that the defendants made false or misleading public statements regarding the Company's operations. The amended complaint seeks unspecified monetary damages and other relief. Defendants have filed a motion to dismiss the amended complaint. No updates were reported in the Company's Jan. 27, 2011, Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. ADOBE SYSTEMS: Court Dismisses Consolidated Suit Over Omniture Buy ------------------------------------------------------------------ A Utah court has dismissed a consolidated class action against Adobe Systems Inc. at a November 2010 hearing, according to the Company's Jan. 27, 2010, Form 10-K filed with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 3, 2010. Between September 23, 2009 and September 25, 2009, three putative class action lawsuits were filed in the Fourth Judicial District Court for Utah County, Provo Department, State of Utah, seeking to enjoin Adobe's acquisition of Omniture, Inc. and to recover damages in the event the transaction were to close. The cases were captioned Miner v. Omniture, Inc., et. al., Barrell v. Omniture, Inc. et. al., and Lodhia v. Omniture, Inc. et al. At a hearing on October 20, 2009, the court consolidated the Miner, Barrell, and Lodhia cases into a single case under the Lodhia caption and denied the plaintiffs' motion to preliminarily enjoin the closing of the transaction. On December 30, 2009, the plaintiffs served the defendants with a consolidated amended complaint for damages arising out of the closing of the transaction. In the consolidated amended complaint, plaintiffs alleged that the members of Omniture's board of directors breached their fiduciary duties to Omniture's stockholders by failing to seek the highest possible price for Omniture and that both Adobe and Omniture induced or aided and abetted in the alleged breach. The plaintiffs also alleged that the Schedule 14D-9 Solicitation/Recommendation Statement filed by Omniture on September 24, 2009 in connection with the transaction contained inadequate disclosures and was materially misleading. Plaintiffs sought unspecified damages on behalf of the former public stockholders of Omniture. On March 8, 2010, Adobe and the other defendants moved to dismiss the complaint for failure to state a claim. The court heard oral argument on the motion in November 2010 and the court granted the defendants' motion to dismiss the complaint with prejudice. Adobe Systems Incorporated -- http://www.adobe.com/-- is a diversified software companies. The company offers a line of creative, business and mobile software and services used by creative professionals, knowledge workers, consumers, original equipment manufacturer (OEM) partners, developers and enterprises for creating, managing, delivering and engaging with content and experiences across multiple operating systems, devices and media. BLUE CROSS: March 2 Class Action Consolidation Hearing Set ---------------------------------------------------------- Chad Halcom, writing for Crain's Detroit Business, reports a recent pile-on of prospective class-action lawsuits against Blue Cross Blue Shield of Michigan over its favorable charging agreements with health care providers could merge into one more orderly case in weeks, attorneys said. At least four lawsuits seeking more than $20 million in combined damages have been filed since October against the insurance company over its "most favored nation" contracts with hospitals, although one case already has been dismissed and a fifth case is still taking shape. Most-favored nation agreements are billing arrangements Blue Cross allegedly began making with Michigan's 131 hospitals in 2007, either for the carrier to match any price a competing private insurer pays on medical services or requiring hospitals to charge competitors more than Blue Cross -- usually by a set percentage. But is there one cohesive class that can be made out of four lawsuits? "It's a real chess game right now, with all of the competing interests," said Gregory Drutchas, principal at Detroit-based Kitch Drutchas Wagner Valitutti & Sherbrook PC and head of its health care practice. "There's probably not a county in this state that some attorney couldn't find a plaintiff -- employer or insurer. But consolidating all the cases could mix some winners with some losers, or spoil the whole case. "I'm sure Blue Cross has some lawyers who are really thinking out every move here. Because what you do very early on could set the whole tone." All of the cases filed so far largely mirror the U.S. Department of Justice and Michigan attorney general's joint antitrust lawsuit against Blue Cross but seek specific damages on behalf of other insurers or insured businesses. Attorneys in most, if not all, of the lawsuits expect to appear March 2 before U.S. District Judge Denise Page Hood on a motion for consolidation. "We are going to have to prove some of the same things, but the government is after injunctive relief to stop the practice, and we have specific monetary damages to assert," said Jason Thompson, partner at Sommers Schwartz PC and chairman of its complex litigation department, who brought the latest class-action lawsuit on behalf of the City of Pontiac earlier this month. Pontiac, which is self-insured and has used Humana Inc. as a third-party claims administrator since ending its Blue Cross relationship in 2008, is now suing the insurer and 22 Michigan hospitals alleged to have "most favored nation-plus" agreements with Blue Cross in a lawsuit before U.S. District Judge Steven Murphy. The plus agreements allegedly caused hospitals to charge Blue Cross' competitors more than 20 percent above Blue Cross for services at William Beaumont Hospitals in Royal Oak and St. John Providence Health System in Warren, to as much as 39 percent more at Covenant Medical Center in Saginaw, according to government and class-action lawsuits. More conventional most-favored nation agreements allegedly required only that Blue Cross get a billing rate at least equal to any other insurer. Also suing are Hillsdale-based The Shane Group Inc. and Bradley Veneberg of Munising in an Oct. 29 lawsuit, and the Michigan Regional Council of Carpenters Employee Assistance Fund along with the Abatement Workers National Health and Welfare Fund and Monroe Plumbers & Pipefitter Local 671 Welfare Fund in a Dec. 8 lawsuit. A fourth case over most-favored nation status was filed Nov. 22 by Frankenmuth Mutual Insurance Co. but withdrawn the same week; Haverford, Pa.-based Chimicles & Tikellis LLP is seeking plaintiffs who received care at any of at least 18 Michigan hospitals for a "potential" lawsuit against Blue Cross. "We continue to believe the government's lawsuit is deficient and should be dismissed. (And) while we haven't responded formally to the civil suits, our position is that they ignore the benefits of negotiating for the deepest possible discounts for Michigan customers," said Helen Stojic, director of corporate affairs for the Blues. "Piggyback plaintiff lawsuits are not a surprise or unusual in these circumstances." The Justice Department and attorney general found that in 2007 Blue Cross had threatened to cut payments up to 16% to 45 small and rural hospitals if they did not take most-favored nation contracts. Blue Cross made a motion to dismiss that case, which is up for a hearing before Judge Hood on March 2. Judge Hood also expects to hear a motion to consolidate all the prospective class actions and appoint a lead counsel later the same day, and plaintiff attorneys said they are in an ongoing dialogue about combining their efforts. Andrew Wachler, president of Wachler & Associates PC in Royal Oak, said the Blues could mount an argument that a dispute over billing rates belongs before the state Office of Financial and Insurance Regulation, not in court, under the state Public Act 350 of 1980, which creates a method for administrative appeals. "If you show that the Blues failed to serve a class or fulfill its duties under (that law), you can file an administrative appeal to require the Blues to change their policies," he said. "I think you could challenge them there on something like this, but then you wouldn't make as much money as you could by challenging the practice this way." COUNTRYWIDE FINANCIAL: Faces Securities Class Action in Conn. ------------------------------------------------------------- Scott+Scott LLP on Jan 28 disclosed that a class action has been commenced on behalf of purchasers of certain mortgage-backed securities sponsored by affiliates of Countrywide Financial Corporation and its wholly owned subsidiary Countrywide Home Loans, Inc. (collectively, "Countrywide") and related trusts (the "Issuing Trusts"), issued between 2005 and 2007. The class action complaint, which alleges violations of the Securities Act of 1933 (the "Securities Act"), Securities Exchange Act of 1934 (the "Exchange Act") and the Connecticut Uniform Securities Act, was filed in the U.S. District Court for the District of Connecticut. If you wish to serve as a lead plaintiff in the action, you must move the Court no later than March 30, 2011. Any member of the investor class may move the Court to serve as lead plaintiff through counsel of its choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action or have questions concerning this notice or your rights, please contact: Scott+Scott Telephone: (800) 404-7770 (860) 537-5537 E-mail: scottlaw@scott-scott.com Web site: http://www.scott-scott.com/ for more information. There is no cost or fee to you. The Complaint alleges claims under the Securities Act and Exchange Act on behalf of investors who purchased or otherwise acquired the following Countrywide mortgage pass-through certificates (the "Class"): Alternative Loan Trust Certificates CWALT 2005-43, CWALT 2007-1T1, CWALT 2007-12T1 and CWALT 2007-25 issued by CWALT, Inc. ("CWALT"); and Mortgage Pass-Through Trust Certificates CWHL 2006- HYB2, CWHL 2006-12, CWHL 2007-J2 and CWHL 2007-17 by CWMBS, Inc. ("CWMBS") (collectively referred to as the "Certificates"). The Complaint alleges that Countrywide, including certain officers and directors of CWALT and CWMBS, misrepresented the quality of the underlying mortgages that had been pooled and placed in the issuing trusts in each of the Certificates' offering documents. The Complaint also alleges that Countrywide did not follow the underwriting and appraisal standards described in the Registration Statements and Prospectus Supplements when issuing mortgages to borrowers. Moreover, the mortgages held by the Issuing Trusts and underlying the Certificates were issued based on appraisals that overstated the value of the underlying properties, thereby exposing the Issuing Trusts and the Class to greater risk of losses in the event of foreclosure. As a result of the material misrepresentations and omissions in the Registration Statements and Prospectus Supplements, the Class purchased securities that were far riskier investments than represented. According to the Complaint, by mid-2007 the mortgages held by the Issuing Trusts and underlying the Certificates began suffering accelerating delinquencies and defaults. The defaults led to real estate foreclosures, which revealed that many borrowers did not have sufficient financial resources to satisfy their mortgage payments and that the properties underlying the mortgages were worth materially less than the loans issued. The representations made in the Registration Statements and Prospectus Supplements were materially false and misleading because at the time of the Certificates offerings, Countrywide's underwriting standards were not designed to evaluate borrowers' ability to repay their loans or to accurately assess the value of the mortgaged property underlying the Certificates. These adverse factors were not revealed and/or adequately addressed in the offering documents. Had the Class known these truths, they would not have purchased the Certificates, or they would not have purchased them at the prices that were paid. Scott+Scott has significant experience in prosecuting major securities, antitrust and employee retirement plan actions throughout the United States. The firm represents pension funds, foundations, individuals and other entities worldwide. GENOPTIX INC: Being Sold to Novartis for Too Little, Suit Claims ---------------------------------------------------------------- Courthouse News Service reports that shareholders says Carlsbad- based Genoptix is selling itself too cheaply to Novartis, for $25 a share or $470 million. A copy of the Complaint in Schwitters v. Genoptix, Inc., et al., Case No. 37-2011-00050783 (Calif. Super. Ct., San Diego Cty.), is available at: http://www.courthousenews.com/2011/01/28/SCA.pdf The Plaintiff is represented by: Frank K. Johnson, Esq. Shawn E. Fields, Esq. JOHNSON BOTTINI LLP 501 West Broadway, Suite 1720 San Diego, CA 92101 Telephone: (619) 230-0063 - and - Willie C. Briscoe, Esq. THE BRISCOE LAW FIRM, PLLC 8117 Preston Road, Suite 300 Dallas, TX 75225 Telephone: (214) 706-9314 - and - Patrick W. Powers, Esq. POWERS TAYLOR LLP Campbell Centre II 8150 N. Central Expressway, Suite 1575 Dallas, TX 75206 Telephone: (214) 239-8900 HARRIS CORP: Continues to Defend Consolidated Securities Suit ------------------------------------------------------------- Harris Corp. and its subsidiary continue to defend a consolidated federal securities class action complaint filed in the U.S. District Court for the District of Delaware, according to the company's Jan. 27, 2011, Form 10-Q filed with the Securities and Exchange Commission for the quarter ended December 31, 2010. Harris Stratex Networks, Inc. (now known as Aviat Networks, Inc.) and certain of its current and former officers and directors, including certain current Harris officers, were named as defendants in a federal securities class action complaint filed on September 15, 2008, in the United States District Court for the District of Delaware by plaintiff Norfolk County Retirement System on behalf of an alleged class of purchasers of HSTX securities from January 29, 2007 to July 30, 2008, including shareholders of Stratex Networks, Inc. who exchanged shares of Stratex for shares of HSTX as part of the combination between Stratex and the Company's former Microwave Communications Division to form HSTX. Similar complaints were filed in the United States District Court for the District of Delaware on October 6, 2008 and October 30, 2008. The complaints were consolidated in a slightly expanded complaint filed on July 29, 2009 that, among other things, added Harris Corporation as a defendant. This action relates to public disclosures made by HSTX on January 30, 2007 and July 30, 2008, which included the restatement of HSTX's financial statements for the first three fiscal quarters of its fiscal 2008 and for its fiscal years ended June 29, 2007, June 30, 2006 and July 1, 2005 due to accounting errors. The consolidated complaint alleged violations of Section 10(b) and Section 20(a) of the Exchange Act and of Rule 10b-5 promulgated thereunder, as well as violations of Section 11 and Section 15 of the Securities Act, and sought, among other relief, determinations that the action is a proper class action, unspecified compensatory damages and reasonable attorneys' fees and costs. The Company believes that the defendants have meritorious defenses to these actions and the defendants intend to defend the litigation vigorously. HILL-ROM HOLDINGS: Appeal of Batesville Suit Dismissal Pending -------------------------------------------------------------- An appeal of a court ruling dismissing claims filed against Hill- Rom Holdings, Inc., in a lawsuit over casket purchases remains pending. In 2005 the Funeral Consumers Alliance, Inc. and a number of individual consumer casket purchasers filed a purported class action antitrust lawsuit on behalf of certain consumer purchasers of Batesville(R) caskets against the Company and its former Batesville Casket Company, Inc. subsidiary (now wholly-owned by Hillenbrand, Inc.), and three national funeral home businesses. The district court has dismissed the claims and denied class certification, but in October 2010, these decisions were appealed to the United States Court of Appeals for the Fifth Circuit. If the plaintiffs were to succeed in reversing the district court's dismissal of the claims, but not the denial of class certification, then the plaintiffs would be able to pursue individual damages claims: the alleged overcharges on the plaintiffs' individual casket purchases, which would be trebled as a matter of law, plus reasonable attorneys fees and costs. If the plaintiffs were to (1) succeed in reversing the district court's dismissal of the claims, (2) succeed in reversing the district court order denying class certification and certify a class, and (3) prevail at trial, then the damages awarded to the plaintiffs, which would be trebled as a matter of law, could have a significant material adverse effect on the Company's results of operations, financial condition and/or liquidity. The plaintiffs in the FCA Action filed a report indicating that they are seeking damages ranging from approximately $947.0 million to approximately $1.46 billion before trebling on behalf of the purported class of consumers they seek to represent, based on claims of approximately one million casket purchases by the purported class members. The Company and Hillenbrand, Inc., have entered into a Judgment Sharing Agreement that apportions the costs and any potential liabilities associated with this litigation between them. The Company believes that it has committed no wrongdoing as alleged by the plaintiffs and that it has meritorious defenses to class certification and to plaintiffs' underlying allegations and damage theories. No updates were reported in the Company's Jan. 27, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. HOUSEHOLD GOODS: Class Action Settlement Gets Preliminary Okay -------------------------------------------------------------- Truckinginfo reports a federal court has preliminarily approved a class action lawsuit settlement against several van lines for allegedly violating antitrust regulations. The Household Goods Movers Antitrust class action lawsuit concerns the assessment of fuel surcharges on certain interstate shipments of household goods. Plaintiffs in the case allege that the defendants set an inflated price for fuel surcharges charged to shippers for those shipments under a tariff named Tariff 400N. The defendants in the class action lawsuit -- American Moving & Storage, Atlas Van Lines, Mayflower Transit, United Van Lines or Wheaton Van Lines -- deny any wrongdoing but have agreed to a $40 million class action settlement resolve the litigation, claims the law firm initiating the litigation. The violations of the Tariff allegedly took place from March 19, 2003 through December 31, 2007. INTELIUS: Accused of Publishing False Criminal Records ------------------------------------------------------- Chie Akiba at Courthouse News Service reports that a class action accuses Intelius, a software and "information commerce" company, of publishing false criminal records through its Date Check smart phone app. Paul Geller claims Date Check defamed him by reporting he has "18 criminal records," though his only legal infraction was a traffic ticket that was dismissed after traffic school. What's more, Mr. Geller says, Date Check spits out different records on different smart phones, and has an incentive to publish incorrect information, as it charges money for a supposedly more thorough check. Intelius claims that its Date Check app allows users to check a person's criminal record by entering their name, phone number or email address. But Mr. Geller, as class representative, says Intelius "published false, salacious, and/or misleading statements indicating that plaintiff and the class members had criminal records when they did not." And the result comes up differently, depending on the smart phone, according to the Superior Court complaint. "Intelius markets the Date Check app as a software tool to 'instantly check for criminal convictions and sex offenses,'" Mr. Geller says. Citing information from Intelius' website, the complaint states that Intelius pushes its Date Check app so people can check out the people they date. "Today's dating scene it tough to navigate, which is why Intelius developed Date Check, a free mobile app that deciphers fact from fiction in the palm of your hand," the complaint states, attributing the citation to the intelius.com web site, on Jan. 21. Still quoting from the website, the complaint continues: "Simply enter a name, phone number or email address and instantly get accurate and comprehensive results. With features like Sleaze Detector, Compatibility, $$$, Interests and Living Situation, you can be in the know on the go. 'Look up before you hook up.'" Mr. Geller claims that he used the app on his Android smart phone on Dec. 20, 2010, and was misinformed that he had 16 criminal records. When he checked again on Jan. 17, he says, "this time the app reported that he had '18 criminal records.'" But "in reality, plaintiff has no criminal records," Mr. Geller says. "Mr. Geller had one traffic infraction in 2002 which was dismissed after he attended traffic school. "Intelius knows that Mr. Geller and numerous others in its system do not have criminal records, and yet it reports the contrary. When Mr. Geller's phone number is entered into the Date Check app on an iPhone, the system indicated that he had '2 Infraction Records,' '0 Felony Records,' '0 Misdemeanor Records,' '0 Violation Records,' and '0 Traffic Records.'" Intelius markets itself as an "information commerce company," according to the complaint. Mr. Geller says Intelius has "an incentive for allowing false information about persons' criminal records in its database(s). In order for a person to determine exactly what the 'criminal records' are they may run a more comprehensive search. However, Intelius charges between $14.95 and $19.95 for such a search. Based on information and belief, a large number of persons who run the Date Check app on a person and see that the person has a criminal record, then also pay Intelius to see the content of that record. "Moreover, the purchased report oftentimes contains different information than reported on the Date Check app. For instance, the paid-for report on plaintiff, which cost $14.95, showed that he had no criminal records and only a single traffic ticket." Mr. Geller seeks an injunction and punitive damages for defamation, consumer law violations and unfair business practices. Mr. Geller is represented by: David Parisi, Esq. PARISI & HAVENS LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: (818) 990-1299 KEE ACTION: Recalls 1,400 BT SA-17 Paintball Gun/Marker ------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with KEE Action Sports LLC, of Sewell, N.J., announced a voluntary recall of about 1,400 BT SA-17 Paintball Gun/Marker. Consumers should stop using recalled products immediately unless otherwise instructed. When users attempt to pierce the CO2 cartridge by closing the lever to the cartridge chamber, the cartridge can fly out of the marker, posing an injury hazard to consumers. No injuries or incidents have been reported. This recall involves paintball gun/marker made of aluminum and resembles a pistol. It is black with model number BT SA-17 printed on both sides. It uses a horizontally-fed magazine and requires a 12g CO2 cartridge. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11112.html The recalled products were manufactured in Taiwan and sold through paintball fields/arenas, stores and retailers from May 2010 through August 2010 for about $130. Consumers should immediately stop using the recalled paintball markers. Consumers can return the markers to KEE or the retailer from which the product was purchased for a free repair or contact KEE for the repair parts and installation instructions. For additional information, contact KEE Action Sports at (800) 220- 3222 between 9:00 a.m. and 5:00 p.m., Central Time, or visit KEE's customer service Web site at http://www.paintballsolutions.com/ KV PHARMA: Class Action Over Adulterated Medicine May Proceed ------------------------------------------------------------- Stephanie Maniscalco, writing for Dolan Media Newswires, reports a consumer who bought adulterated medicine could continue with his state law claims against a Missouri drug manufacturer, the United States Court of Appeals for the Eight Circuit has held. The 8th Circuit reined in the controversial use of preemption by reversing a district court decision that the consumer's Missouri Merchandising Practices Act claims were preempted by federal law. The state law claims were not impliedly preempted, the court found, relying on the 2009 U.S. Supreme Court decision, Wyeth v. Levine. "The Court's comments in Wyeth regarding drugs and drug labeling strongly imply that field preemption does not apply in the present case. Specifically, in relating the history of federal regulation of drugs and drug labeling, the Court recognized that when Congress first enacted the Federal Food and Drugs Act, Congress 'supplemented the protection for consumers already provided by state regulation and common-law liability,'" Judge Lavenski R. Smith wrote, citing Wyeth. "When Congress enacted an express preemption provision for medical devices, it declined to do so for prescription drugs . . . Nor has Congress ever provided a federal remedy for consumers harmed by ineffective drugs," the 8th Circuit explained. Adulterated drug Allen LeFaivre, a purchaser of a hypertension medication, sought actual and punitive damages in a class action against Missouri- based KV Pharmaceutical. The lawsuit came after the Food and Drug Administration filed a complaint against the company for failing to meet FDA standards. KV stipulated that it had sold drugs that were "adulterated," meaning they did not meet federal manufacturing requirements. Since proper quality control procedures were not used, the manufacturer destroyed the remaining stock of the drug and issued a recall to retail outlets, but not to individual consumers. Mr. LeFaivre alleged a breach of the implied warranty of merchantability and violations of the MMPA. He argued that the medicine was not "merchantable," because it was adulterated, and that the manufacturer concealed this fact when selling the drug in Missouri. KV moved to dismiss the case, arguing that Mr. LeFaivre's claims were essentially claims for violations of federal regulations and that no private cause of action existed. The 8th Circuit, however, found that the "federal statutory or regulatory scheme" was not "so pervasive in scope that it occupies the field." "To the contrary, 'the FDA [has] traditionally regarded state law as a complementary form of drug regulation' and has 'long maintained that state law offers an additional, and important, layer of consumer protection that complements FDA regulation,'" Judge Smith wrote. The 8th Circuit also noted that it was not physically impossible for KV to comply with both the state and federal law in this case. The case is LeFaivre v. KV Pharmaceutical Company, et al. LENNOX INDUSTRIES: June 2 Class Action Settlement Hearing Set ------------------------------------------------------------- A Settlement has been reached in a class action lawsuit in the United States District Court for the Northern District of California involving Superior and Lennox brand single pane, sealed glass front fireplaces. Eligible consumers who have one or more Superior or Lennox brand single-pane sealed glass front gas fireplaces can now file a claim to get benefits. Generally, with some exceptions, a consumer is considered a member of the Settlement Class and is eligible to file a claim for benefits if he or she is a resident of the US (including California), who owns a home or other residential property that was purchased for personal, family, or household purposes, and whose home has one or more Superior or Lennox brand single-pane sealed glass front gas fireplaces installed between February 6, 2004 and January 11, 2011. Also included are residents of California who own a home or other residential property for personal, family, or household purposes, and whose home has one or more Superior single-pane sealed glass front gas fireplaces that were installed between March 1, 2003 and February 5, 2004. In accordance with the claims process, Settlement Class members who submit a valid claim will be provided with a protective screen that is intended to reduce the risk of burns to the skin by preventing direct contact with the glass front. Eligible Settlement Class members will also receive supplemental information about the safety of their fireplace(s) and a warning sticker to place on their fireplace control(s). Settlement Class members must file a claim to receive these benefits. More details about the Settlement and how to file a claim are available at http://www.LennoxHearthClass.com/or by calling 1- 877-896-4837. The legal rights of Settlement Class members will be affected regardless of whether they take any action. Settlement Class members that do nothing will stay in the Class, will not get any benefits, and will give up their right to sue the Defendants for the claims being resolved by this Settlement. Settlement Class members that want to keep their right to sue the Defendants about the claims in this case must exclude themselves from the Settlement by no later than May 2, 2011. Those wishing to stay in the Settlement Class may object to the Settlement no later than May 2, 2011. Those wishing to stay in the Settlement Class and obtain benefits must submit claim forms no later than August 1, 2011 or 60 days after the final approval hearing, whichever comes later. The Court has scheduled a final approval hearing for June 2, 2011. At that hearing, the Court will consider whether to grant final approval of the Settlement and award attorneys' fees. All potential Settlement Class members are encouraged to visit http://www.LennoxHearthClass.com/or call 1-877-896-4837 to determine if they are included in the Settlement and to obtain information about their legal rights. To receive updates to their mobile phone, Settlement Class members can also text "Lennox" to 41513. Standard text messaging rates may apply. MICROSOFT CORP: Appeal From Certification of Canadian Suit Pending ------------------------------------------------------------------ Microsoft Corporation's appeal from a Canadian court's certification of a class action lawsuit remains pending, according to the Company's Jan. 27, 2011 Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. A large number of antitrust and unfair competition class action lawsuits were filed against Microsoft in various state, federal, and Canadian courts on behalf of various classes of direct and indirect purchasers of its PC operating system and certain other software products. The Company obtained dismissals of damages claims of indirect purchasers under federal law and in 15 states. Courts refused to certify classes in two additional states. The Company have reached agreements to settle all claims that have been made to date in 19 states and the District of Columbia. The settlements in all states have received final court approval. Under the settlements, generally class members can obtain vouchers that entitle them to be reimbursed for purchases of a wide variety of platform-neutral computer hardware and software. The total value of vouchers that Microsoft may issue varies by state. The Company will make available to certain schools a percentage of those vouchers that are not issued or claimed. The total value of vouchers the Company ultimately issue will depend on the number of class members who make claims and are issued vouchers. The maximum value of vouchers to be issued is approximately $2.7 billion. The actual costs of these settlements will be less than that maximum amount, depending on the number of class members and schools that are issued and redeem vouchers. The Company estimate the total cost to resolve all of the state overcharge class action cases will range between $1.9 billion and $2.0 billion. At December 31, 2010, the Company has recorded a liability related to these claims of approximately $593 million, which reflects its estimated exposure of $1.9 billion less payments made to date of approximately $1.3 billion mostly for vouchers, legal fees, and administrative expenses. The three cases pending in British Columbia, Ontario, and Quebec, Canada have not been settled. In March 2010, the court in the British Columbia case certified it as a class action. The Company has appealed this ruling. The other two actions have been stayed. NATIONAL COLLEGIATE: Sued for Violations of Federal Antitrust Laws ----------------------------------------------------------------- Oscar P. Robertson, Tate George, and Ray Ellis, on behalf of themselves and others similarly situated v. National Collegiate Athletic Association, et al., Case No. 11-cv-00388 (N.D. Calif. January 26, 2011), bring claims against the NCAA, Electronics Arts, Inc., and Collegiate Licensing Company, the NCAA's licensing arm, for violations of the federal antitrust laws. The former college athletes said defendants NCAA, Electronics Arts, Inc., and Collegiate Licensing Company (the NCAA's licensing arm), engaged in a price-fixing conspiracy and a group boycott/refusal to deal that has unlawfully foreclosed class members from receiving compensation "in connection with the commercial exploitation of their images, likenesses and/or names following their cessation of intercollegiate athletic competition." The plaintiffs also set forth a claim for unjust enrichment and request that the Court require the defendants to provide an accounting of ill-gotten gains and the monies unlawfully withheld from the antitrust class members. Mr. Robertson competed on the University of Cincinnati's men's basketball team in the 1957-58, 1958-59, and 1959-60 seasons, and was the first player in history to lead the NCAA in scoring for three straight years. Mr. Robertson also played 10 years with the Cincinnati Royals and 4 years with the Milwaukee Bucks in the National Basketball Association, and is generally considered the greatest all-around player in the history of the sport. Mr. George was a starting guard of the University of Connecticut's basketball team beginning in the 1986-87 through 1989-90 seasons, and is the school's all-time career assist leader. He also played for five seasons in the NBA. Mr. Ellis was a defensive back of The Ohio State University's football team from the 1976 through 1979 seasons, including in the 1980 Rose Bowl Game. The Plaintiffs are represented by: Stanley M. Chesley, Esq. W.B. (Bill) Markovtis, Esq. WAITE, SCHNEIDER, BAYLESS & CHESLEY 1513 Fourth & Vine Tower 1 West Fourth Street Cincinnati, OH 45202 Telephone: (513) 621-0267 E-mail: stanchesley@wsbclaw.com billmarkovits@wsbclaw.com - and - Michael P. Lehrmann, Esq. Jon T. King, Esq. Arthur N. Bailey, Jr., Esq. HAUSFELD LLP 44 Montgomery Street, Suite 3400 San Francisco, CA 94104 Telephone: (415) 633-1908 E-mail: mlehmann@hausfeldllp.com jking@hausfeldllp.com abailey@hausfeldllp.com - and - Michael D. Hausfeld, Esq. Hilary K. Scherrer, Esq. HAUSFELD LLP 1700 K Street, NW, Suite 650 Washington, DC 20006 Telephone: (202) 540-7200 E-mail: mhausfeld@hausfeldllp.com NETFLIX INC: Sued for Violation of Calif. Customer Records Act -------------------------------------------------------------- Jeff Milans, individually and on behalf of others similarly situated v. Netflix, Inc., Case No. 11-cv-00379 (N.D. Calif. January 26, 2011), accuses Netflix of unlawfully retaining its subscribers' personally identifiable information and video programming viewing histories after subscribers have canceled their subscriptions, in violation of the Video Privacy Protection Act and the California Customer Records Act. The Complaint says defendant continues to profit from selling Plaintiff and the Class' information to third parties. Netflix owns and operates the Web site www.Netflix.com, which provides streaming video via the Internet and online video rental services to over 10 million subscribers. The Plaintiff is represented by: Sean Reis, Esq. EDELSON McGUIRE, LLP 30021 Tomas Street, Suite 300 Rancho Santa Margarita, CA 92688 Telephone: (949) 459-2124 E-mail: sreis@edelson.com - and - Jay Edelson, Esq. Rafey S. Balabanian, Esq. William C. Gray, Esq. Benjamin H. Richman, Esq. EDELSON McGUIRE, LLC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 E-mail: jedelson@edelson.com rbalabanian@edelson.com wgray@eelson.com brichman@edelson.com NOVARTIS AG: US Unit Remains a Defendant in Zelnorm Suit in Canada ------------------------------------------------------------------ Novartis Pharmaceuticals Corporation, a subsidiary of Novartis AG, together with other Novartis subsidiaries are defendants in approximately 135 cases brought in US and Canadian courts in which plaintiffs claim to have experienced cardiovascular injuries after being treated with Zelnorm, a medicine for irritable bowel syndrome and chronic constipation. A purported national class action was filed against a Novartis subsidiary in Canada. A statement to defend was filed in this action, according to Novartis' Jan. 27, 2010, Form 20-F filed with the Securities and Exchange Commission for the fiscal year ended December 31, 2010. In May 2010, NPC reached a tentative agreement to settle 124 cases, which is contingent on obtaining consents from the individual plaintiffs. NPC is still waiting for such consents. One trial is currently scheduled for April 2011. NOVARTIS AG: Conference on NPC Certiorari Petition Set for Feb. 18 ------------------------------------------------------------------ The U.S. Supreme Court will hold a conference on Feb. 18, 2010, to consider a certiorari petition filed by Novartis Pharmaceuticals Corporation, a subsidiary of Novartis AG, according to Novartis' Jan. 27, 2010, Form 20-F filed with the Securities and Exchange Commission for the fiscal year ended December 31, 2010. Certain pharmaceutical sales representatives filed suit in a state court in California and in the US Federal District Court for the Southern District of New York (SDNY) against NPC alleging that NPC violated wage and hour laws by misclassifying the pharmaceutical sales representatives as "exempt" employees, and by failing to pay overtime compensation. These lawsuits were consolidated and certified as a class action. They are part of a number of actions pending against pharmaceutical companies that challenge the industry's long-term practice of treating pharmaceutical sales representatives as salaried employees. In January 2009, the SDNY held that the pharmaceutical sales representatives were not entitled to overtime pay under the federal Fair Labor Standards Act and corresponding state wage and hour laws. Plaintiffs appealed that judgment to the US Court of Appeals for the Second Circuit (Second Circuit). Amicus briefs supporting the plaintiffs' position were filed by the National Employment Lawyers Association and by the US Department of Labor, and the US Chamber of Commerce filed a brief in support of NPC. On July 6, 2010, the Second Circuit vacated the judgment of the SDNY and remanded the case to the SDNY for further proceedings. On August 2, 2010, the remand mandate was stayed because NPC had decided to appeal the Second Circuit's opinion to the US Supreme Court. On October 4, 2010, NPC filed its petition for a writ of certiorari with the US Supreme Court. Amicus briefs in support of NPC's certiorari petition were filed on November 5, 2010, by the US Chamber of Commerce and Pharmaceutical Research and Manufacturers of America (PhRMA). The conference during which the US Supreme Court is expected to decide whether to grant or deny NPC's petition is currently expected to take place on February 18, 2011 NOVARTIS AG: Dismissal of Texas State Class Suits on Appeal ----------------------------------------------------------- Plaintiffs have appealed the dismissal of class action lawsuits against Novartis AG filed in Texas state courts, according to Novartis' Jan. 27, 2010, Form 20-F filed with the Securities and Exchange Commission for the fiscal year ended December 31, 2010. Beginning on January 7, 2010, shareholder class action complaints relating to the Alcon transactions announced on January 4, 2010, were filed against Novartis AG and others by minority shareholders of Alcon, Inc. These actions were filed in the SDNY, in the US Federal District Courts for the Eastern District of New York (EDNY) and the Northern District of Texas (NDTX) and in several Texas state courts. The case in the EDNY was voluntarily dismissed without prejudice by the plaintiffs on March 18, 2010. The case in the NDTX was transferred to the SDNY and formally consolidated with the actions pending there on June 25, 2010. In the SDNY, Novartis AG's motion to dismiss all cases pending there based on the doctrine of forum non conveniens (FNC) was granted on May 24, 2010, and the case was formally dismissed on July 2, 2010. On July 14, 2010, plaintiffs appealed this decision to the Second Circuit. On January 5, 2011, plaintiffs moved to dismiss this appeal. On January 6, 2011, the Second Circuit granted plaintiffs' motion and dismissed this appeal. The actions pending in Texas state courts were consolidated for pre-trial proceedings in a Multi District Litigation on April 16, 2010. Novartis AG's motion to dismiss the consolidated Texas state court actions based on FNC was filed on June 30, 2010. On November 17, 2010, Novartis AG's motion was granted and all Texas state court class actions were dismissed. On December 17, 2010, plaintiffs appealed this decision to the Texas Fifth District Court of Appeals. PHILIPS ELECTRONICS: May 2 Hearing on BPA Baby Bottle Settlement ---------------------------------------------------------------- LEGAL NOTICE OF PROPOSED SETTLEMENT If You Purchased or Received as a Gift an Avent or Philips Avent Branded Baby Bottle or Sippy Cup between January 1, 2001 to the Present, You May Be Entitled to a Refund or Voucher from a Proposed Class Action Settlement. A proposed settlement has been reached in a class action lawsuit involving certain Avent and Philips Avent branded plastic baby bottles and sippy cups that were sold in the United States. The lawsuit claims that Philips Electronics North America Corporation ("Philips") and other companies ("Defendants") violated the law by making, marketing and selling plastic baby bottles and sippy cups without adequately disclosing to consumers that the bottles and cups contained the chemical Bisphenol-A (BPA) and without disclosing the potential health risks associated with BPA exposure. Philips denies any wrongdoing and contends that it adequately disclosed the presence of minute traces of BPA in the products. The proposed settlement will provide refunds and/or vouchers to certain "Settlement Class Members" who submit "Claim Forms." If you are a Settlement Class Member, you must submit a Claim Form to get a check or voucher. Claim Forms can be obtained at http://www.PhilipsBPASettlement.com/or by calling 1-866-730- 1621. A federal court authorized this notice. Before any money is paid, the Court will have a hearing to decide whether to approve the proposed settlement. Am I a Class Member? You are a Settlement Class Member if you purchased or acquired (including by gift) certain Avent or Philips Avent branded baby bottles and sippy cups made with polycarbonate plastic that contained BPA including the Airflex Natural Feeding Bottles (4 oz, 9 oz, or 11 oz), Avent Natural Feeding Bottle or Feeding Bottle (4 oz, 9oz or 11 oz), and Avent Magic Cup (7 oz or 9 oz). What Does the Proposed Settlement Provide? Philips agreed to provide refunds and/or vouchers for Settlement Class Members. Philips also agreed not to sell baby bottles and sippy cups containing BPA in the United States for a period of four years, subject to certain exceptions, which are also explained on the website. Visit the settlement website at http://www.PhilipsBPASettlement.com/to read more about the factors that determine the amount of the refunds and/or vouchers. What Are My Options? To qualify for a refund or voucher, you must mail, fax or email a Claim Form to the Claims Administrator by July 16, 2011. In order to participate, you will be required to provide certain information. If you don't wish to be in the proposed settlement, you may exclude yourself from the Settlement Class by notifying the Claims Administrator by April 11, 2011. Or you may stay in and object to the proposed settlement by April 11, 2011. Visit http://www.PhilipsBPASettlement.com/or call 1-866-730- 1621 for more details about the proposed settlement, your rights, and how to file a Claim Form. Do I have a Lawyer in this Case? The Court assigned the following attorneys to represent you and the other Settlement Class Members: Edith Kallas, Esq. Whatley Drake & Kallas LLC 1540 Broadway, 37th Floor New York, NY 10036 - and - Thomas V. Bender, Esq. Walters Bender Strohbehn & Vaughan, PC 2500 City Center Square 1100 Main Street PO Box 26188 Kansas City, MO 64196 Together the lawyers are called "Co-Lead Counsel." You will not be charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense. You are also represented by the "Plaintiffs," whom the Court assigned to serve as "Class Representatives" for you and the other Class Members. The Court will hold a hearing at 1:00 p.m. on May 2, 2011 at the United States District Court, located at 900 East Fourth Street in Kansas City, Missouri, to consider whether to approve the proposed settlement, and whether to grant Co-Lead Counsel's request for $2.5 million in attorneys' fees and expenses and to pay $1,000 in "incentive payments" to the Settlement Class Representatives, to which Philips does not object. You do not have to attend the hearing. For more information, go to: http://www.PhilipsBPASettlement.com/ OR call 1-866-730-1621 CLAIM FORMS MUST BE POSTMARKED OR SUBMITTED BY JULY 16, 2011. RCA RUBBER: Sued for Terminating Retiree Medical Benefits --------------------------------------------------------- Liz Potocsnak at Courthouse News Service reports that RCA Rubber Co. of America, which prides itself on being a fourth-generation American-owned family business, killed the benefits of retirees of its wholly owned subsidiary, and benefits for their spouses, the retirees claim in a federal class action. From the time it opened in 1956 until it shut down in 2005, co- defendant Pulaski Rubber Co. was a wholly owned subsidiary of RCA, the lawsuit states. RCA was in charge of the workers' retirement plan when it decided to rob them of what took decades of work to earn, they say, and the company violated a labor agreement in doing so. "Over decades of service at Pulaski's facility, the retirees earned rights to receive retiree medical benefits. Rights to these benefits were created through collective bargaining between Pulaski and the union that had represented the retirees while they were employed." The workers were represented by the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union. "On or about August 16, 2010, however, RCA President Sherri D. Price sent letters to retirees and spouses on RCA letterhead announcing that effective November 1, 2010, RCA and Pulaski would 'no longer provide medical insurance benefits to retirees and their dependents from The Pulaski Rubber Company,'" the complaint states. The class claims the termination of their benefits violates their collective bargaining agreement, ERISA, and is a breach of fiduciary duty. A copy of the Complaint in Cheatham, et al. v. The R.C.A. Rubber Company of America, et al., Case No. 11-cv-00006 (M.D. Tenn.), is available at: http://www.courthousenews.com/2011/01/28/Rubber.pdf The Plaintiffs are represented by: Lynn Agee, Esq. AGEE, VAN ATTA, & OWENS, LLC 3340 Perimeter Hill Dr. Nashville, TN 37211 Telephone: (615) 834-8590 - and - William T. Payne, Esq. Jonathan K. Cohn, Esq. STEMBER FEINSTEIN DOYLE & PAYNE, LLC 17th Floor, Allegheny Building 429 Forbes Avenue Pittsburgh, PA 15219 Telephone: (412) 281-8400 REDBOX AUTOMATED: Class Action Lead Plaintiff Gets New Counsel -------------------------------------------------------------- Amelia Flood, writing for The Madison St. Clair Record, reports a proposed lead plaintiff in a pending class action against Redbox Automated Retail Inc. once again has a new law firm representing her. Attorney Jeffrey Millar is part of the legal team representing Laurie Piechur against the company that owns DVD rental kiosks. Mr. Millar asked last year that the court substitute Brent Coon & Associates for Saville and Flint of Glen Carbon, the firm Mr. Millar left Brent Coon to join. It appears Mr. Millar has again changed firms, according to an order signed Jan. 21 by St. Clair County Associate Judge Andrew Gleeson. In that filing, Judge Gleeson allowed Saville and Flint to withdraw from Ms. Piechur's suit. The Millar Law Firm of St. Charles, Mo. was substituted as plaintiff's counsel. Ms. Piechur proposes to lead a nationwide class of DVD rental customers who claim that Redbox charged unfair late fees. Redbox denies the claims in the suit and has unsuccessfully tried to have the suit thrown out. The suit seeks over $350,000 in damages and costs. The suit has not been certified. Mr. Millar asked for the Saville & Flint substitution in September 2010. St. Clair County Circuit Judge Robert LeChien granted the request. Mr. Millar was once a member of the Lakin Law Firm -- now LakinChapman LLC of Wood River. Mr. Millar left Lakin to join Brent Coon, based in Beaumont, Texas. The other members of Ms. Piechur's legal team include Thomas and Peter Maag and others. Robert Sprague, Eric Brandfonbrener and others represent Redbox. The case is St. Clair case number 09-L-562. SMURFIT-STONE: D&Os Sued for Breach of Fiduciary Duties ------------------------------------------------------- Matthew Gold, individually and on behalf of others similarly situated v. Smurfit-Stone Container Corporation, et al., Case No. 2011-CH-03371 (Ill. Cir. Ct., Cook Cty. January 26, 2011), accuses Smurfit, its Board of Directors, and Rock-Tenn Company of directly breaching or aiding the other defendants' breaches of their fiduciary duties to Smurfit's public shareholders in connection with their efforts to complete the sale of the Company to Rock- Tenn via an unfair process and at an unfair price. Pursuant to the Merger Agreement, Smurfit will become a wholly owned subsidiary of RockTenn. For each share of Smurfit common stock, Smurfit stockholders will be entitled to receive 0.30605 shares of RockTenn common stock and $17.50 in cash, representing 50% cash and 50% stock. The aggregate consideration is $35 per Smurfit common share. The consideration represents a 27% premium to Smurfit-Stone's closing stock price on January 21, 2011. The aggregate purchase price being paid for Smurfit-Stone's equity in the transaction is approximately $3.5 billion, consisting of approximately $1.8 billion of cash and the issuance 30.9 million shares of RockTenn common stock. Following the acquisition, RockTenn shareholders will own approximately 56% and Smurfit shareholders will own 44% of the combined company. In addition to the equity consideration, RockTenn will assume Smurfit's net debt and pension liabilities. The transaction is expected to close in the second calendar quarter of 2011 and is subject to customary closing conditions, regulatory approvals, as well as approval by both RockTenn and Smurfit stockholders. Mr. Gold is a shareholder of Smurfit, a company which manufactures paperboard and paper-based packaging in North America. Defendant Rock-Tenn manufactures and sells packaging products, recycled paperboard, containerboard, bleached paperboard, and merchandising displays worldwide. Mr. Gold relates that Smurfit recently emerged from bankruptcy in July 2010, and as a result is well-positioned to return profits to shareholders over the near term. Mr. Gold says Smurfit's valuation as it emerged from bankruptcy, based on "what it told its creditors their shares would be worth upon reemergence", far exceeds the valuation of the Company as a result of the proposed acquisition. Mr. Gold adds that the proposed acquisition will allow Rock-Tenn to tap the Midwest and West Coast markets in the United States, thus becoming the No. 2 North American producer of containerboard and the No. 2 producer of coated recycled board, with combined annual revenues of $9 billion. The Complaint says that the process followed by the Board of Directors leading to the proposed sale "was fraught with conflicts of interest and designed to provide benefits to Company insiders to the detriment of the Company's public shareholders." According to the Complaint: 1) The "quick sale", a mere 7 months from the Company's emergence from bankruptcy, will cash out the equity interests of the Company's Chief Executive Officer, defendant Patrick Moore, who was set to retire, per agreement with Company, no more than nine months after the Company successfully emerged from bankruptcy. Mr. Moore was to remain on the Board, and as a Company insider would not have been able to cash out his equity interests. 2. Certain other members of the Company's Board, as yet unidentified, secured ongoing Board positions with Rock-Tenn. 3. In order to "lock up the proposed acquisition to ensure their receipt of these benefits", the Board agreed to several preclusive deal protection devices in the Agreement and Plan of Merger with Rock-Tenn that effectively prevent competing bidders from coming forward, including: (i) a no-shop clause that prevents the Company from sharing confidential Company information or even communicating with potential competing bidders; (ii) a termination fee that requires the Company to pay Rock-Tenn $120 million if the proposed acquisition is terminated in favor of a superior proposal; (iii) matching rights and information rights that provide Rock-Tenn with three business days to match any competing proposal and require the Company to inform Rock-Tenn about any indication of interest received by the Company; and (iv) a provision that requires the Company to keep in place any existing standstill agreements. Mr. Gold explains that in a transaction that will result in a change of corporate control, shareholders are entitled to receive a significant premium. Thus, Mr. Gold asks the Court to enjoin the defendants from consummating the proposed acquisition, unless and until the Company adopts and implements a procedure or process to obtain the highest possible price for shareholders. The Plaintiff is represented by: Leigh R. Lasky, Esq. Norman Rifkind, Esq. Amelia S. Newton, Esq. LASKY & RIFKIND, LTD. 350 North LaSalle Street, Suite 1320 Chicago, IL 60654 Telephone: (312) 634-0057 - and - Randall J. Baron, Esq. A. Rick Atwoo, Jr., Esq. David T. Wissbroecker, Esq. David A. Knotts, Esq. Eun Jin Lee, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 - and - Willie C. Briscoe, Esq. THE BRISCOE LAW FIRM, PLLC 8117 Preston Road, Suite 300 Dallas, TX 75225 Telephone: (214) 706-9314 - and - Patrick W. Powers, Esq. POWERS TAYLOR LLP Campbell Centre II 8150 North Central Expressway, Suite 1575 Dallas, TX 75206 Telephone: (214) 239-8900 SYMANTEC CORP: Sued Over Deceptive Sale of "Download Insurance" --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Symantec automatically charges customers for "download insurance," a useless service that provides nothing they didn't buy without it. A copy of the Complaint in Khoday, et al. v. Symantec Corp., et al., Case No. 11-cv-00180 (D. Minn.), is available at: http://www.courthousenews.com/2011/01/28/Symantec.pdf The Plaintiffs are represented by: Karen Hanson Riebel, Esq. LOCKRIDGE GRINDAL NAUEN P.L.L.P. 100 Washington Avenue South, Suite 2200 Minneapolis, MN 55401 Telephone: 612-596-4097 E-mail: khriebel@locklaw.com - and - Andrew N. Friedman, Esq. Victoria S. Nugent, Esq. Whitney R. Case, Esq. COHEN MILSTEIN SELLERS & TOLL PLLC 1100 New York Avenue, N.W. Suite 500, West Tower Washington, DC 20005 Telephone: (202) 408-4600 E-mail: afriedman@cohenmilstein.com wcase@cohenmilstein.com - and - Richard Wentz, Esq. Jean Wentz, Esq. THE WENTZ LAW FIRM 2955 East Hillcrest Drive, Suite 123 Thousand Oaks, CA 91362 Telephone: (805) 374-0060 E-mail: rick.wentz@gmail.com jean.wentz@gmail.com - and - Lee S. Shalov, Esq. SHALOV STONE BONNER & ROCCO LLP 260 Madison Ave., 17th Floor Telephone: (212) 239-4340 TYCO INTERNATIONAL: Recognizes $7MM Net Gain on Adjusted Reserves ----------------------------------------------------------------- During the fiscal quarter ended December 24, 2010, certain contingencies related to the previously disclosed settlement of the Stumpf v. Tyco International Ltd. class action lawsuit elapsed, according to the Company's Jan. 27, 2011 Form 10-Q filed with the Securities and Exchange Commission for the quarter ended Dec. 24, 2010. The Stumpf matter, which was subject to the liability sharing provisions of the Separation and Distribution Agreement with Covidien and Tyco Electronics, had previously received final court approval for its settlement. As a result of the lapsing of time periods for certain class members to state a claim against the Company, the Company adjusted its remaining reserve for this and other legacy securities matters and recognized a net gain of $7 million during the quarter ended December 24, 2010. Since June 2007, the Company has resolved substantially all other non-tax legacy claims related to securities fraud and similar matters, with the exception of the claims related to former management and Mr. Frank Walsh Jr., a former director. TYCO INTERNATIONAL: Appeal Pending on Dealer Lawsuit Verdict ------------------------------------------------------------ An appeal from a court verdict in favor of Tyco International Ltd.'s ADT Worldwide segment in a class action lawsuit remains pending, according to the Company's Jan. 27, 2011 Form 10-Q filed with the Securities and Exchange Commission for the quarter ended Dec. 24, 2010. In 2002, the SEC's Division of Enforcement conducted an investigation related to past accounting practices for dealer connect fees that ADT had charged to its authorized dealers upon purchasing customer accounts. The investigation related to accounting practices employed by the Company's former management, which were discontinued in 2003. Although the Company settled with the SEC in 2006, a number of former dealers and related parties have filed lawsuits against the Company, including a class action lawsuit filed in the District Court of Arapahoe County, Colorado, alleging breach of contract and other claims related to ADT's decision to terminate certain authorized dealers in 2002 and 2003. In February 2010, the Court granted a directed verdict in ADT's favor dismissing a number of the plaintiffs' key claims. The plaintiffs have appealed this verdict. While it is not possible at this time to predict the final outcome of these lawsuits, the Company does not believe these claims will have a material adverse effect on the Company's financial position, results of operations or cash flows. UPONOR INC: May Face Class Action Over Pex Plumbing Fittings ------------------------------------------------------------ Class Action.org has released a consumer alert regarding the Pex brass plumbing fittings sold by Uponor Inc. and its wholly-owned subsidiary Radiant Technology (RTI). Allegedly, these plumbing fittings are defective and can fail sooner than expected, causing significant water damage. The brass plumbing fittings in question are inserted into cross linked polyethylene (PEX) tubing and are stamped on the side with "P Pex" or "MB Pex". If your plumbing system has been installed with these fittings and you have noticed leaking or other problems, you may be able to recover compensation for damages resulting from your Uponor Pex failure. Visit http://www.classaction.org/uponor-pex-plumbing-fittings.htmland complete the free case evaluation form to find out if you can participate in an Uponor class action lawsuit. Due to issues with the brass fittings cracking and leaking, Uponor Inc. sued the company that manufactured these products. In this case, Uponor admitted in court filings that the fittings were "not merchantable," "unreasonably dangerous," and "defective." However, according to a putative class action complaint, the Minnesota-based company has refused to replace all affected systems or otherwise compensate residential and commercial property owners as required under their product warranties. If your home or business has suffered property damage due to Uponor Pex failure, you may be able to participate in an Uponor class action lawsuit to recover compensation. An Uponor class action lawsuit would afford property owners the opportunity to collectively bring a claim in court for damage caused by water leaks. To find out if you can participate in an Uponor lawsuit, visit Class Action.org today. The Uponor class action lawyers working with the site are offering this online legal consultation at no cost and remain dedicated to consumers who were affected by faulty products. Class Action.org is dedicated to protecting consumers and investors in class actions and complex litigation throughout the United States. Class Action.org keeps consumers informed about product alerts, recalls, and emerging litigation and helps them take action against the manufacturers of defective products, drugs, and medical devices. Information about consumer fraud issues and environmental hazards is also available on the site. Visit http://www.classaction.org/today for a no cost, no obligation case evaluation and information about your consumer rights. VIACOM: Agrees to Settle Class Action for $2.75 Million ------------------------------------------------------- Eriq Gardner, writing for The Hollywood Reporter, reports Viacom and Black Entertainment Television have agreed to fork over $2.75 million to resolve a pending class action lawsuit from the owners of sound recordings. The class action was led by The Music Force, which commenced action in New York federal court in early 2009 over alleged copyright infringement. Specifically, the plaintiffs contended that BET had failed to secure proper "sync" licenses on many of its programs, including BET Impressions, Jazz Visions, and Lifted. TV and movie producers typically need to secure such licenses in order to pair copyrighted music with moving images. The settlement still needs to be blessed by the judge in the case. If approved, a Web site will be set up so that class members can access the agreement, ask questions, and review the process for making claims. * Lawsuit Filings in Madison County Down by 125 Cases in 2010 ------------------------------------------------------------- Amelia Flood, writing for The Madison St. Clair Record, reports the number of lawsuits seeking damages of more than $50,000 filed in Madison County declined between 2009 and 2010 by 125 cases. According to the annual filings report released on Jan. 27 by the Madison County Circuit Clerk's office, there were 1,418 suits with damages topping the $50,000 mark filed in 2009. In 2010, there were 1,293 suits filed in the court's Law Division. The Jan. 27 report did not include a breakdown of how many asbestos, medical malpractice and class action cases were filed in the 1,293 suits of 2010. A report released earlier this month by the clerk's office provided an unofficial tally of 752 asbestos cases, 15 medical malpractice cases and nine class action cases. Madison County's low-mark for major lawsuit filings -- in recent years -- came in 1998, when there were 946 suits filed. The number of lawsuits peaked in 2003 with 2,102 at the height of Madison County's class action boom. No year since then has come near that mark in terms of the number of filings. One of the 2010 class actions that has since settled was filed against the owners of the Blimpie sandwiches chain on claims that it advertised double-meat on its sandwiches and didn't deliver. Notable trials that took place in 2010 included: * A defense verdict in favor of Ford Motor Company in a suit over a Chicago man's mesothelioma and his wife's loss of consortium claims in March. Plaintiffs Larry and Meta Williams sought more than $1 million in damages. * A more than $3 million verdict won by plaintiffs Thomas and Betty Edwards for injuries Mr. Edwards suffered when a fellow truck driver lost part of his rig on a Missouri highway. * A more than $1 million verdict for Guy Webb and his niece Misty Webb against Union Pacific Railroad Company. Mr. Webb was injured when he drove his truck onto a set of Missouri train tracks and it was hit by a Union Pacific train. His brother James Webb Jr. was killed in the accident. * Dr. James Dalla Riva won a medical malpractice case filed by a former patient Penny Keller. Ms. Keller claimed that Dr. Dalla Riva was negligent when he performed surgery on her and caused her to develop a bowel condition. * 3M Company won a benzene suit filed by aircraft mechanic Veto Kleinaitis. Mr. Kleinaitis claimed that years of exposure to benzene traces in 3M products caused him to develop lymphoma. ********* 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 * * *