/raid1/www/Hosts/bankrupt/CAR_Public/110210.mbx
C L A S S A C T I O N R E P O R T E R
Thursday, February 10, 2011, Vol. 13, No. 29
Headlines
1-800-FLOWERS.COM: Defends "Unfair Trading" Suit in Connecticut
ACXIOM CORP: Settlement on Data Violation Suit Becomes Effective
AIR TRAN: Defends Eight Class Suits Related to Southwest Merger
AIR TRAN: Continues to Defend Antitrust Class Suit in Georgia
AIRGAS INC: Still Awaits Court Decision on Stockholder Class Suit
ALBERTO-CULVER: Delaware Suit Settlement Hearing Set for Feb. 21
ALLIANCE ONE: Continues to Defend Class Action Lawsuit in Brazil
AMC ENTERTAINMENT: Awaits Approval of "Bateman" Suit Settlement
ANSWERS CORP: Being Sold for Too Little, N.Y. Suit Claims
AT&T: April 11 Hearing Set for Class Action Distribution Plan
AUSTRALIA: Crewswick Flood Victims Mull Class Action
BANK OF AMERICA: Settles Overdraft Fee Class Action for $410MM
BANK OF AMERICA: Sued Over Failure to Fulfill HAMP Obligations
CHINA VALVES: April 5 Class Action Lead Plaintiff Deadline Set
CORVEL CORP: Obtains Final Approval of "Roche" Suit Settlement
CORVEL CORP: Seeks Judicial Review of Arbitration Panel's Decision
FORD MOTOR: Sued Over Defective Navistar Diesel Engines in Trucks
FULTON COUNTY, GA: Faces Class Suit Over Tax Collection Process
GREEN MOUNTAIN: Consolidated Amended Complaint Due Feb. 18
MANNKIND CORP: Pomerantz Law Firm Files Action Over AFFREZA
MULTIMEDIA GAMES: Awaits Ruling on Motion to Dismiss "Bussey" Suit
MULTIMEDIA GAMES: Discovery Still Ongoing in "Hardy I" Suit
MULTIMEDIA GAMES: Motion to Dismiss "Hardy II" Suit Is Pending
SHORETEL INC: "Berkovitz" Settlement Gets Preliminary Approval
SIMON & SCHUSTER: Lawyer in Suit Over Jimmy Carter Book Responds
SYNGENTA CROP: April 11 Atrazine Suit Settlement Conference Set
TD AMERITRADE: Motion to Dismiss "Ross" Lawsuit Still Pending
TD AMERITRADE: Final Hearing of "Spam" Settlement Set for April 7
TODD SHIPYARDS: Defending Four Class Suits Related to Vigor Merger
TOP SURGEONS: Sued in California Over Lap Band Surgery Deaths
TYSON FOODS: Court Still to Set Trial Date for Water Suit
UGI CORP: Obtains Preliminary Okay of "Swigers" Suit Settlement
UGI CORP: Appeals From AmeriGas Suits Settlement Approval Pending
UNION PACIFIC: Continues to Defend Antitrust Suits
UNITED STATES: Keepseagle Class Action Settlement Hearing Nears
UNITED STATES: Quapaw Tribe Files Breach of Trust Class Action
* History Sniffing Sparks Consumer Class Actions
* Lawmaker Introduces Legislation for Class Action Defendants
*********
1-800-FLOWERS.COM: Defends "Unfair Trading" Suit in Connecticut
---------------------------------------------------------------
1-800-FLOWERS.COM, Inc., along with other defendants, is defending
itself from a class action lawsuit in Connecticut, according to
the Company's Feb. 4, 2011 Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
December 26, 2010.
On November 10, 2010, a purported class action complaint was filed
in the United States District Court for the Eastern District of
New York naming the Company (along with Trilegiant Corporation,
Inc., Affinion, Inc. and Chase Bank USA, N.A.) as defendants in an
action purporting to assert claims against the Company alleging
violations arising under the Connecticut Unfair Trade Practices
Act among other statutes, and for breach of contract and unjust
enrichment in connection with certain post-transaction marketing
practices in which certain of the Company's subsidiaries
previously engaged in with certain third-party vendors.
Plaintiffs seek to have this case certified as a class action and
seek restitution and other damages, all in an amount in excess of
$5 million. The Company intends to defend this action vigorously.
1-800-FLOWERS.COM, Inc. -- http://www.1800flowers.com/-- is the
world's leading florist and gift shop. For more than 30 years,
1-800-FLOWERS(R) (1-800-356-9377) has been providing customers
with fresh flowers and the finest selection of plants, gift
baskets, gourmet foods, confections, balloons and plush stuffed
animals.
ACXIOM CORP: Settlement on Data Violation Suit Becomes Effective
----------------------------------------------------------------
The settlement of a class action lawsuit filed by Richard Fresco,
et al., against Acxiom Corporation became effective January 18,
2011, according to the Company's Feb. 4, 2011 Form 10-Q filed with
the U.S. Securities and Exchange Commission for the quarter ended
December 31, 2010.
Richard Fresco, et al. v. R.L. Polk and Company and Acxiom
Corporation, (U.S. Dist. Court, S.D. Florida, 07-60695) formerly,
Linda Brooks and Richard Fresco v. Auto Data Direct, Inc., et al.,
(U.S. Dist. Court, S.D. Florida, 03-61063) is a putative class
action lawsuit, removed to federal court in May 2003, filed
against Acxiom and several other information providers. The
plaintiffs allege that the defendants obtained and used drivers'
license data in violation of the federal Drivers Privacy
Protection Act. Among other things, the plaintiffs sought
injunctive relief, statutory damages, and attorneys' fees. Acxiom
has agreed to settle the case and the court approved the
settlement on July 27, 2010. The settlement became effective
January 18, 2011. Acxiom accrued $5.0 million for the settlement
and ancillary costs to obtain final approval and previously paid
$2.5 million of this amount into an escrow fund established for
the settlement, and paid approximately $0.4 million in ancillary
costs. The remaining accrual of $2.1 million was reversed in the
quarter ended December 31, 2010, in gains, losses and other items,
net.
Two companion cases, Sharon Taylor, et al., v. Acxiom, et al.,
(U.S. District Court, E.D. Texas, 207CV001) and Sharon Taylor, et
al. v. Biometric Access Company, et al., (U.S. District Court,
E.D. Texas, 2:07-CV-00018), were filed in January 2007. Both
Taylor cases were dismissed by the District Court and the
dismissal was upheld on appeal on July 14, 2010. The Plaintiffs
sought review by the U.S. Supreme Court, which declined to
consider the matter on January 10, 2011, bringing both to final
resolution.
AIR TRAN: Defends Eight Class Suits Related to Southwest Merger
---------------------------------------------------------------
As of January 31, 2011, eight purported class action lawsuits have
been filed on behalf of AirTran Holdings, Inc., shareholders in
connection with AirTran's proposed merger with Southwest Airlines,
according to the Company's Feb. 4, 2011, Form 10-K filing with the
U.S. Securities and Exchange Commission for the fiscal year ended
December 31, 2010.
Four cases were brought in Nevada: three in Nevada state court
(Leonelli, No. 10-OC-00448 1B; Frohman, No. 10-OC-00449 1B;
Church, No. A-10-626971-C), and one in federal court (Nesbit, No.
2:11-cv-00092 (PMP)(GWF)). Four cases were brought in Florida
state court (DeBardelaben, No. 2010-CA-022893-O; Hoffner, No.
2010-CA-022143-O; Loretisch, No. 2010-CA-023520-O; Rosenberger,
No. 2010-CA-023117-O). The allegations in all eight complaints
were similar. In each case, plaintiffs allege that the members of
the board of directors of AirTran violated their fiduciary duties
to the company by voting to approve the proposed merger and that
AirTran, Southwest and Merger Sub aided and abetted the board in
breaching those duties. In each case, plaintiffs generally seek
injunctive relief: (i) enjoining the defendants from consummating
the merger unless AirTran adopts and implements a procedure or
process to obtain the highest possible price for AirTran's
stockholders and discloses all material information to AirTran's
stockholders, (ii) directing the board to exercise their fiduciary
duties to obtain a transaction that is in the best interests of
AirTran's stockholders, (iii) rescinding, to the extent already
implemented, the merger agreement, including the deal protection
devices that may preclude premium competing bids for AirTran, (iv)
awarding plaintiffs' costs and disbursements of the action,
including reasonable attorneys' and experts' fees, and (v)
granting such other and further equitable relief as the court may
deem just and proper. The Leonelli and Frohman cases were
consolidated on November 24, 2010, and plaintiffs filed a
Consolidated Complaint on December 14, 2010.
The AirTran Defendants moved to dismiss the Consolidated Complaint
on January 7, 2011. Plaintiffs in the consolidated case have not
yet filed an opposition to that motion. Discovery in the
consolidated case is in its early stages. The plaintiff in Church
voluntarily dismissed that case on November 30, 2010, and filed a
new complaint in the United States District Court for the District
of Nevada on December 2, 2010. The federal action raises
substantially the same claims as in the state case, except
plaintiff added claims under Sections 14(a) and 20(a) of the
Securities Exchange Act based on the preliminary proxy statement.
On December 9, 2010, the plaintiff in Church moved for expedited
discovery, which was denied on December 29, 2010. On December 20,
2010, the AirTran Defendants moved to dismiss the complaint, and
on December 22, 2010, the AirTran Defendants moved to stay
discovery pursuant to the Private Securities Litigation Reform
Act. The plaintiff filed an opposition to the motion to stay
discovery on January 7, 2011, but has not yet filed an opposition
to the motion to dismiss. The complaint in Nesbit was filed on
January 18, 2011, but the AirTran Defendants have not yet been
served with the complaint. If the plaintiff does not voluntarily
withdraw the complaint, and upon service thereof, the AirTran
Defendants will seek to dismiss or stay the case based on a
Memorandum of Understanding. The AirTran Defendants filed motions
to stay the four Florida cases in favor of the cases in Nevada.
The court granted such motions on December 2, 2010.
While Southwest, AirTran, and the individual AirTran defendants
believe that each of the lawsuits is without merit, the parties to
the Leonelli consolidated complaint and the Church federal
complaint entered into a Memorandum of Understanding on
January 26, 2011, to settle those lawsuits. The settlement
provides for the inclusion of additional disclosures with respect
to various aspects of the merger in the proxy statement/prospectus
with respect to the proposed merger with Southwest. In addition,
it provides for the payment of plaintiffs' attorneys' fees and
expenses, subject to court approval. The MOU further provides that
the parties will enter into a stipulation of settlement which will
provide, among other things, for the conditional certification of
a settlement class. The MOU and stipulation of settlement are
subject to various conditions, including court approval following
notice to AirTran stockholders, completion of certain discovery
and consummation of the merger. If the settlement is finally
approved, it will resolve and release on behalf of the entire
class of AirTran stockholders, all claims that were or could have
been brought challenging any aspect of the merger, the merger
agreement and any disclosure made in connection therewith, among
other claims.
AIR TRAN: Continues to Defend Antitrust Class Suit in Georgia
-------------------------------------------------------------
AirTran Holdings, Inc., continues to defend itself from an
antitrust class action lawsuit pending in Georgia over checked bag
fees.
A complaint alleging violations of federal antitrust laws and
seeking certification as a class action was filed against Delta
Air Lines, Inc. (Delta) and AirTran in the United States District
Court for the Northern District of Georgia in Atlanta on May 22,
2009. The complaint alleges, among other things, that AirTran
conspired with Delta in imposing $15-per-bag fees for the first
item of checked luggage. The initial complaint sought treble
damages on behalf of a putative class of persons or entities in
the United States who directly paid Delta and/or AirTran such fees
on domestic flights beginning December 5, 2008. Subsequent to the
filing of the May 2009 complaint, various other nearly identical
complaints also seeking certification as class actions were filed
in federal district courts in Atlanta, Georgia; Orlando, Florida;
Las Vegas, Nevada; and Oakland, California. All of the cases were
consolidated before a single judge in Atlanta. An amended
complaint filed in February 2010 in the consolidated action
broadened the allegations to add claims that Delta and AirTran
also cut capacity on competitive routes and raised prices. The
amended complaint seeks injunctive relief against a broad range of
alleged anticompetitive activities and attorneys fees. On
August 2, 2010, the Court dismissed that portion of the
plaintiffs' claims of a continuing conspiracy such that AirTran
had violated Section 2 of the Sherman Act; the Court let stand the
claims of a conspiracy to with respect to the imposition of a
first bag fee. AirTran denies all allegations of wrongdoing,
including those in the amended complaint, and intends to defend
vigorously any and all such allegations.
No updates were reported in the Company's Feb. 4, 2011 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2010.
AIRGAS INC: Still Awaits Court Decision on Stockholder Class Suit
-----------------------------------------------------------------
Airgas, Inc., is still awaiting a court ruling on a consolidated
shareholder class action lawsuit filed against it in Delaware,
according to the Company's Feb. 4, 2011, Form 10-Q filed with the
U.S. Securities and Exchange Commission for the quarter ended
December 31, 2010.
A number of purported stockholder class action lawsuits were
commenced against the Company and/or the members of the Airgas
Board in the Delaware Court of Chancery. These suits, which have
been consolidated, allege, among other things, that the members of
the Airgas Board have failed to fulfill their fiduciary duties by
refusing to negotiate with Air Products, failing to seek more
valuable alternatives and failing to redeem the Company's
shareholder rights plan. The plaintiffs seek equitable relief, as
well as an award of compensatory damages, costs and attorneys'
fees. The Company and its directors believe that the claims made
by the stockholder plaintiffs are without merit and are defending
against them vigorously. A five-day trial in the actions brought
by Air Products and the shareholder plaintiffs was held from
October 4 to 8, 2010 and a supplemental evidentiary hearing was
held from January 25 to 27, 2011. No decision has been rendered.
ALBERTO-CULVER: Delaware Suit Settlement Hearing Set for Feb. 21
----------------------------------------------------------------
A hearing to consider approval of a settlement that Alberto-Culver
Company entered into with plaintiffs of a class action lawsuit in
Delaware is set to be heard on February 21, 2011, according to the
Company's Feb. 4, 2011, Form 10-Q filed with the Securities and
Exchange Commission for the quarter ended December 31, 2010.
On September 27, 2010, Alberto Culver Company entered into a
definitive agreement with Unilever N.V., Unilever PLC and other
related companies, pursuant to which Unilever will acquire all of
the outstanding shares of Alberto Culver Company common stock in
exchange for $37.50 per share in cash, without interest
In connection with the Unilever Transaction, in October and
November 2010, several purported class action complaints were
filed against Alberto Culver Company and its directors
(collectively referred to as the Alberto Culver defendants) and
Unilever N.V. and other related companies (collectively referred
to as the Unilever defendants), under these captions:
* In the Court of Chancery of the State of Delaware: Laborers
Local 235 Benefit Funds v. Leonard H. Lavin, et al., Case No.
5873; City of Riviera Beach General Employees Retirement
System v. Leonard H. Lavin, et al., Case No. 5876; Oklahoma
Firefighters Pension and Retirement System v. Leonard H.
Lavin, et al., Case No. 5879; KBC Asset Management NV v.
Leonard H. Lavin, et al., Case No. 5898; and Southeastern
Pennsylvania Transportation Authority v. Carol Lavin Bernick,
et al., Case No. 5905 (the Delaware Court of Chancery
consolidated these five actions by order of the court into a
consolidated action captioned In re Alberto-Culver Company
Shareholder Litigation, C.A. No. 5873-VCS (the Consolidated
Delaware Action));
* In the Circuit Court of Cook County, Illinois, County
Department, Chancery Division: Dolores Joyce v. Leonard H.
Lavin, et al., Case No. 10CH44626; and Inter-Local Pension
Fund of the Graphic Communications Conference of the
International Brotherhood of Teamsters v. Leonard H. Lavin et
al., Case No. 10CH5419 (the Circuit Court of Cook County,
Illinois consolidated these two actions (the Illinois
Actions));
* In the District Court of the Northern District of Illinois:
David Jaroslawicz v. Leonard H. Lavin, et al., Case No. 1:10-
CV-6815; and Dolores Joyce v. Leonard H. Lavin, et al. (the
Federal Court Actions).
All nine lawsuits allege, among other things, that the company's
directors breached their fiduciary duties in connection with the
negotiation, consideration and approval of the Unilever
Transaction agreement by, among other things, agreeing to sell the
company for inadequate consideration and on otherwise
inappropriate terms. The complaints allege that the Unilever
defendants aided and abetted, and the complaints filed in the
Illinois Actions also allege that the company aided and abetted,
the alleged breaches of fiduciary duty by the Alberto Culver
directors. The complaint in the Joyce Federal Court Action also
alleges that the preliminary proxy statement contains material
misrepresentations or omissions in violation of Sections 14(a) and
20(a) of the Exchange Act. Based on these allegations, the
lawsuits seek, among other things, injunctive relief, including
the enjoining of the Unilever Transaction, and damages. They also
purport to seek recovery of the costs of the actions, including
reasonable attorneys' fees.
On October 29, 2010, the defendants filed a motion to dismiss the
Illinois Actions. Before the court ruled on the defendants'
motion, it granted plaintiffs' leave to voluntarily dismiss the
Illinois Actions on November 3, 2010.
On November 29, 2010, the Alberto Culver defendants, the Unilever
defendants and the plaintiffs in the Consolidated Delaware Action
and the Federal Court Actions entered into a Stipulation and
Agreement of Compromise and Settlement resolving all claims by
Alberto Culver shareholders (other than statutory appraisal
rights) arising in connection with the Unilever Transaction,
including all claims in the Consolidated Delaware Action and the
Federal Court Actions. In connection with the Settlement
Agreement, on or about January 4, 2011, the company mailed a
Notice of Pendency and Proposed Settlement of Shareholder
Litigation to its stockholders of record during the period between
September 27, 2010 and December 28, 2010.
A hearing is scheduled before the Delaware Court of Chancery on
February 21, 2011. Should the settlement not proceed on the basis
of the Settlement Agreement, the company intends to defend itself
vigorously against the claims asserted in the lawsuits.
ALLIANCE ONE: Continues to Defend Class Action Lawsuit in Brazil
----------------------------------------------------------------
Alliance One International, Inc.'s Brazilian subsidiary, Alliance
One Brazil Exportadora de Tobaccos Ltda, continues to defend
itself from a class action lawsuit in Brazil, according to the
Company's Feb. 4, 2011, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Dec. 31, 2010.
On June 6, 2008, AOB and a number of other tobacco processors were
notified of a class action initiated by the ALPAG -- Associacao
Lourenciana de Pequenos Agricultrores. The class action's focus
is a review of tobacco supplier contracts and business practices,
specifically aiming to prohibit processors from notifying the
national credit agency of producers in debt, prohibiting
processors from deducting tobacco suppliers' debt from payments
for tobacco, and seeking the modification of other contractual
terms historically used in the purchase of tobacco. The Company
presented its defense locally and the case has been transferred to
the Federal Court in Brasilia. No hearing date has been set. The
Company believes this claim to be without merit and intends to
vigorously defend it. Ultimate exposure if an unfavorable outcome
is received is not determinable.
AMC ENTERTAINMENT: Awaits Approval of "Bateman" Suit Settlement
---------------------------------------------------------------
AMC Entertainment, Inc., and plaintiffs of a class action lawsuit
in California are awaiting court approval of their tentative
settlement, according to the Company's Feb. 4, 2011 Form 10-Q
filed with the Securities and Exchange Commission for the quarter
ended December 31, 2010.
In January 2007, a class action complaint was filed against the
Company in the Central District of the United States District
Court of California alleging violations of the Fair and Accurate
Credit Transactions Act. FACTA provides in part that neither
expiration dates nor more than the last 5 numbers of a credit or
debit card may be printed on receipts given to customers. FACTA
imposes significant penalties upon violators where the violation
is deemed to have been willful. Otherwise damages are limited to
actual losses incurred by the card holder. On October 24, 2008,
the District Court denied plaintiff's renewed motion for class
certification. On September 27, 2010, the Ninth Circuit Court of
Appeals vacated the District Court's order and remanded the
proceedings for a new determination consistent with their opinion.
The Company filed its Petition for En Banc and/or Panel Rehearing
on October 8, 2010. The parties have reached a tentative
settlement, subject to court approval, which is not expected to
have a material adverse impact to the Company's financial
condition.
ANSWERS CORP: Being Sold for Too Little, N.Y. Suit Claims
---------------------------------------------------------
Courthouse News Service reports that shareholders claim
Answers.com is selling itself too cheaply through an unfair
process to Summit Partners, for $10.50 a share or $127 million.
A copy of the Complaint in Mathason v. Rosenschein, et al., Index
No. 650311/2011 (N.Y. Sup. Ct., N.Y. Cty.), is available at:
http://www.courthousenews.com/2011/02/07/Answers.com.pdf
The Plaintiff is represented by:
Robert I. Harwood, Esq.
Matthew M. Houston, Esq.
HARWOOD FEFFER LLP
488 Madison Ave., 8th Floor
New York, NY 10022
Telephone: (212) 935-7400
- and -
Howard G. Smith, Esq.
LAW OFFICES OF HOWARD G. SMITH
3070 Bristol Pike, Suite 12
Bensalem, PA 19020
Telephone: (215) 638-4847
- and -
Lionel Z. Glancy, Esq.
Michael Goldberg, Esq.
GLANCY BINKOW & GOLDBERG LLP
1801 Avenue of the Stars, Suite 311
Los Angeles, CA 90067
Telephone: (310) 201-9150
AT&T: April 11 Hearing Set for Class Action Distribution Plan
-------------------------------------------------------------
The following statement is being issued by Heins Mills & Olson
P.L.C., Stanley Iola LLP, and Susman Godfrey LLP pursuant to an
order of the United States District Court for the District of
Kansas:
TO: All AT&T residential wireline (land line, not mobile) long
distance customers in the State of California who paid a Universal
Service Fund ("USF") Charge between August 1, 2001 and March 31,
2003 ("California Class").
A federal court in Kansas will consider a plan to distribute part
of a $16,477,958.41 judgment obtained in a class action lawsuit
against AT&T. The distribution will be to current and former AT&T
residential wireline customers in the State of California who paid
Universal Service Fund ("USF") charges between August 1, 2001 and
March 31, 2003. The USF is intended to help provide affordable
telecommunications services for low-income customers and customers
in rural areas. Class members who submit claims may qualify for a
cash payment of up to $1,000.00 per valid claim depending on the
number of claims submitted. Individuals may submit claims
covering each AT&T line they possessed during the class period.
The case is known as In re Universal Service Fund Telephone
Billing Practices Litigation, MDL No. 1468 (U.S. District Court
for the District of Kansas).
In November 2008, a federal jury found that AT&T breached its
contracts with customers in California by imposing charges on its
customers' bills that were greater than necessary to recover
amounts AT&T was required to pay into the federal USF program. On
March 4, 2009, the District Court entered an Amended Judgment of
$16,477,958.41 in favor of the Class. That judgment was affirmed
on appeal.
To be eligible to participate in the fund, class members must
submit a Proof of Claim form, which may be obtained by visiting
http://www.usfjudgment.com/or calling 1-800-961-7416. The Proof
of Claim form must be postmarked on or before April 29, 2011.
Claimants will be required to submit the name(s) on the
account(s), the AT&T residential wireline telephone number(s), a
current mailing address, and proof of billing to the AT&T
residential wireline telephone number(s) (if available) between
August 1, 2001 and March 31, 2003.
Class Counsel seek an attorneys' fee award of 33-1/3 percent of
the amended judgment amount, including a proportionate share of
the accumulated post-judgment interest. Class Counsel also seek
reimbursement of $3,064,074.40 of expenses incurred. Class
Counsel has also asked that $500,000 be reserved from the judgment
to cover the costs of notice and claims administration. The Court
will convene a hearing on April 11, 2011, beginning at 9:30 a.m.,
at the United States Courthouse, 500 State Avenue, Room 517,
Kansas City, Kansas. At the hearing, the Court will determine
whether the distribution plan is reasonable and also will decide
whether to grant Class Counsel's request for attorneys' fees and
reimbursement of litigation expenses.
Class members may object to the manner of distribution of the
award amount or the award of attorneys' fees and reimbursement of
expenses by filing written objections with the Court. Objections
must be postmarked on or before March 18, 2011, and mailed to the
Clerk of the Court, United States District Court for the District
of Kansas, United States Courthouse, 500 State Avenue, Kansas
City, Kansas 66101. Any such objections should indicate that it
relates to the litigation identified above.
All questions about the class action should be directed to the
Claims Administrator at:
USF Telephone Billing Practices Litigation
c/o Gilardi & Co. LLC
P.O. Box 1110
Corte Madera, CA 94976-1110
Telephone: 1-800-961-7416
AUSTRALIA: Crewswick Flood Victims Mull Class Action
----------------------------------------------------
ABC Melbourne reports residents of Creswick, near Ballarat, say
they are determined to go ahead with a class action against the
local Catchment Management Authority, after being flooded three
times in the past five months.
The residents say the weekend's flooding was exacerbated because
The North Central Catchment Management Authority delayed clearing
debris from the creek.
Cambridge Court resident, Dorothy Leishman, says about 30 people
want to join the class action.
She says they have spoken to a solicitor and are collecting
evidence.
"I've got reports that were done on several of the homes by their
insurance companies after the first flood," she said.
"I've got a report here from the man who used to be the Shire
engineer in town, and we're getting petitions with signatures,
we're getting photos, everything we can find to go ahead with this
class action".
Ms. Leishman says residents will closely monitor the creek
clearing works that started at the weekend.
BANK OF AMERICA: Settles Overdraft Fee Class Action for $410MM
--------------------------------------------------------------
Paul Brinkmann, writing for South Florida Business Journal,
reports Bank of America has agreed to a $410 million settlement in
nationwide class action lawsuits alleging that banks have abusive
and excessive overdraft fee policies.
The suits, consolidated before U.S. District Court Judge James
Lawrence King in Miami, sought to recover millions of dollars in
fees charged to consumers on debit card purchases.
The South Florida Business Journal first reported on the lawsuits
in October 2009.
Last spring, Bank of America said it would stop charging those
fees. Instead, customers could only make debit card purchases if
they had enough money in their accounts. Other banks targeted in
the lawsuit include Citibank, JPMorgan Chase, U.S. Bank, Wells
Fargo and Wachovia, which merged with it.
"We are pleased to reach a fair resolution to this matter," BofA
spokeswoman Anne Pace said in an e-mailed statement. "Unlike
others, we already addressed many customer concerns on posting
order when we eliminated overdraft fees for debit card
transactions. We have significantly reduced fees to those
customers who excessively overdraw their account."
The bank limits the number of overdraft fees a customer can
receive to four a day from 10 a day. BofA also said it extended
deposit cut-off times to 8:00 p.m. and reduced the length of
deposit holds, which allows customers quicker access to deposited
funds.
Bruce Rogow, a Miami attorney for the plaintiffs in the suit,
would only say the settlement "speaks for itself."
Mr. Rogow worked with the Alters Law Firm on the bank overdraft
litigation. He said that, once approved, the fees from the
settlement should help that firm pay off debts it has incurred,
partly due to mounting large class actions. One of that firms
former attorneys, Robert Gilbert, has been a lead plaintiffs'
counsel on the national steering committee for the litigation.
He recently left to join Grossman Roth, where he will continue to
serve as coordinating counsel on the bank overdraft litigation,
Mr. Rogow said.
"I think Bobby wanted and needed the support of more people around
him on these issues," said Mr. Rogow, a law professor at Nova
Southeastern University. "I wasn't around much because of my work
at the university and other work."
BANK OF AMERICA: Sued Over Failure to Fulfill HAMP Obligations
--------------------------------------------------------------
Tom Beres and Kim Wendel, writing for WKYC-TV, report that on
behalf of homeowners in Cleveland and Parma, attorneys filed two
similar class-action lawsuits -- one against US Bank Home Mortgage
and the other against Bank of America and BAC Home Loan Servicing,
LP on Feb. 7.
The lawsuits allege that both have failed to offer permanent loan
modifications to eligible homeowners participating in good faith
in the Home Affordable Modification Program.
In statements on Feb. 7, attorneys Marc Dann and James Douglass
said the banks failed to offer permanent home loan modifications,
despite both banks' entering into agreements with these homeowners
and accepting federal funds to participate the program.
The class-action lawsuits allege that both banks failed to fulfill
obligations under the federal Home Affordable Modification
Program.
The lawsuits will ask that the Cuyahoga County Court of Common
Pleas accept the cases as class action suits and declare that Bank
of America and US Bank are in breach of contract and must offer
permanent modifications in accordance with the agreements they
have made.
Both Bank of America and US Bank agreed to participate in the HAMP
program when they accepted funds from the Federal government as
part of the Troubled Asset Relief Program (TARP).
Under HAMP, the banks are to offer permanent affordable loan
modifications to participating eligible homeowners that make
payments during a three month trial period. The banks receive
$1,000 from the government for each HAMP modification.
Parma homeowners Richard and Mary Hlavsa, who have a Bank of
America mortgage, and a Cleveland homeowner with a US Bank
mortgage, sought help from Messrs. Dann and Douglass after they
entered into agreements with their respective banks to participate
in the HAMP program, provided all necessary documentation, made
the required payments and were never offered permanent loan
modifications.
"Banks like Bank of America and US Bank are not negotiating in
good faith. In both of these cases, the bank made written
promises to the borrowers that the bank subsequently broke,"
Mr. Dann said.
"In breaking their promises to these homeowners, Bank of America
and US Bank are also breaking their promise to the U.S. government
and to the taxpayers. The net result for the Hlavsas and the
client in the US Bank case is that there is no resolution to the
ongoing stress and uncertainty of foreclosure. This is exactly
the type of problem the HAMP program was designed to solve."
Messrs. Dann and Douglass believe that Bank of America and US Bank
have failed to keep their promise to many others, in addition to
their clients.
"I feel trapped and cheated," said Richard Hlavsa. "I keep paying
into this program because I want to keep my home but I have no
idea what is happening to my money or if, without a loan
modification, I can still lose my house."
The lawsuits further seek that the court order Bank of America and
US Bank to properly train those entering into HAMP agreements on
their behalf and to pay court costs and fees, as well as actual
and punitive damages, to these clients and others like them.
"Bank of America and US Bank are taking advantage of people that
are trying to make things right and completely disregarding the
promises they made to both these individuals and the government
when they took taxpayer money," Mr. Douglass said.
"By ignoring their obligation to pull people out of foreclosure,
the banks are also standing back and allowing our community to
continue to deteriorate. It must be stopped."
CHINA VALVES: April 5 Class Action Lead Plaintiff Deadline Set
--------------------------------------------------------------
Dyer & Berens LLP on Feb. 7 disclosed that a class action lawsuit
has been filed in the United States District Court for the
Southern District of New York on behalf of investors who purchased
China Valves Technology, Inc. common stock between January 12,
2010 and January 13, 2011, inclusive (the "Class Period").
What actions may I take at this time? If you purchased during the
Class Period and wish to serve as a lead plaintiff, you must
request appointment by court no later than April 5, 2011. If you
would like to discuss this action, the lead plaintiff process, or
have any questions concerning this notice, please contact Jeffrey
A. Berens, Esq. at (888) 300-3362 x302 or via email at
jeff@dyerberens.com Any member of the putative class may request
a lead plaintiff appointment through counsel of its choice or may
choose to do nothing and remain an absent class member.
What are the allegations in the complaint? The complaint charges
defendants with misrepresenting the circumstances and related-
party nature of the Company's acquisitions of Able Delight
(Changsha) Valve Co. and Shanghai Pudong Hanwei Valve Co., Ltd.
According to the complaint, defendants concealed that both
acquisitions involved payments to entities or persons that were
related to management in violation of generally accepted
accounting principles and SEC rules. The complaint also asserts
that defendants materially overstated the financial condition and
business prospects of the acquired companies. When the market
learned of this adverse information, the price of China Valves'
common stock dropped, thereby damaging investors. Based upon the
foregoing, the complaint charges China Valves and certain of its
officers and directors with violations of the Securities Exchange
Act of 1934.
Dyer & Berens LLP has expertise in prosecuting investor class
actions involving financial fraud. The firm's extensive
experience in securities litigation, particularly in cases brought
under the Private Securities Litigation Reform Act, has
contributed to the recovery of hundreds of millions of dollars for
aggrieved investors.
Contact: Jeffrey A. Berens, Esq.
DYER & BERENS LLP
303 East 17th Avenue, Suite 300
Denver, CO 80203
Telephone: (888) 300-3362 x302
Web site: http://www.DyerBerens.com/
CORVEL CORP: Obtains Final Approval of "Roche" Suit Settlement
--------------------------------------------------------------
CorVel Corp. obtained final approval last month of the settlement
it entered into with plaintiffs of a putative class-action lawsuit
in Illinois, according to the Company's Feb. 4, 2011 Form 10-Q
filed with the Securities and Exchange Commission for the quarter
ended December 31, 2010.
In February 2005, Kathleen Roche, D.C., as plaintiff, filed a
putative class action in Circuit Court for the 20th Judicial
District, St. Clair County, Illinois, against the Company. The
case sought unspecified damages based on the Company's alleged
failure to direct patients to medical providers who were members
of the CorVel CorCare PPO network and also alleged that the
Company used biased and arbitrary computer software to review
medical providers' bills. On October 29, 2010, the Company
entered into a settlement agreement providing for the payment of
$2.1 million to class members and up to an additional $700,000 for
attorneys' fees and expenses, as a result the Company accrued $2.8
million of estimated liability for this settlement agreement
during the quarter ended September 30, 2010. The Company denies
that its conduct was improper in any way and has denied all
liability. In exchange for the settlement payment by the Company,
class members consisting of Illinois medical providers (excluding
hospitals) have released the Company and all of its affiliates for
claims relating to any PPO or usual and customary reductions
recommended by the Company on class members' medical bills. On
January 21, 2011, the Circuit Court gave final approval to the
settlement and awarded class counsel $700,000 in attorneys' fees
and expenses and a $5,000 incentive award to Kathleen Roche, the
class representative.
CORVEL CORP: Seeks Judicial Review of Arbitration Panel's Decision
------------------------------------------------------------------
CorVel Corp. is seeking judicial review of a decision by a panel
that the arbitration agreement between the Company and Lake
Charles Memorial Hospital permits class actions, according to the
Company's Feb. 4, 2011 Form 10-Q filed with the U.S. Securities
and Exchange Commission for the quarter ended December 31, 2010.
In December 2006, Southwest Louisiana Hospital Association dba
Lake Charles Memorial Hospital filed a class action arbitration
with the American Arbitration Association against the Company
(Southwest Louisiana Hospital Association d/b/a. Lake Charles
Memorial Hospital, individually and on behalf of those similarly
situated v. CorVel Corporation, AAA Case No. 11 193 2760 06). Lake
Charles Memorial Hospital alleges that the Company violated
Louisiana's Any Willing Provider Act, which requires a payor
accessing a preferred provider contract to give 30 days' advance
written notice or point of service notice in the form of a benefit
card before the payor accesses the discounted rates in the
contract to pay the provider for services rendered to an insured
under that payor's health benefit plan.
In response, the Company filed a counter-suit on December 7, 2007
(CorVel Corporation v. Dr. Kevin Gorin, et. al, Docket No. 653896,
24th Judicial District Court for the Parish of Jefferson, State of
Louisiana) seeking a declaratory judgment challenging the
constitutionality of the AWPA's damage provision. In the first
phase of the arbitration, the clause construction phase, which
concluded in September 2010, the arbitration panel decided that
the arbitration agreement between the Company and Lake Charles
Memorial Hospital permits class actions.
The Company has filed for judicial review of the clause
construction phase decision. The three additional phases of the
arbitration (the class certification, class notification and
merits phases) have been stayed. The Company intends to pursue all
available legal remedies. The Company intends to vigorously defend
the arbitration and to prosecute its constitutional challenge to
the AWPA, but there can be no assurance that the Company will be
successful in doing so. The Company is not able to estimate the
amount of possible loss, if any, at this time.
FORD MOTOR: Sued Over Defective Navistar Diesel Engines in Trucks
-----------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
Ford put 6-liter Navistar diesel engines with multiple defects
into its 2003-2005 pickup trucks, and charged an extra $5,000 for
it.
A copy of the Complaint in Pawlaczyk et al. v. Navistar, Inc. et
al., Case No. 11-cv-00022 (W.D.N.C.) (Reidinger, J.), is available
at:
http://www.courthousenews.com/2011/02/07/FordCA.pdf
The Plaintiffs are represented by:
Jeffrey A. Long, Esq.
2820 Selwyn Avenue, Suite 400
Charlotte, NC 28209
Telephone: (704) 523-7777
E-mail: jlong@braylong.com
- and -
William E. Hopkins, Jr., Esq.
BEASLEY, ALLEN, CROW METHVIN, PORTIS, & MILES, P.C.
Post Office Box 4160
Montgomery, AL 36103-4160
Telephone: (334) 269-2343
E-mail: bill.hopkins@beasleyallen.com
- and -
Patrick E. Knie, Esq.
PATRICK E. KNIE, PA
Post Office Box 5159
Spartanburg, SC 29304-5159
Telephone: (864) 582-5118
E-mail: pknie@knielaw.com
FULTON COUNTY, GA: Faces Class Suit Over Tax Collection Process
---------------------------------------------------------------
Johnny Edwards, writing for The Atlanta Journal-Constitution,
reports the Fulton County Board of Tax Assessors is facing a class
action over the county's tax collection process.
With all she owes in back taxes and unpaid liens, Catherine
Johnson, 84, may not be able to hold onto Cat's Corner. She ran
the soul food restaurant on Martin Luther King Jr. Drive for four
decades until two knee replacement surgeries put her out of
business.
"All I have is Social Security," she said. "I don't have enough
to pay all those taxes."
R.J. Morris is offering her a morsel of hope.
Sitting in her dining room with file folders and stacks of papers
spread out on a red tablecloth, Mr. Morris, a real estate investor
and Fulton County anti-tax activist, tells her he's almost certain
he can get the tax value of the old restaurant lowered from
$120,600 to around $15,000 and the value of her adjacent rental
house lowered from $50,000 to $15,000. That could cut her yearly
tax bills from about $3,000 to $530.
"I will never charge you a penny," he says, "and I'll put that in
writing. I do it because it's fun to hurt the county."
Mr. Morris, founder and president of the Georgia Property
Taxpayers Committee, is offering to argue on Ms. Johnson's behalf
when she appeals the values to the county's Board of Equalization.
If he has his way, he'll soon also be representing her neighbors
and thousands of residents in six urban ZIP codes in a class-
action lawsuit, a sweeping assault on the county's tax collection
process.
Last spring, Mr. Morris filed suit against the Fulton County Board
of Tax Assessors, alleging the county inflated values in scores of
neighborhoods by using foreclosures seizures as comparable sales.
The seizures, termed credit-bid sales, represent not money
changing hands, but unpaid mortgages when a bank takes over a
house. He also says appraisers are disregarding valid sales and
arbitrarily setting neighborhoods' average prices.
Mr. Morris and his lead attorney, John Woodham, have begun a
process that could take the lawsuit into uncharted and, for the
county government, potentially treacherous territory. Mr. Morris
is seeking the right to sue not just over the value of an
investment property he owns on Pegg Road near East Point, but on
behalf of every overvalued residential property owner in four --
and possibly six -- high-foreclosure ZIP codes who hasn't already
appealed.
That would include Ms. Johnson's ZIP code (30310). According to
data Mr. Morris compiled through open records requests, the county
used nothing but credit-bid sales and threw out real sales when it
set values in her neighborhood near Westview Cemetery.
One case involved Federal National Mortgage Corp. taking over a
house on Tiger Flowers Drive with $131,809 left on the mortgage,
which later sold for $8,000. CitiMortgage Inc. seized a house on
the same street with $277,838 remaining in unpaid debt, which
later sold for $43,500.
A Superior Court judge has to approve class-action status, and the
case is in front of Judge John J. Goger. A conference held on
Feb. 4 launched the discovery process, which will culminate in a
hearing later this year.
If Mr. Morris succeeds, Fulton County could be facing tens of
millions of dollars in payouts. He not only wants to see the
valuation system fixed, but also to have every over-charged
taxpayer sent refund checks for tax years 2009 and 2010.
What the tally could be is difficult to pin down.
Mr. Morris claims two years of refunds in ZIP codes 30310, 30315,
30331, 30349, 30318 and 30311 would cost Fulton between $100
million and $200 million. He said his estimates are based on data
from the county, First Multiple Listing Service and City-Data.com.
Atlanta Neighborhood Development Partnership Executive Director
John O'Callaghan, whose group commissioned a study last year
examining market values vs. appraised values, said he couldn't
estimate how much mass refunds would cost. The group determined
that Fulton assessors systematically used unpaid mortgage amounts
to set fair market values and that in 2010, Fulton ZIP codes of
30310, 30349 and 30331 were poised to overpay by $34 million.
"To find just what the [overall] liability to the county would be
would be about a $10,000 research project," Mr. O'Callaghan said.
"My gut feeling," Georgia State University real estate professor
Alan Ziobrowski said, "is it's a lot of money."
Chief Appraiser Burt Manning has admitted that his office used
foreclosure seizures to set values, but he blames the state
Legislature for using the term "foreclosure" when it amended the
tax law for 2009, something that has since been clarified.
Asked about Morris' suit earlier this week, Mr. Manning said he
would have to check with the Board of Assessors' attorneys before
commenting. Lead defense attorney Allison Humphrey did not return
telephone calls seeking comment.
Emory University law professor Richard Freer, an expert in civil
procedure, said the argument for class-action status seems
reasonable in this case, so long as Morris' circumstances are
common to every other overtaxed homeowner. There's likely to be
enormous political pressure on the judge not to make a decision
that could devastate the county's finances, but it's his job to
uphold the law, Mr. Freer said.
"If the county's cheating, the county ought to be held liable," he
said. "My guess is that if the class is certified, they're going
to get out the checkbook and try to settle."
County Commissioner Robb Pitts brought up pending lawsuits when he
tried in vain to convince the commission to keep more money on
reserve when setting the 2011 budget last month. Though he met
with Morris last summer, he said he wasn't referring to his suit
when he cautioned the board about millions in potential lawsuit
payouts.
Pitts said he understands Mr. Morris' arguments, but he's not sure
a judge would agree. He said he also wonders what's in it for
Morris.
"Vengeance," Mr. Morris said when asked that question. He said
he's been at odds with the county since 2009, when the assessors'
office and the Board of Equalization wouldn't lower the nearly $6
million total value on 73 of his investment properties to the $2
million he paid for them.
"Vindictiveness without reason is wrong," he said. "But
vindictiveness with purpose is how you help your fellow man."
Marcella Vinocur, of Portland, Ore., said she could use that help.
She and her husband own two rental houses in depressed Atlanta
neighborhoods.
One, on Montreat Avenue (30310), they bought in 2009 for $15,000
and the county has it valued at $124,100. The other, on Fair
Street near Morehouse College (30314), they bought the same year
for $16,000 and the county values it at $137,600.
The Vinocurs paid about $4,000 in taxes on the two houses last
year. If the county assessed them at their sale prices, which
will be the maximum under a new law that went into effect this
year, starting with 2010 sales, their taxes would be about $550.
"Everyone needs to be compensated for paying taxes above and
beyond what they should be," Ms. Vinocur said. "It's robbery."
GREEN MOUNTAIN: Consolidated Amended Complaint Due Feb. 18
----------------------------------------------------------
Green Mountain Coffee Roasters, Inc., disclosed in its Feb. 3,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended December 25, 2010, that
plaintiffs in a consolidated securities fraud class action have
until Feb. 18, 2011, to file a consolidated amended complaint.
The Company and certain of its officers and directors are
currently subject to a consolidated putative securities fraud
class action and a consolidated putative stockholder derivative
action, each pending in the United States Court for the District
of Vermont, and a putative stockholder derivative action pending
in the Superior Court of the State of Vermont for Washington
County.
The consolidated putative securities fraud class action, organized
under the caption Horowitz v. Green Mountain Coffee Roasters,
Inc., Civ. No. 2:10-cv-00227, is pending in the United States
District Court for the District of Vermont before the Honorable
William K. Sessions, III. The underlying complaints in the
consolidated action allege violations of the federal securities
laws in connection with the Company's disclosures relating to its
revenues and its forward guidance. The complaints include counts
for violation of Section 10(b) of the Securities Exchange Act of
1934, as amended and Rule 10b-5 against all defendants, and for
violation of Section 20(a) of the Exchange Act against the officer
defendants. The plaintiffs seek to represent all purchasers of
the Company's securities between July 28, 2010 and September 28,
2010 or September 29, 2010. The complaints seek class
certification, compensatory damages, equitable and/or injunctive
relief, attorneys' fees, costs, and such other relief as the court
should deem just and proper. Pursuant to the Private Securities
Litigation Reform Act of 1995, 15 U.S.C. Sec. 78u-4(a)(3),
plaintiffs had until November 29, 2010 to move the court to serve
as lead plaintiff of the putative class. On December 20, 2010,
the court appointed Jerzy Warchol, Robert M. Nichols, Jennifer M.
Nichols, Marc Schmerler and Mike Shanley lead plaintiffs and
approved their selection of Glancy Binkow & Goldberg LLP and
Robbins Geller Rudman & Dowd LLP as co-lead counsel and the Law
Office of Brian Hehir and Woodward & Kelley, PLLC as liaison
counsel. On December 29, 2010 and January 3, 2011, two of the
plaintiffs in the underlying actions in the consolidated
proceedings, Russell Blank and Dan M. Horowitz, voluntarily
dismissed their cases without prejudice. Pursuant to a stipulated
motion granted by the court on November 29, 2010, the lead
plaintiffs are to file an amended consolidated complaint no later
than February 18, 2011, and defendants will move to dismiss that
complaint 60 days thereafter.
The Company and the other defendants intend to vigorously defend
the lawsuit. Additional lawsuits may be filed and, at this time,
the Company is unable to predict the outcome of these lawsuits,
the possible loss or range of loss, if any, associated with the
resolution of these lawsuits or any potential effect they may have
on the Company or its operations.
MANNKIND CORP: Pomerantz Law Firm Files Action Over AFFREZA
-----------------------------------------------------------
Pomerantz Haudek Grossman & Gross LLP has filed a class action
lawsuit against MannKind Corporation and certain of its officers.
The class action (Civil Action No.: 11-0114) pending in the United
States District Court for the Central District of California is on
behalf of a class of all persons or entities who purchased or
otherwise acquired MNKD securities during the period from June 25,
2010 through and including January 19, 2011 (the "Class Period").
The Complaint alleges violations of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5 promulgated
thereunder.
If you are a shareholder who purchased MNKD securities during the
Class Period and would like to serve as lead plaintiff for the
class, you have until April 1, 2011 to ask the Court to appoint
you. A copy of the complaint can be obtained at
http://www.pomerantzlaw.com/To discuss this action, contact
Rachelle R. Boyle at rrboyle@pomlaw.com or 888.476.6529 (or 888.4-
POMLAW), toll free. Those who inquire by e-mail are encouraged to
include their mailing address and telephone number.
The Claims
MannKind is a biopharmaceutical company focused on the discovery,
development and commercialization of therapeutic products for
diseases, such as diabetes and cancer, including its lead product
candidate, AFREZZA(R) (insulin human [rDNA origin]) Inhalation
Powder for the treatment of adult patients with Type 1 and Type 2
diabetes. The complaint alleges that, during the Class Period,
defendants issued materially false and misleading statements
regarding the Company's business and prospects for AFREZZA. The
defendants continuously hyped AFREZZA for the treatment of adult
patients with Type 1 and Type 2 diabetes for the control of
hyperglycemia, telling market observers that AFREZZA was one of
the most valuable products in the history of drug making, while
failing to disclose that MannKind's platform would require better
information for patients about the risks of AFREZZA. As a result
of defendants' false and misleading statements, MannKind's stock
traded at artificially inflated prices during the Class Period.
Then, on January 19, 2011, shortly before the market closed,
MannKind issued a press release announcing that the Company had
received a complete response letter from the FDA pertaining to the
Company's New Drug Application for AFREZZA. The FDA deferred
approving AFREZZA and requested two additional clinical trials
with the inhaler.
Prior to this news being released on January 19, 2011, MannKind's
stock began dropping as news of the FDA deferral leaked into the
market. The complaint alleges that, in fact, the FDA notice had
been received on January 18, 2011, and defendants had held off
informing shareholders. Trading was halted in MannKind stock on
January 19, 2011, and when trading resumed the next day,
MannKind's stock plunged $2.94 per share.
The Pomerantz Firm, with offices in New York, Chicago and
Washington, D.C., -- http://www.pomerantzlaw.com/-- focuses in
the areas of corporate, securities, and antitrust class
litigation. Founded by the late Abraham L. Pomerantz, known as
the dean of the class action bar, the Pomerantz Firm pioneered the
field of securities class actions. Today, more than 70 years
later, the Pomerantz Firm continues in the tradition he
established, fighting for the rights of the victims of securities
fraud, breaches of fiduciary duty, and corporate misconduct. The
Firm has recovered numerous multimillion-dollar damages awards on
behalf of class members.
CONTACT: Rachelle R. Boyle
POMERANTZ HAUDEK GROSSMAN & GROSS LLP
Telephone: 888-476-6529 (ext. 237)
E-mail: rrboyle@pomlaw.com
MULTIMEDIA GAMES: Awaits Ruling on Motion to Dismiss "Bussey" Suit
------------------------------------------------------------------
Multimedia Games, Inc., is still awaiting a ruling on its motion
to dismiss a class action lawsuit filed by Walter Bussey, et al.,
in Alabama.
Walter Bussey, et al., v. Macon County Greyhound Park, Inc., et
al., a civil action, was filed on March 8, 2010 in the United
States District Court for the Middle District of Alabama Eastern
Division against the Company, Macon County Greyhound Park, Inc.
(VictoryLand), as a corporation, International Gaming
Technologies, Cadillac Jack, Inc., Colossus, Inc., Rocket Gaming
Systems, LLC, Nova Gaming, LLC, and Bally Gaming, Inc. The
plaintiffs, who were patrons of VictoryLand, originally sought
actual damages, compensatory damages, treble damages and/or
punitive damages based on both Ala. Code, Sec 8-1-150(A), and the
Racketeer Influenced and Corruption Organizations Act, 18 U.S.C.
sec 1961(1) and claim, in part, that the defendants conspired to
promote gambling and/or to advance or profit from gambling
activity in violation of Ala. Code Sec. 13 A-12-23 and have
requested that the court certify the action as a Class Action as
required under the Federal Rules of Civil Procedure.
On April 28, 2010, the Company filed a motion to dismiss the
entire complaint pursuant to Rules 12(b)(2), (5) and (6) of the
Federal Rules of Civil Procedure based, in part, on the grounds
that the plaintiffs failed to state a claim against the Company
upon which relief could be granted. After the Company filed its
motion to dismiss, Plaintiffs voluntarily dismissed their RICO
claim, leaving only a claim for recovery of gambling losses under
Ala. Code Sec. 8-1-150(A). All briefing on the Company's motion
has been completed. The court is expected to rule on the motion
in the near future. The Company continues to vigorously defend
this matter. Given the inherent uncertainties in this litigation,
the Company is unable to make any prediction as to the ultimate
outcome.
No updates were reported in the Company's Feb. 3, 2011 Form 10-Q
filed with the U.S. Securities and Exchange Commission for the
quarter ended December 31, 2010.
MULTIMEDIA GAMES: Discovery Still Ongoing in "Hardy I" Suit
-----------------------------------------------------------
Multimedia Games, Inc., is still engaged in discovery related to a
class action lawsuit filed by Ozetta Hardy, which seeks to recover
gambling losses.
Ozetta Hardy v. Whitehall Gaming Center, LLC, et al., a civil
action, was filed against Whitehall Gaming Center, LLC (an entity
that does not exist), Cornerstone Community Outreach, Inc., and
Freedom Trail Ventures, Ltd., in the Circuit Court of Lowndes
County, Alabama. On June 3, 2010, Plaintiffs filed an amended
complaint adding the Company, International Gaming Technologies,
Bally, Inc., Eclipse Gaming Systems, LLC, Video Gaming
Technologies, Inc., Cadillac Jack, Inc., and AGS, LLC. The
plaintiffs, who were patrons of White Hall, seek recovery of
gambling losses based on Ala. Code, Sec 8-1-150(A) and have
requested that the court certify the action as a Class Action as
required under the Federal Rules of Civil Procedure. On July 2,
2010, the defendants removed the case to the United States
District Court for the Middle District of Alabama Northern
Division. On July 9, 2010, the Company filed a motion to dismiss
the complaint pursuant to Rules 12(b)(2), (5) and (6) of the
Federal Rules of Civil Procedure based, in part, on the grounds
that the plaintiffs failed to state a claim against the Company
upon which relief could be granted. Plaintiffs had until August
13, 2010, to respond to the motion. On September 7, 2010, the
court, without opinion, denied the Company's (and other
manufacturers') motion to dismiss. The court has entered a
scheduling order that bifurcates the case to allow for resolution
of class certification issues before consideration of the merits.
The parties are engaged in discovery on class certification
issues. The Company continues to vigorously defend this matter.
Given the inherent uncertainties in this litigation, the Company
is unable to make any prediction as to the ultimate outcome.
No updates were reported in the Company's Feb. 3, 2011 Form 10-Q
filed with the U.S. Securities and Exchange Commission for the
quarter ended December 31, 2010.
MULTIMEDIA GAMES: Motion to Dismiss "Hardy II" Suit Is Pending
--------------------------------------------------------------
Multimedia Games, Inc.'s motion to dismiss a class action lawsuit
filed by Ozetta Hardy remains pending, according to the Company's
Feb. 3, 2011, Form 10-Q filed with the U.S. Securities and
Exchange Commission for the quarter ended December 31, 2010.
Ozetta Hardy (II), a civil action, was filed on October 27, 2010,
in the United States District Court for the Middle District of
Alabama against the Company and other manufacturers of bingo
equipment, including International Gaming Technologies, Bally
Gaming, Inc., Eclipse Gaming Systems, LLC, Video Gaming
Technologies, Inc., Cadillac Jack, Inc., AGS, LLC, Nova Gaming,
LLC, Gateway Gaming, LLC, WMS Gaming, Inc., Rocket Gaming Systems,
LLC, and Konami Gaming, Inc. The plaintiffs, who were patrons of
any one of three bingo facilities in Alabama operated by the
Poarch Band of Creek Indians, seek recovery of gambling losses
based on Ala. Code, Sec 8-1-150(A) and have requested that the
court certify the action as a Class Action as required under the
Federal Rules of Civil Procedure.
The Company filed a motion to dismiss on December 14, 2010, on the
grounds that, among other things, the Poarch Band of Creek Indians
is a necessary and indispensible party to the case. Plaintiffs
have filed a response, but the court has not ruled on the
Company's motion. The Company continues to vigorously defend this
matter. Given the inherent uncertainties in this litigation, the
Company is unable to make any prediction as to the ultimate
outcome.
SHORETEL INC: "Berkovitz" Settlement Gets Preliminary Approval
--------------------------------------------------------------
A settlement in a shareholder derivative class action pending in
California against ShoreTel, Inc., was given preliminary approval,
according to the Company's Feb. 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
December 31, 2010.
On January 30, 2008, a purported shareholder derivative lawsuit
captioned Berkovitz v. Combs, et al., was filed in the Superior
Court of the State of California, County of Santa Clara, against
the Company (as a nominal defendant), its directors and certain
officers. The complaint purported to allege claims for breach of
fiduciary duty and other claims and seeks unspecified compensatory
damages and other relief based on essentially the same allegations
as the class action litigation. The Company and plaintiffs
reached an agreement in principle to settle the litigation in
February 2010, pursuant to which, without admitting any liability
or wrongdoing of any kind, the Company adopted certain corporate
remedial measures. This settlement agreement, which resolves all
the claims in the litigation, received preliminary Court approval
in November 2010.
SIMON & SCHUSTER: Lawyer in Suit Over Jimmy Carter Book Responds
----------------------------------------------------------------
Stephen Lowman, writing for The Washington Post, reports
David Schoen, one of the lawyers who filed a class action lawsuit
on Feb. 1 against former president Jimmy Carter and the publisher
Simon & Schuster, responded to an item about the complaint posted
on Political Bookworm. The suit alleges that Mr. Carter's 2006
book, "Palestine: Peace Not Apartheid" was marketed as a work of
non-fiction but is, in fact, "filled with demonstrable falsehoods,
omissions, and knowing misrepresentations intended to promote
Carter's agenda of anti-Israel propaganda."
Simon & Schuster, the book's publisher, called the lawsuit
"frivolous," "without merit" and "a chilling attack on free
speech."
Political Bookworm wrote about the lawsuit on Feb. 2. In an
email, Mr. Schoen said:
"It is not a matter of these 5 plaintiffs seeking $5 million based
on their purchase of a $27 book. They are merely class
representatives. There is no way to know how much in damages the
class members will be entitled to if they prevail until we can
know how big the class is. We will only know that after discovery
from the defendants; but it was a best-seller I believe.
Plaintiffs also seek punitive damages based on the knowing and
intentional nature of their conduct. Remember, [Simon & Schuster]
was contacted directly well in advance of this and they were
presented with lists of the factual inaccuracies and
misrepresentations . . . The response was nothing other than
Carter's re-invigorated campaign expressly telling the audience
that everything in the book is absolutely true as written.
"Mr. Carter is entitled to write or say anything in the world that
he wants, no matter how false, about Israel or any other subject.
But you can be sure [Simon & Schuster] had a purpose in marketing
it as a work of non-fiction that purports to depict these events
as they actually happened and then encouraged people to buy the
book on that basis. That was not a true representation of what
the book is, but they profited on that, knowing that it was not
what they said. If they wanted to market a Carter novel,
recounting things the way he would like them to be, that would
have appealed to a different audience. No one suggests any speech
should be suppressed. But if they tricked people into buying the
book based on false marketing, they should repay the purchase
price . . .
"It is odd for [Simon & Schuster] to take a self-righteous
position or try to make it a free speech issue. I am an
absolutist on free speech and have a record of 25 years as a civil
rights lawyer in the South and I would welcome you to read what
the [American Bar Association] has written about my work. This
has nothing to do with free speech or chilling anything -- other
than perhaps phony/false advertising and I am not sure who has an
interest in allowing that. I even voted for Carter, by the way."
SYNGENTA CROP: April 11 Atrazine Suit Settlement Conference Set
---------------------------------------------------------------
Amelia Flood, writing for The Madison St. Clair Record, reports a
settlement could be in the works in a proposed federal class
action over water contamination allegedly caused by atrazine, a
weed killer commonly used by farmers.
According to an order signed Feb. 3 by U.S. Magistrate Judge
Phillip Frazier, a settlement conference is set April 11 in a suit
led by the City of Greenville against Syngenta Crop Protection
Inc. and its Swiss parent company.
The parties to the Greenville case are to submit a settlement
conference statement under seal to the judge by April 4,
Judge Frazier's order states.
The conference is to be an informal discussion of settlement
prospects, the order states.
Judge Frazier's order mandates that the contents of the settlement
statement will not be disclosed unless by court order.
If the parties wish to call off the conference, they are to notify
the court at least 72 hours prior to the meeting.
Greenville filed the suit in U.S. Court for the Southern District
of Illinois last year.
It proposes to lead a class of municipalities and water providers
in Illinois, Kansas, Missouri, Ohio and other states against the
Syngenta defendants.
The plaintiffs claim that atrazine runs off farm fields into their
water supplies. They claim that they must then remediate the
atrazine levels in those water supplies.
Syngenta, the leading maker of atrazine, has tried to have the
federal suit, as well as six nearly identical proposed class
actions pending in Madison County, dismissed.
Stephen Tillery of St. Louis and his team of attorneys filed the
federal and state court cases.
The Madison County suits include Syngenta along with Growmark,
United Agri-Products, and other makers and distributors of the
herbicide as defendants.
Of the Madison County suits, only the Syngenta case has made any
progress.
It is currently embroiled in a number of discovery disputes
related to what documents several non-parties to the suit --
including the Heartland Institute, University of Chicago, and
Illinois Farm Bureau -- must turn over to the plaintiffs.
A hearing is set in the Madison County Syngenta case next week
before Madison County Circuit Judge William Mudge.
Kurtis Reeg and others represent the Syngenta defendants in both
suits.
U.S. District Court Judge J. Phillip Gilbert also oversees the
Greenville suit.
The 2004 Madison County suit is Madison case number 04-L-710.
The federal case is case number 3:10-cv-00188-JPG -PMF.
TD AMERITRADE: Motion to Dismiss "Ross" Lawsuit Still Pending
-------------------------------------------------------------
Motions filed by TD Ameritrade Corporation, et al., seeking to
dismiss an amended lawsuit captioned Ross v. Reserve Management
Company, Inc., et al., remain pending, according to the company's
Feb. 4, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended December 31, 2010.
In November 2008, a purported class action lawsuit was filed with
respect to the Yield Plus Fund. The lawsuit is captioned Ross v.
Reserve Management Company, Inc. et al. and is pending in the U.S.
District Court for the Southern District of New York. The Ross
lawsuit is on behalf of persons who purchased shares of Reserve
Yield Plus Fund. On November 20, 2009, the plaintiffs filed a
first amended complaint naming as defendants the fund's advisor,
certain of its affiliates and the Company and certain of its
directors, officers and shareholders as alleged control persons.
The complaint alleges claims of violations of the federal
securities laws and other claims based on allegations that false
and misleading statements and omissions were made in the Reserve
Yield Plus Fund prospectuses and in other statements regarding the
fund. The complaint seeks an unspecified amount of compensatory
damages including interest, attorneys' fees, rescission, exemplary
damages and equitable relief. On January 19, 2010, the defendants
submitted motions to dismiss the complaint. The motions are
pending.
The Company is unable to predict the outcome or the timing of the
ultimate resolution of the Pennsylvania action and the Ross
lawsuit, or the potential loss, if any, that may result from these
unresolved matters. However, management believes the outcome of
these pending proceedings is not likely to have a material adverse
effect on the financial condition, results of operations or cash
flows of the Company.
TD AMERITRADE: Final Hearing of "Spam" Settlement Set for April 7
-----------------------------------------------------------------
The hearing to consider final approval of a settlement in a
consolidated complaint filed by account holders of TD Ameritrade
Holding Corporation is set for April 7, 2011, according to the
Company's Feb. 4, 2011, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the fiscal year ended December 31,
2010.
A purported class action, captioned Elvey v. TD Ameritrade, Inc.,
was filed on May 31, 2007 in the United States District Court for
the Northern District of California. The complaint alleges that
there was a breach in TD Ameritrade, Inc.'s systems, which allowed
access to e-mail addresses and other personal information of
account holders, and that as a result account holders received
unsolicited e-mail from spammers promoting certain stocks and have
been subjected to an increased risk of identity theft. The
complaint requests unspecified damages and injunctive and other
equitable relief. A second lawsuit, captioned Zigler v. TD
Ameritrade, Inc., was filed on September 26, 2007, in the same
jurisdiction on behalf of a purported nationwide class of account
holders. The factual allegations of the complaint and the relief
sought are substantially the same as those in the first lawsuit.
The cases were consolidated under the caption In re TD Ameritrade
Accountholders Litigation. The Company hired an independent
consultant to investigate whether identity theft occurred as a
result of the breach. The consultant conducted four
investigations from August 2007 to June 2008 and reported that it
found no evidence of identity theft. On December 20, 2010, TD
Ameritrade, Inc. received preliminary Court approval of a proposed
class settlement agreement between TD Ameritrade, Inc. and
plaintiffs Richard Holober and Brad Zigler. Under the proposed
settlement, the Company will pay no less than $2.5 million in
settlement benefits. Total compensation to be paid to all
eligible members of the settlement class will not exceed $6.5
million, inclusive of any award of attorneys' fees and costs. In
addition, the settlement agreement provides that the Company will
retain an independent information technology security consultant
to assess whether the Company has met certain information
technology security standards. The proposed settlement is subject
to final approval by the Court. A hearing on final approval of
the proposed settlement is scheduled for April 7, 2011.
TODD SHIPYARDS: Defending Four Class Suits Related to Vigor Merger
------------------------------------------------------------------
Todd Shipyards Corporation is defending itself from four class
action lawsuits related to its merger agreement with Vigor
Industrial LLC, and Nautical Miles, Inc., a direct wholly owned
subsidiary of Vigor.
Between December 27, 2010 and January 13, 2011, the following
class action lawsuits were filed by purported stockholders of the
Company in the Superior Court of King County, Washington, in
connection with the Merger Agreement, the Offer and the Merger:
* Cheryl Marshall v. Todd Shipyards Corporation, et. al., Case
No. 10-2-4502701;
* Karl Graulich v. Todd Shipyards Corporation, et. al., Case
No. 10-2-45398-9;
* Oscar Lee Walker v. Todd Shipyards Corporation, et. al., Case
No. 11-2-02713-9; and
* Renee Sternheim and Isaac Sternheim v. Todd Shipyards
Corporation, et. al., Case No. 11-2-03059-8.
The actions variously name as defendants the Company, the
directors and executive officers of the Company, Woodbourne
Partners, L.P., Parent and Purchaser. The complaints generally
allege, among other things, that the Individual Defendants have
breached their fiduciary duties to the Company's stockholders,
including the duties of good faith, loyalty and due care, and that
Parent, Purchaser and Woodbourne Partners, L.P. aided and abetted
the Individual Defendants' alleged breaches of their fiduciary
duties. The complaints variously include, among others,
allegations that (i) the consideration to be received by the
holders of Shares is unfair, inadequate and less than the
"intrinsic value" of the Shares, (ii) the provisions of the Merger
Agreement unfairly protect the transactions proposed between the
Company and Parent, including through a grossly excessive
termination fee and inadequate go-shop period, (iii) the Top-Up is
coercive, (iv) the Individual Defendants did not seek competitive
bids prior to entering into the Merger Agreement, and (v) the
Schedule 14D-9 is misleading and/or insufficient. Plaintiffs in
the actions seek, among other relief, injunctive relief preventing
the defendants from consummating the Offer and the Merger,
compensatory damages and attorneys' fees and expenses. The
Company believes the complaints are without merit.
TOP SURGEONS: Sued in California Over Lap Band Surgery Deaths
-------------------------------------------------------------
Chie Akiba at Courthouse News Service reports that Top Surgeons,
Almont Ambulatory Surgery Center and Beverly Hills Surgery Center
caused multiple deaths by botching lap band surgeries on morbidly
obese people, a class action claims in Los Angeles Superior Court.
The lead plaintiff, a widower, says the medical offices are run by
two brothers with checkered histories, one of whom is on medical
probation, and one of whom lost his medical license after
California accused him of "dishonesty, unprofessional conduct,
[and] failing to disclose criminal convictions."
Lead plaintiff John Faitro claims his late wife, Laura Lee Faitro,
"saw and heard defendants' advertisements on TV and as a result,
hired and paid defendants, and each of them, to perform a Lap-Band
surgical procedure on Laura Lee Faitro."
The Faitros paid $12,220 for the lap-band surgery, about $3,000 of
which was covered by insurance, according to the complaint.
Mr. Faitro claims that on July 21, 2010, "Ishan Najib Shamaan,
M.D., assisted by Au Lee, M.D., performed a Lap-Band laparoscopic
surgery on Laura Lee Faitro at Top Surgeon's ambulatory surgical
suite located at 7320 Woodlake Avenue, Suite 320, West Hills,
California. During her surgery, Dr. Shamaan lacerated the liver
of Laura Lee Faitro in three (3) places, and had to call another
Top Surgeon doctor, Kevork George Tashjian, M.D., to assist him to
complete Laura Lee Faitro's Lap-Band surgical procedure."
None of those doctors, however, are named as defendants.
The defendants are Top Surgeons Inc., Top Surgeons LLC, 1 800 Get
Thin LLC, Almont Ambulatory Surgery Center, Beverly Hills Surgery
Center, Kambiz Beniamia Omidi, and Dr. Michael Omidi.
Mr. Faitro claims Top Surgeons discharged his wife despite her
complaints of severe abdominal pain, and that the pain was so
intense it forced her to seek help at the Simi Valley Hospital
emergency room. She died on July 26 of "multi-organ failure and
infarction due to shock, secondary to bleeding and sepsis in the
abdominal cavity," according to the complaint.
Mr. Faitro claims that in 2009, California accused Dr. Tashijian
of "gross negligence arising from surgeries performed on three
patients, two of whom died as a result of his gross negligence."
He claims that "despite the fact that the state of California was,
at all relevant times, and is attempting to revoke Dr. Tashjian's
medical license . . . the defendants, and each of them, have
failed and continue to fail to disclose these material facts to
their clients and patients on whom Dr. Tashjian continues to
perform Lap-Band surgeries."
The serious allegations continue.
Mr. Faitro claims that Kambiz Beniamia Omidi aka Julian Omidi is
president of Top Surgeons Inc., principal of Top Surgeons LLC,
president of Almont Ambulatory Surgery, and CEO of the Beverly
Hills Surgery Center.
Mr. Faitro says that California revoked Omidi's physician and
surgeon's license on June 19, 2009, "for dishonesty,
unprofessional conduct, failing to disclose criminal convictions,
and a 'penchant for dishonesty, to bend his position and shade his
statements to suit his needs, without consistent regard for the
truth."
The complaint continues: "Despite the fact that his physician and
surgeon's certificate has been revoked by the Medical Board of
California . . . Julian Omidi owns and manages defendants Top
Surgeons, Almont Ambulatory Surgery Center, and Beverly Hills
Surgery Center, all of which routinely perform Lap Band
surgeries."
Defendant Dr. Michael Omidi is chief of staff and director of
surgery for Top Surgeons, Almont Ambulatory Surgery Center, and
Beverly Hills Surgery Center, according to the complaint.
Mr. Faitro says, "the state of California revoked Michael Omidi's
physician and surgeon's license effective Oct. 3, 2008 for aiding
and abetting the unlicensed practice of medicine and for gross
negligence in the treatment of three (3) patients, but his license
revocation has been stayed for a period of three (3) years of
probation. According to the Medical Board of California, Michael
Omidi holds no board certification."
Despite their checkered histories, the complaint states,
Julian and Michael Omidi advertise themselves as "top rated
surgical specialists" and "specially trained, hand-picked board
certified surgeons" who provide "a higher level of care" with a
"nationally recognized, expert and caring team," who "go beyond
the standard of care."
Mr. Faitro says the Omidis know that is not the case, that their
"representations are false and deceptive and highly likely to
deceive consumers," and that the Omidis' claims "go far beyond
mere 'puffery.'"
The complaint adds: "On December 7, 2010, the Health Officer for
Los Angeles County requested the FDA to investigate the
defendants' advertising of their Lap-Band surgeries because the
advertising 'inadequately informs consumers of potential risks'
and 'fail to provide the relevant warnings, precautions, side
effects, and contraindications related to the procedure.'"
The complaint also object to "defendants' use of "fake newspaper
headline stating, 'Insurance Reform May Stop PPO Insurance
Coverage for the Lap-Band.'" The class claim this ad "conveys a
sense of urgency that if the consumer doesn't rush and make an
appointment, he or she may lose the chance to get the Lap-Band
surgery paid for by their PPO insurance coverage."
Also, the class claims: "Defendants have advertised that their
Lap-Band surgeries are 'safe' and a '1-Hour' procedure . . . [but]
the Lap-Band surgery requires several hours of post-operative
recovery in an out-patient setting and is not a simple '1 hour'
process as advertised by defendants."
Finally, the class claims that "the published morbidity rates for
Lap Band surgeries are between 0.02% - 0.05% (or between 2 and 5
deaths per 10,000 patients). However, plaintiffs are aware of at
least four (4) patients of the defendants who died within days of
undergoing Lap Band surgeries performed by the Defendants. . . .
Even assuming defendants have performed 5,000 Lap Band surgeries
(which is highly doubtful), these four (4) deaths alone exceed the
published mortality rates."
Joining Faitro as a class representative are Arturo and Elvia
Renteria, for the estate of Ana Renteria.
The class seeks "restitution and disgorgement and damages for
unfair competition and false advertising.
The Plaintiffs are represented by:
Alexander Robertson IV, Esq.
ROBERTSON & ASSOCIATES, LLP
880 Hampshire Road, Suite B
Westlake Village, CA 91361
Telephone: (805)418-9900
E-mail: arobertson@rvcdlaw.com
TYSON FOODS: Court Still to Set Trial Date for Water Suit
---------------------------------------------------------
Tyson Foods, Inc., is still waiting for the court to set a date
for trial of a lawsuit in Oklahoma, according to the Company's
Feb. 4, 2011, Form 10-Q filed with the Securities and Exchange
Commission for the quarter ended January 1, 2011.
On October 23, 2001, a putative class action lawsuit styled R.
Lynn Thompson, et al. vs. Tyson Foods, Inc. was filed in the
District Court for Mayes County, Oklahoma by three property owners
on behalf of all owners of lakefront property on Grand Lake O' the
Cherokees. Simmons Foods, Inc. and Peterson Farms, Inc. also are
defendants. The plaintiffs allege the defendants' operations
diminished the water quality in the lake thereby interfering with
the plaintiffs' use and enjoyment of their properties. The
plaintiffs sought injunctive relief and an unspecified amount of
compensatory damages, punitive damages, attorneys' fees and costs.
While the District Court certified a class, on October 4, 2005,
the Court of Civil Appeals of the State of Oklahoma reversed,
holding the plaintiffs' claims were not suitable for disposition
as a class action. This decision was upheld by the Oklahoma
Supreme Court and the case was remanded to the District Court with
instructions that the matter proceed only on behalf of the three
named plaintiffs. Plaintiffs seek injunctive relief, restitution
and compensatory and punitive damages in an unspecified amount in
excess of $10,000. The Company and the other defendants have
denied liability and asserted various defenses. The defendants
have requested a trial date, but the court has not yet scheduled
the matter for trial.
UGI CORP: Obtains Preliminary Okay of "Swigers" Suit Settlement
---------------------------------------------------------------
UGI Corp. obtained preliminary approval of a settlement of a class
action lawsuit filed by Samuel and Brenda Swiger in Monongalia
County, West Virginia, according to the UGI's Feb. 4, 2011 Form
10-Q filed with the Securities and Exchange Commission for the
quarter ended Dec. 31, 2010
In 1996, a fire occurred at the residence of Samuel and Brenda
Swiger when propane that leaked from an underground line ignited.
In July 1998, the Swigers filed a class action lawsuit against
AmeriGas Propane, L.P. (named incorrectly as "UGI/AmeriGas,
Inc."), in the Circuit Court of Monongalia County, West Virginia,
in which they sought to recover an unspecified amount of
compensatory and punitive damages and attorney's fees, for
themselves and on behalf of persons in West Virginia for whom the
defendants had installed propane gas lines, resulting from the
defendants' alleged failure to install underground propane lines
at depths required by applicable safety standards. On
December 14, 2010, AmeriGas OLP and its affiliates entered into a
settlement agreement with the class, which was preliminarily
approved by the Circuit Court of Monongalia County on January 13,
2011.
In 2005, the Swigers also filed what purports to be a class action
in the Circuit Court of Harrison County, West Virginia against
UGI, an insurance subsidiary of UGI, certain officers of UGI and
AmeriGas Propane, Inc., and their insurance carriers and insurance
adjusters. In the Harrison County lawsuit, the Swigers are seeking
compensatory and punitive damages on behalf of the putative class
for alleged violations of the West Virginia Insurance Unfair Trade
Practice Act, negligence, intentional misconduct, and civil
conspiracy. The Swigers have also requested that the Court rule
that insurance coverage exists under the policies issued by the
defendant insurance companies for damages sustained by the members
of the class in the Monongalia County lawsuit. The Circuit Court
of Harrison County has not certified the class in the Harrison
County lawsuit at this time and, in October 2008, stayed that
lawsuit pending resolution of the class action lawsuit in
Monongalia County. The Company believes it has good defenses to
the claims in the action.
UGI CORP: Appeals From AmeriGas Suits Settlement Approval Pending
-----------------------------------------------------------------
Appeals from the final approval of a settlement resolving lawsuits
over portable propane grill cylinders filed against various
subsidiaries of UGI Corp. remain pending, according to the
Company's Feb. 4, 2011, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended Dec. 31, 2010.
On May 27, 2009, AmeriGas Propane, Inc., was named as a defendant
in a purported class action lawsuit in the Superior Court of the
State of California in which plaintiffs are challenging AmeriGas
OLP's weight disclosure with regard to its portable propane grill
cylinders. The complaint purports to be brought on behalf of a
class of all consumers in the state of California during the four
years prior to the date of the California complaint, who exchanged
an empty cylinder and were provided with what is alleged to be
only a partially filled cylinder. The plaintiffs seek
restitution, injunctive relief, interest, costs, attorneys' fees
and other appropriate relief.
Since that initial suit, various AmeriGas entities have been named
in more than a dozen similar suits that have been filed in various
courts throughout the United States. These complaints purport to
be brought on behalf of nationwide classes, which are loosely
defined as including all purchasers of liquefied propane gas
cylinders marketed or sold by AmeriGas OLP and another
unaffiliated entity nationwide. The complaints claim that
defendants' conduct constituted unfair and deceptive practices
that injured consumers and violated the consumer protection
statutes of at least thirty-seven states and the District of
Columbia, thereby entitling the class to damages, restitution,
disgorgement, injunctive relief, costs and attorneys' fees. Some
of the complaints also allege violation of state "slack filling"
laws. Additionally the complaints allege that defendants were
unjustly enriched by their conduct and they seek restitution of
any unjust benefits received, punitive or treble damages, and pre-
judgment and post-judgment interest. A motion to consolidate the
purported class action lawsuits was heard by the Multidistrict
Litigation Panel on September 24, 2009, in the United States
District Court for the District of Kansas. By Order, dated
October 6, 2009, the MDL Panel transferred the pending cases to
the United States District Court for the Western District of
Missouri. The AmeriGas entities named in the consolidated class
action lawsuits have entered into a settlement agreement with the
class. On May 19, 2010, the United States District Court for the
District of Kansas granted the class's motion seeking preliminary
approval of the settlement. On October 4, 2010, after the
expiration of the time in which claims were, or could have been,
made by class members, the District Court ruled that the
settlement was fair, reasonable and adequate to the class and
granted final approval of the settlement. Two parties have
appealed that final order and the matter is now awaiting review by
the Eighth Circuit Court of Appeals.
UNION PACIFIC: Continues to Defend Antitrust Suits
--------------------------------------------------
Union Pacific Corporation continues to defend itself from
antitrust class action lawsuits filed by indirect and direct
purchasers, according to the Company's Feb. 4, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
fiscal year ended December 31, 2010.
Twenty small rail shippers (many of whom are represented by the
same law firms) filed virtually identical antitrust lawsuits in
various federal district courts against Union Pacific and four
other Class I railroads in the U.S. The original plaintiff filed
the first of these claims in the U.S. District Court in New Jersey
on May 14, 2007, and the additional plaintiffs filed claims in
district courts in various states, including Florida, Illinois,
Alabama, Pennsylvania, and the District of Columbia. These suits
allege that the named railroads engaged in price-fixing by
establishing common fuel surcharges for certain rail traffic.
The Company received additional complaints following the initial
claim, increasing the total number of complaints to 30. In
addition to suits filed by direct purchasers of rail
transportation, a few of the suits involve plaintiffs alleging
that they are or were indirect purchasers of rail transportation
and seek to represent a purported class of indirect purchasers of
rail transportation that paid fuel surcharges. These complaints
added allegations under state antitrust and consumer protection
laws. On November 6, 2007, the Judicial Panel on Multidistrict
Litigation ordered that all of the rail fuel surcharge cases be
transferred to Judge Paul Friedman of the U.S. District Court in
the District of Columbia for coordinated or consolidated pretrial
proceedings. Subsequently, the direct purchaser plaintiffs and the
indirect purchaser plaintiffs filed Consolidated Amended Class
Action Complaints against Union Pacific Railroad Company and three
other Class I railroads.
One additional shipper filed a separate antitrust suit during
2008. Subsequently, the shipper voluntarily dismissed the action
without prejudice.
On October 10, 2008, Judge Friedman heard oral arguments with
respect to the defendant railroads' motions to dismiss. In a
ruling on November 7, 2008, Judge Friedman denied the motion with
respect to the direct purchasers' complaint, and pretrial
proceedings are underway in that case. On December 31, 2008, Judge
Friedman ruled that the allegations of the indirect purchasers
based upon state antitrust, consumer protection, and unjust
enrichment laws must be dismissed. He also ruled, however, that
the plaintiffs could proceed with their claim for injunctive
relief under the federal antitrust laws, which is identical to a
claim by the direct purchaser plaintiffs.
The indirect purchasers appealed Judge Friedman's ruling to the
U.S. Court of Appeals for the District of Columbia. On April 16,
2010, the U.S. Court of Appeals for the District of Columbia
affirmed Judge Friedman's ruling dismissing the indirect
purchasers' claims based on various state laws. On June 8, 2010,
the court rejected the indirect purchasers' requests for a
rehearing of their appeal and a hearing en banc by the entire
court. On September 8, 2010, the indirect purchaser plaintiffs
filed a Petition for Certiorari with the U.S. Supreme Court. The
railroad defendants filed their response on November 9, 2010,
urging the Court not to review the lower courts' decisions. On
December 13, 2010, the U.S. Supreme Court denied the indirect
purchaser plaintiffs' Petition for Certiorari.
The direct purchaser plaintiffs filed their motion for class
certification on March 18, 2010. The railroad defendants filed
their opposition to this motion on July 1, 2010. Judge Friedman
conducted a hearing on October 6 and 7, 2010, on the class
certification issue and has yet to issue a decision.
The Company denies the allegations that its fuel surcharge
programs violate the antitrust laws or any other laws. The
Company believes that these lawsuits are without merit, and the
Company will vigorously defend its actions. Therefore, the Company
currently believes that these matters will not have a material
adverse effect on any of its results of operations, financial
condition, and liquidity.
UNITED STATES: Keepseagle Class Action Settlement Hearing Nears
---------------------------------------------------------------
Key deadlines are fast approaching as the Court-ordered process of
officially notifying Native American farmers and ranchers about
the $760 million Keepseagle class action discrimination settlement
draws to a close.
Class members' rights may be affected by the settlement even if
they do not act. Over the past two months, Native American
farmers and ranchers around the country received detailed
information about their legal rights and options by postal mail
and through print and radio notices. Those who wish to exclude
themselves from or object to the settlement must do so by February
28, 2011. Those who wish to file claims for cash and loan
forgiveness must register at http://www.IndianFarmClass.com/or
call 1-888-233-5506. These claims must be filed by December 24,
2011 (unless Court action dictates a later date). The U.S.
District Court for the District of Columbia will consider whether
to grant final approval of the settlement at a hearing on
April 28, 2011 at 10:00 a.m.
Class members and other interested persons should visit
http://www.IndianFarmClass.com/or call 1-888-233-5506 for
complete information, including the detailed notice and details on
how to opt out, comment, or object. Media are requested to
include the Web site and phone number in pieces about the
settlement.
Class members wishing to remain in the settlement can also
register to receive a Claims Package through the Web site or toll-
free number, or write to:
Keepseagle Settlement Administrator
PO Box 3560
Portland, OR 97208-3560
Contact:
Class Counsel:
Joseph Sellers, Esq.
Christine Webber, Esq.
COHEN MILSTEIN SELLERS & TOLL PLLC
Washington, DC, 202-408-4600
E-mail: http://www.cohenmilstein.com/
UNITED STATES: Quapaw Tribe Files Breach of Trust Class Action
--------------------------------------------------------------
Nine individual members of the Quapaw Tribe of Oklahoma have filed
a class action, breach-of-trust lawsuit on behalf of all similarly
situated Quapaw Tribal members in the U.S. Court of Federal Claims
in Washington, D.C. Grace M. Goodeagle v. United States, No. 11-
00009. The breach-of-trust claims arise from the federal
government's alleged mismanagement of individual money accounts
(IIM) accounts, and other money owed to Tribal members under
leases, contracts, and permits. The lawsuit also claims
reparations for the Government's alleged mismanagement of the
Tribal members' allotment lands, including massive environmental
contamination resulting in one of the nation's most notorious
hazardous waste sites, Tar Creek.
"This lawsuit represents an important step forward for members of
the Quapaw Tribe," said Nancie G. Marzulla, one of the attorneys
representing the Tribal members in the litigation. "Having
grossly abused the Tribal members' trust for so many years, it is
only fair that the federal government now pay back the money that
rightfully belongs to the Tribal members," added Ms. Marzulla.
An accounting of the federal government's historical management of
Quapaw trust assets was recently completed. This accounting
identifies and details the Government's mismanagement of numerous
individual Tribal member trust assets, including the Government's
failure to collect monies due and owing under leases, permits, and
agreements for the Quapaw Tribe and for the restricted interest
holders of 13 allotments and of the class they represent, the
degradation of the natural resources on the land and the
environment, and the waste and dissipation of other trust assets,
all of which the complaint alleges was the result of Government
mismanagement and negligence.
Nancie Marzulla and Roger Marzulla's Washington, D.C.-based law
firm focuses on litigation designed to obtain just compensation
and reparations for claimants in the U.S. Court of Federal Claims.
Nancie Marzulla and Roger Marzulla have been selected by their
peers to be included on the list of Best Lawyers of America. For
more information visit http://www.marzullalaw.com/or call
202-822-6760.
* History Sniffing Sparks Consumer Class Actions
------------------------------------------------
E. Todd Presnell and Sepideh C. Khansari, writing for Law.com,
report that in the criminal trial of the university student who
hacked into vice-presidential candidate Sarah Palin's e-mail
account during the 2008 campaign, federal prosecutors called
4chan.org founder Christopher Poole to, among other things,
explain to the jury the meaning of Internet slang terms such as
"lurkers," "peeps," "troll," and "rickrolling." This high-profile
case demonstrates how words and phrases originating from new
technology ultimately make their way into the courtroom. The
latest courtroom entry is "history sniffing."
History sniffing is a Web site practice that aims to circumvent
computer privacy. A company can ascertain a history of Web sites
visited with a web browser by surreptitiously running code inside
the browser. The code reports the history back to the company,
which creates a user profile -- all without an individual's
knowledge or consent. Companies use history sniffing to target
advertising based on a person's interests, a phenomenon known as
"behavioral advertising."
HISTORY SNIFFING GOES TO COURT
History sniffing is now the centerpiece of a growing number of
consumer class action lawsuits against name-brand companies
seeking unspecified damages arising from invasion of privacy,
common law tort claims, and statutory violations. And these
history-sniffing actions and resulting lawsuits have attracted
attention from other class action lawyers, academic researchers,
investigative journalists, and federal regulators.
In 2009 academic researchers at the University of California,
Berkeley, School of Law published a report finding that more than
50 percent of the popular Web sites in their sample were using
Flash cookies to store user information and preferences and that
some sites were even using technology that "respawned" cookies
after they were deleted. These research findings were the
catalyst for class action lawsuits, including one against
Quantcast that recently settled for the sum of $2.4 million.
But lawsuits over history sniffing reached a higher level
following an October 2010 study conducted by researchers at the
University of California, San Diego. These academic researchers
conducted an empirical study of websites that revealed 46 Internet
sites that were using history sniffing practices to track
consumers' browsing histories. They studied some 50,000 sites and
concluded that roughly 500 of the sites had the capacity for data
collection. Although the latest versions of certain web browsers
such as FireFox, Chrome, and Safari automatically provide means to
protect from history sniffing practices, Internet Explorer, whose
global browser market share fell below 50 percent for the first
time only recently, does not. This leaves numerous Internet users
vulnerable to history sniffing attacks.
Following this report, December 2010 ushered in a new round of
class action suits. On December 3, 2010, a complaint was filed
against Midstream Media International, N.V., a company named in
the UC San Diego report that operates the "youporn" Web site. The
complaint alleges that, as stated in the report, Midstream engages
in history sniffing by using methods to track Web sites that its
users visit without their knowledge or consent. The plaintiffs
seek damages due to deprivation of their allegedly economically
valuable confidential information. The case remains in its infant
stages at this time.
Five days later, on December 8, 2010, Sonal Bose, a New York
resident, filed a class action suit against Interclick in the U.S.
District Court for the Southern District of New York, for
monitoring her web browser "in ways she would not expect or
detect" and invading her privacy, misappropriating her personal
information, and interfering with computer use. According to
Ms. Bose, Interclick uses tracking mechanisms that consumers
cannot reasonably block or delete. This is allegedly accomplished
by online advertisements that include hidden code to "sniff" her
browser history by depositing Adobe Flash "local shared objects"
on Bose's computer to monitor her online activities. The putative
class asserts claims under the Computer Fraud and Abuse Act, the
Electronic Communication Privacy Act, and the state deceptive
practices act, as well as common law claims for trespass, breach
of implied contract, and unjust enrichment. Bose's purported
damages are rather undefined; she claims that her confidential
information has an economic value of which she was deprived, and
that Interclick breached an implied contract that arose between
them.
In response to the lawsuit filed by Ms. Bose, Interclick stated
that it continually endeavors to be sensitive to the privacy
concerns of its customers and the general public and that it only
engaged in history sniffing for eight months and stopped as the
technique was not successfully matching advertisers to groups of
Internet users. Interclick denied that the sites that engaged its
services were aware of its experimentation with history sniffing
and vowed to defend the lawsuit.
But Ms. Bose and her lawyers took the fight beyond Interclick. Two
weeks later, on December 23, 2010, Ms. Bose filed a related class
action suit in the U.S. District Court for the Southern District
of New York, against McDonald's, CBS, Mazda Motor of America,
Microsoft, and 50 John Does. In this suit, Ms. Bose alleges that
the defendant companies engaged the services of Interclick to
conduct various online advertising campaigns and, in this
relationship, conspired with Interclick to circumvent privacy
controls and create consumer profiles to be used for behavioral
advertising. Ms. Bose claims that these corporations, like
Interclick, violated the Computer Fraud and Abuse Act, the
Electronic Communications Privacy Act and other statutes. And the
alleged damages are similarly undefined.
In the midst of these December 2010 class actions, The Wall Street
Journal published its investigative findings into corporate use of
online tracking methods used in smartphone "apps" and other
software applications to obtain personal information. This
investigative study found that, of 101 popular smartphone apps, 56
transmitted the phone's unique device identification to third-
party companies without the owner's knowledge or consent.
A rush to the courthouse ensued. On December 23, 2010, two
lawsuits were filed against Apple and some of the companies that
supply apps to its iPhone and iPad products, including Pandora,
The Weather Channel, and Dictionary.com. Lalo v. Apple, et al,;
Freeman v. Apple, et al. These class actions were brought on
behalf of "owners and users of the Apple iPhone and iPad who were
the victims of privacy violations and unfair business practices"
by the defendant companies. These class actions involve claims
that certain applications downloaded by putative class members to
their iPhones and iPads transmit their personal, identifying
information to advertising networks without obtaining their
consent. The plaintiffs claim this activity occurs even though
Apple claims to review each application before offering it to its
user, purports to have implemented application privacy standards,
and claims to have created strong privacy protections for its
customers.
The onslaught of history sniffing class actions filed in
December 2010 forecasts that other, copycat class action suits
will continue. The Quantcast seven-figure settlement in the Flash
cookies litigation likely indicates that plaintiffs and their
lawyers expect similar high-dollar settlements in the newer
history sniffing class actions. But the recent history sniffing
class actions are still relatively new and whether they are
settled early or proceed toward trial remains to be seen.
Potential government intervention at the federal level could
significantly impact the long-term future of history sniffing
litigation. In its recently issued report on consumer privacy,
the Commerce Department specifically raised the question whether a
private right of action, including class actions, should exist for
online privacy breaches, or whether FTC regulatory controls and
remedies are preferable. This report remains in the comment
period and, while class action suits in this area will continue to
proliferate in the short term, their existence in the long-term is
in at least some doubt.
The FTC is also in the mix. In December 2010, the agency proposed
the creation of a "Do Not Track" registry for Internet users that
would be modeled after its "Do Not Call" registry. The FTC
believes that the proposed registry would be an easy-to-use
mechanism for consumers that would run through the FTC or perhaps
some private entity. But the rule, which has only been proposed,
will receive sharp rebuttal from advertisers and marketers, and
some commentators doubt that the rule will become effective any
time soon.
History sniffing, the latest Internet-induced jargon to hit the
courtroom, has entered the fray with vigor even while its long-
term existence is in doubt. And despite questions about
speculative and undefined damages, expect class action suits
involving history sniffing to proliferate, particularly in the
short term, while regulators remain at work debating the
appropriate government solution.
E. Todd Presnell is a partner of Miller & Martin PLLC, and a
member of the Commercial Litigation Committee of DRI -- The Voice
of the Defense Bar. Mr. Presnell practices in his firm's
Nashville, Tenn., office, where he concentrates on employment and
commercial litigation. He is also licensed to practice in
Georgia. Mr. Presnell has recently served as the chair of DRI's
Young Lawyers Committee, vice chair of his firm's litigation
department, and is listed in the 2008 edition of The Best Lawyers
in America. Sepideh C. Khansari is an associate in the litigation
department at Miller & Martin. She is fluent in Farsi and
Turkish, holds an MBA from Middle Tennessee University and a JD
from Washington and Lee University. While in law school,
Ms. Khansari served in the Judicial Clerkship program and, as a
Kirgis Fellow, studied abroad at Yeditepe University in Istanbul,
Turkey.
* Lawmaker Introduces Legislation for Class Action Defendants
-------------------------------------------------------------
The Valley News reports a Riverside County lawmaker introduced
legislation on Feb. 7 that would give defendants in lawsuits the
right to appeal if a court grants "class-action" status in
lawsuits filed against them.
Assemblyman Brian Nestande, R-Riverside, said AB 271 is needed to
"level the playing field for class action defendants and bring
California into line with other states and with federal law."
"It will also help California's economy recover by making the
state a more attractive place to do business and thus bring much-
needed jobs to the state," he said.
Under the proposed measure, if a lower court judge certifies a
"class" of victims in a civil suit, a defendant would have the
option of appealing that decision to a higher court before the
case is litigated before a judge or jury.
In California, defendants in class action lawsuits currently have
no recourse once certification has been granted, whereas
plaintiffs can appeal if a judge refuses to certify a class, which
can include countless unnamed victims, according to the Civil
Justice Association of California.
"Ranking after ranking shows that California has one of the worst
legal climates in the country, and that's a major reason
businesses are reluctant to locate or expand operations here,"
said CJAC President Kimberly Stone. "This bill is a long overdue
measure that would simply bring balance and fairness to California
class action law by giving defendants the same appeal rights that
plaintiffs already enjoy."
The association, which is best known for backing Proposition 64,
the anti-shakedown lawsuit measure approved by voters in 2004,
cited surveys that two-thirds of corporate attorneys say their
clients rank the prospect of litigation high on the list of pros
and cons regarding whether to locate in a state.
Mr. Nestande said his bill will strive to emulate federal law,
which provides equal opportunity for both sides in a lawsuit to
contest class certification before trial.
*********
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
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Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
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