/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/110214.mbx C L A S S A C T I O N R E P O R T E R Monday, February 14, 2011, Vol. 13, No. 31 Headlines AEGEAN MARINE: Robbins Geller Files Class action in New York AMERICAN HONDA: Sued Over Honda Civic Braking System Defect AMERICAN TACK: Recalls 261,000 LED Night Lights APARTMENTS DOWNTOWN: Class Action to Benefit Students ASPEN TECH: Continues to Defend "380544 Canada" Class Action ATLAS ENERGY: Enters Into MOU to Settle Merger-Related Class Suits AVX CORP: Still Defends Environmental Contamination Lawsuit BEAZER HOMES: Obtains Final Approval of ERISA Suit Settlement BEAZER HOMES: Still Awaits Court Okay of N.C. Suit Settlement BEAZER HOMES: Still Defends "Drywall" Suit in Florida BEAZER HOMES: Dismissed From "RESPA" Lawsuit in California BECTON DICKINSON: Plea for Appellate Review of Settlement Pending BERNARD MADOFF: JPMorgan Wants "Backdoor Class Action" Moved BOTTOMLINE TECHNOLOGIES: Awaits Outcome of Settlement Order Appeal BRINKER INTERNATIONAL: Still Defending California Class Suit CANADA: May Face Class Action Over Security Perimeter Agreement CAPSTONE TURBINE: Appeals Still Pending in IPO Suit Settlement CAVALRY PORTFOLIO: Sued for Violation of ICAA Section 8b CITIGROUP INC: Kentucky Homeowners Drop Foreclosure Class Action COMMONWEALTH FINANCIAL: Maurice Blackburn Files Class Action COVENTRY HEALTH: Signs Definitive Settlement Doc on Louisiana Suit DIONEX CORP: Defends Class Suit Related to Thermo Fisher Merger DOWNER EDI: Faces Class Action Over Waratah Train Project E.I. DUPONT: Defends 4 More Drinking Water Suits in 3 States E.I. DUPONT: Continues to Defend PI Claims in West Virginia Suit EMCORE CORP: Still Awaits Ruling on IBEW's Motion for Lead Counsel FRANKLIN RESOURCES: Continues to Defend Consolidated Suit in Md. FRANKLIN RESOURCES: Finally Settles "Huneault" and "Fischer" Suits HARBOR CAPITAL: Faces Class Action Over Unsolicited Fax Ads HEFFLER RADETICH: Sued for Paying Bogus Settlement Fund Claims HOOVER INC: Recalls 142,000 Hoover(R) WindTunnel Canister Vacuums IKEA ISRAEL: Communities Mull Class Action Over Feb. 5 Fire INSURANCE COUNCIL: Queensland Flood Victims Mull Class Action JOHN THOMAS FINANCIAL: Sued for Violation of New York Labor Law KEYNOTE SYSTEMS: Awaits Outcome of Appeal of Settlement Order LASERCARD CORP: Weiss & Lurie Files Class Action in California MATRIX SERVICE: Final Settlement Payments Expected This Month MATRIXX INITIATIVES: Expects Decision in "Siracusano" Suit by June MATRIXX INITIATIVES: Continues to Defend "Shapiro" Suit in Arizona MATRIXX INITIATIVES: Defends "Schneider" Suit Over Wonder Merger MATRIXX INITIATIVES: Seeks Final OK of Zicam Economic Injury Suits META FINANCIAL: Still Defends Suits Over Certificates of Deposit META FINANCIAL: Continues to Defend Two Stockholder Suits in Iowa MIKI HOUSE: Recalls 10 Windbreaker Jackets NATIONAL CREDIT: Sued Over Unlawful Debt Collection Practices NATIONAL FOOTBALL LEAGUE: Eagan Avenatti Files Class Action NAVISITE INC: Being Sold for Too Little, Mass. Suit Claims NETWORK ENGINES: Awaits Outcome of Appeals on IPO Suit Settlement NOVA SCOTIA HOME: Two Former Residents File Class Action OPENWAVE SYSTEMS: Appeals on Settlement in IPO Suit Remain Pending PANTRY INC: Continues to Defend Consolidated Suit in Kansas PANTRY INC: Still Defends "Amason" Suit in Alabama PENN VIRGINIA: Enters Into MOU With PVG Merger Class Plaintiffs SACRAMENTO, CA: Sued Over Illegal Reduction of Medical Coverage SOLERA HOLDINGS: Still Defends "Total Loss Estimation" Lawsuit SOUTHWEST AIRLINES: Motion to Dismiss "Leonelli" Suit Pending SOUTHWEST AIRLINES: Motion to Dismiss "Church" Suit Pending SOUTHWEST AIRLINES: Defends Consolidated Lawsuit in Florida STERIS CORP: Records $19.8MM Pre-Tax Charge on Suit Settlement SYNOVUS FINANCIAL: Accused of Defrauding Seven Falls Investors TACO BELL: Turns Class Action Into Facebook Marketing Campaign TELENAV INC: Court Appoints David Smith as Lead Plaintiff TERREMARK WORLDWIDE: Defends Four Lawsuits Related to Verizon Deal TOWERS WATSON: Still Defends "Watson Wyatt" Merger-Related Suit WARNER MUSIC: Digital Music Download Lawsuit Back in Trial Court WORLEY CATASTROPHE: Sued Over Non-Payment of Overtime Wages * HF211 Bill Aims to Curtail Consumer Fraud Class Actions ********* AEGEAN MARINE: Robbins Geller Files Class action in New York ------------------------------------------------------------ Robbins Geller Rudman & Dowd LLP on Feb. 9 disclosed that a class action has been commenced in the United States District Court for the Southern District of New York on behalf of purchasers of Aegean Marine Petroleum Network Inc. common stock between January 4, 2010 and February 3, 2011, inclusive, seeking to pursue remedies under the Securities Exchange Act of 1934. If you wish to serve as lead plaintiff, you must move the Court no later than 60 days from February 9, 2011. If you wish to discuss this action or have any questions concerning this notice or your rights or interests, please contact plaintiff's counsel, Samuel H. Rudman or David A. Rosenfeld of Robbins Geller at 800/449-4900 or 619/231-1058, or via e-mail at djr@rgrdlaw.com If you are a member of this Class, you can view a copy of the complaint as filed or join this class action online at http://www.rgrdlaw.com/cases/aegeanmarine/ Any member of the putative class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. The complaint charges Aegean Marine and certain of its officers and directors with violations of the Exchange Act. Aegean Marine operates as a marine fuel logistics company that physically supplies and markets refined marine fuel and lubricants to ships in port and at sea. The complaint alleges that, throughout the Class Period, defendants failed to disclose material adverse facts about the Company's true financial condition, business and prospects. Specifically, the complaint alleges: (a) that the Company was experiencing declining demand for its products and services, especially in the Singapore and Rotterdam ports; (b) that the Company was reducing its prices in competitive markets, which had a significant impact on its profit margins; (c) that the Company's acquisition of Verbeke Bunkering N.V. was not performing according to internal expectations; and (d) that, as a result of the foregoing, defendants lacked a reasonable basis for their positive statements about the Company and its prospects. On August 11, 2010, Aegean Marine announced its financial results for the second quarter of 2010, the period ended June 30, 2010. For the quarter, the Company reported net income of $12.0 million, and total revenues of $1,336.6 million. In reaction to the Company's second quarter financial results, the price of Aegean Marine stock fell $3.40 per share, or 18%, to close at $15.65 per share, on heavy trading volume. On November 10, 2010, Aegean Marine announced its financial results for the third quarter of 2010, the period ended September 30, 2010. For the quarter, the Company reported net income of $4.6 million, and total revenues of $1,340.0 million. In reaction to this announcement, the price of Aegean Marine stock fell $5.68 per share, or 36%, to close at $10.28 per share, on heavy trading volume. Then, on February 3, 2011, the Company announced its preliminary financial results for the fourth quarter of 2010. For the quarter, the Company expected to report a net loss of between $12.0 million and $13.0 million. In reaction to the continuous decrease in demand for the Company's products and services, the price of Aegean Marine stock fell $2.22 per share, or 20%, to close at $8.68 per share, on heavy trading volume. Plaintiff seeks to recover damages on behalf of all purchasers of Aegean Marine common stock during the Class Period. The plaintiff is represented by Robbins Geller, which has expertise in prosecuting investor class actions and extensive experience in actions involving financial fraud. Robbins Geller, a 180-lawyer firm with offices in San Diego, San Francisco, New York, Boca Raton, Washington, D.C., Philadelphia and Atlanta, -- http://www.rgrdlaw.com/-- is active in major litigations pending in federal and state courts throughout the United States and has taken a leading role in many important actions on behalf of defrauded investors, consumers, and companies, as well as victims of human rights violations. Contact: Samuel H. Rudman, Esq. David A. Rosenfeld, Esq. Robbins Geller Rudman & Dowd LLP Telephone: 800-449-4900 E-mail: djr@rgrdlaw.com AMERICAN HONDA: Sued Over Honda Civic Braking System Defect ----------------------------------------------------------- Courthouse News Service reports that a federal class action claims the front brake pads in 2008-2010 Honda Civics wear out prematurely, and that Honda refuses to repair the braking system defect under warranty. A copy of the Complaint in Dunner v. American Honda Motor Co., Inc., Case No. 11-cv-01181 (C.D. Calif.), is available at: http://www.courthousenews.com/2011/02/09/Honda.pdf The Plaintiff is represented by: Robert L. Starr, Esq. THE LAW OFFICE OF ROBERT L. STARR 23277 Ventura Boulevard Woodland Hills, CA 91364-1002 Telephone: (818) 225-9040 E-mail: starresq@hotmail.com - and - Payam Shahian, Esq. STRATEGIC LEGAL PRACTICES, APC 1875 Century Park East, Suite 700 Los Angeles, CA 90067 Telephone: (310) 277-1040 E-mail: pshahian@slpattorney.com - and - Dara Tabesh, ESq. 201 Spear Street, Suite 1100 San Francisco, CA 94105 Telephone: (415) 595-9205 E-mail: dtabesh@hotmail.com AMERICAN TACK: Recalls 261,000 LED Night Lights ----------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with American Tack & Hardware Co. Inc., of Saddle River, N.J., announced a voluntary recall of about 261,000 LED Night Lights. Consumers should stop using recalled products immediately unless otherwise instructed. An electrical short circuit in the night light can cause it to overheat and smolder or melt, which can burn consumers or result in fire. AmerTac has received 18 reports of the night lights smoking, burning, melting and/or charring, including three reports of minor property damage and one of a minor burn injury. Three night light models are being recalled: model numbers 71193, 71194 and 327879. Only those with KML molded on the back are being recalled. All three models have KML, ETL, the AmerTac (TM) logo and the model number molded on the back of the night lights' plastic housing. Model number 71193 is a square shaped, white plastic unit with a flat translucent square window on the front and a button for changing the screen color. Model 71194 and 327879 resemble a computer mouse with white plastic housing and inset translucent windows on the front and sides. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11123.html The recalled products were manufactured in China and sold through hardware stores, lighting showrooms and home centers nationwide from March 2009 through January 2011 for about $7. Consumers should stop using the recalled night lights immediately and unplug them from the wall. Contact the firm for instructions on receiving a full refund. For additional information, contact AmerTac at (800) 420-7511 between 8:00 a.m. and 5:00 p.m., Central Time, Monday through Friday, or visit AmerTac's Web site at http://www.amertac.comor http://www.recall-center.com/ APARTMENTS DOWNTOWN: Class Action to Benefit Students ----------------------------------------------------- The Daily Iowan reports that one of the largest property- management companies in Iowa City is under legal attack. You may know it as Apartments Downtown Iowa City or its separate management office, Apartments Near Campus. In past years it has been Associated University Realty Inc., AUR Downtown Apartments, DTA Iowa City Inc., and, most recently, Apartments Downtown Inc. as of September 2003. Whichever name you prefer, it has produced a lot of angry tenants. One such tenant, Michael Conroy, filed a lawsuit against the company on Dec. 22, 2010. Mr. Conroy claims Apartments Downtown knowingly takes advantages of students who are unaware of their rights and the hidden agreements in their contracts. "Basically, it's a big bully," Mr. Conroy's attorney, Christopher Warnock, told the Editorial Board. It is important for students who feel victimized by the company to follow in Mr. Conroy's footsteps and join the burgeoning class- action lawsuit, regardless of how tough the battle may appear. Students are frequently discouraged from pursuing legal action because of unfamiliarity with the system, but taking disputes to the courts empowers citizens to defend their property and rights. Mr. Warnock and fellow attorney Christine Boyer have been working on Mr. Conroy's case, petitioning to make it a class-action lawsuit, something Mr. Warnock strongly recommends when many people are affected by the same thing. In this case, Apartments Downtown has allegedly violated several sections of the Iowa Code by creating leases that abrogate tenants' rights. The company allegedly withholds tenants' security deposits, holds them responsible for damages regardless of cause, and charges hidden cleaning fees, among other complaints. "People are just getting ripped off blatantly," Mr. Warnock said. "The more we investigate, the worse stuff I find out." Regardless of the veracity of the lawsuit, petitioning for the class-action case gives students a chance to really make a change -- even if, as Mr. Warnock says, class-action lawsuits are uncommon in Johnson County. While it may be an unusual way to go in landlord/tenant situations, housing lawsuits are by no means rare. Greg Bal, the supervising attorney at University of Iowa Student Legal Services, said he has seen 268 students from July through September of this past year. Ninety-two of those cases involved landlord/tenant issues. "This problem has been recognized for a long time," he said. Furthermore, Mr. Bal thinks the class action lawsuit is the right way to go, because he believes it will make it cheaper for the students in the long run. He said that a lot of students think there is nothing they can do in situations such as these and stresses that Student Legal Services is there to assist students in finding their legal sea legs. "We can help them learn about their rights," Mr. Bal told the Editorial Board. Mr. Warnock couldn't agree more. He believes that such lawsuits haven't come about sooner because students believe that there is nothing they can do. "When it comes down to it, they feel like they're alone," Mr. Warnock said. "We don't want to put [landlords] out of business, but we want them to follow the law. That's it." While he is unsure how long this case could take, he believes he has a good case legally. Apartments Downtown has never been challenged on such a broad scale, he said. The plaintiffs' claims have yet to be legally corroborated, and the fate of the case is amorphous, but students who participate in a lawsuit against a perceived abusive entity gain far more than a legitimate channel to air their grievances: They get experience with the legal system, which, like it or not, is how American business is held accountable. This case is a commendable instance of students using legal services to defend themselves against alleged injustice, and it should serve as an inspiration for others struggling with exploitation. ASPEN TECH: Continues to Defend "380544 Canada" Class Action ------------------------------------------------------------ Aspen Technology, Inc., continues to defend itself against a class action lawsuit filed by 380544 Canada, Inc., in New York, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. In March 2006, the Company settled class action litigation, including related derivative claims, arising out of its originally filed consolidated financial statements for fiscal 2000 through 2004, the accounting for which the Company restated in March 2005. Certain members of the class (representing 1,457,969 shares of common stock, or less than 1% of the shares putatively purchased during the class action period) opted out of the settlement and had the right to bring their own state or federal law claims against the Company, referred to as "opt-out" claims. Opt-out claims were filed on behalf of the holders of approximately 1.1 million of such shares. All but one of these actions were settled and/or dismissed. 380544 Canada, Inc., et al. v. Aspen Technology, Inc., was filed on February 15, 2007 in the federal district court for the Southern District of New York and docketed as Civ. A. No. 1:07-cv- 01204-JFK in that court. The claims in this action include claims against the Company and one or more of its former officers alleging securities and common law fraud, breach of contract, deceptive practices and/or rescissory damages liability, based on the restated results of one or more fiscal periods included in its restated consolidated financial statements referenced in the class action. This action was brought by persons who purchased 566,665 shares of the Company's common stock in a private placement. Certain motions to dismiss filed by other defendants were resolved on May 5, 2009. The claims in the 380544 Canada action are for damages totaling at least $4.0 million, not including claims for attorneys' fees. The Company plans to defend the 380544 Canada action vigorously. ATLAS ENERGY: Enters Into MOU to Settle Merger-Related Class Suits ------------------------------------------------------------------ Atlas Energy, Inc., disclosed in a Feb. 7, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission that it has entered into a memorandum of understanding to settle a class action lawsuit, which is challenging its merger agreement with Chevron Corporation, pending in Delaware. On November 9, 2010, Atlas Energy, Inc., and Chevron Corporation announced that they had entered into a definitive merger agreement, whereby Chevron would acquire Atlas in a transaction valued at that time at $4.3 billion, or $43.34 per Atlas share. The $43.34 per share merger price represented a premium of approximately 50% over the closing price of Atlas shares on September 13, 2010 (when Chevron submitted its initial merger proposal to Atlas) and a 37% premium over the closing price of Atlas shares on November 8, 2010 (which is the last trading day before the deal was announced). Between November 15, 2010 and November 19, 2010, two shareholders of Atlas -- Jeanna Weber and Abraham Katsman -- filed verified putative class action complaints in the Court of Chancery of the State of Delaware challenging the Proposed Transaction. Those lawsuits initially were styled Weber v. Atlas Energy Inc., et al. and Katsman v. Atlas Energy Inc., et al. Four other virtually identical lawsuits were filed in the Pennsylvania Court of Common Pleas of Allegheny County and in the United States District Court for the Western District of Pennsylvania. On December 10, 2010, the Pennsylvania State Action was stayed in deference to the Delaware Action. On December 28, 2010, Plaintiffs filed an Amended and Verified Class Action Complaint. The Amended Complaint alleged that the Atlas directors breached their fiduciary duties by allegedly agreeing to an inadequate merger price and conducting an unfair process in connection with the Proposed Transaction. Plaintiffs also alleged that Chevron (and its merger subsidiary) aided and abetted those purported breaches of duty. Additionally, the Amended Complaint alleged numerous disclosure claims with respect to Atlas's preliminary proxy statement. On February 3, 2011, Atlas Energy, Chevron, Merger Sub and the other defendants in the Delaware Action entered into a Memorandum of Understanding with the plaintiffs in the Delaware Action. The Settlement Understanding outlines the terms of the parties' agreement in principle to settle, dismiss and release all claims which were or could have been asserted in the Delaware Action, and is subject to approval by the Court. The Settlement Understanding contemplates, among other things, that Atlas Energy or its successor(s) will: * after the consummation of the Merger and after the order approving the settlement becomes final, pay to each holder of record of issued and outstanding shares of Atlas Energy common stock as of immediately prior to the effective time of the Merger (other than shares owned by Chevron, Merger Sub or any other direct or indirect wholly owned subsidiary of Chevron) a cash payment of $0.10 for each such share, excluding certain stockholders who are directors of Atlas Energy and their immediate family members and affiliates. The Settlement Understanding further provides that the $0.10 payment will not be reduced due to the payment of any fees or expenses to plaintiffs' counsel and that the payment of any such fees and expenses shall be the responsibility of Atlas Energy or its successor(s); * provide prompt notification to counsel for the plaintiffs, subject to the terms of the Stipulation and Order Governing the Production and Exchange of Confidential Information entered in the Delaware Action, of any competing bids to acquire Atlas Energy received from third parties prior to the meeting of Atlas Energy stockholders to consider and vote upon the adoption of the Merger Agreement scheduled for February 16, 2011; and * agree to promptly file, as part of a Current Report on Form 8-K, the Settlement Understanding and the exhibits thereto, including certain paragraphs excerpted from plaintiffs' brief in support of their preliminary injunction motion regarding the supply-side market risk premium and, as derived therefrom, the related weighted average cost of capital, discount rate and fairness range, as set forth by the plaintiffs in their brief. A full-text copy of the Memorandum of Understanding is available for free at: http://is.gd/9gEpSK AVX CORP: Still Defends Environmental Contamination Lawsuit ----------------------------------------------------------- AVX Corporation is still defending itself in a class action lawsuit in South Carolina arising from alleged migration of certain pollutants to areas adjacent to the company's property, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. In September 2007, the company received notice from Horry Land Company, the owner of property adjacent to the company's Myrtle Beach, South Carolina factory, that Horry Land Company's property value had been negatively impacted by alleged migration of certain pollutants from the company's property and demanding $5,400 in compensatory damages, exclusive of costs that have not been determined. The company investigated the allegations and determined that the demanded payment was not justified and that issues of liability, among other issues, exist under environmental laws. As a result, in October 2007, the company filed a declaratory judgment action in United States District Court for the District of South Carolina under the CERCLA and the Federal Declaratory Judgment Act, seeking a declaration that the company is not liable for the property damages claimed by Horry Land Company and for a determination and allocation of past and future environmental response costs. Horry Land Company has asserted its claims in this suit and it is now proceeding. In addition, two other suits have been filed against the company relating to the same contamination. One suit was filed in the South Carolina State Court on November 27, 2007 by certain individuals seeking certification as a class action which has not yet been determined. The other suit is a commercial suit filed on January 16, 2008 in South Carolina State Court by John H. Nance and JDS Development of Myrtle Beach, Inc. Both of these suits are pending in South Carolina state court. AVX has also sought to join the United States Air Force as a potentially responsible party. The company intends to defend vigorously the claims that have been asserted in the three related lawsuits. At this early stage of the litigation, there has not been a determination as to responsible parties or the amount, if any, of damages. With respect to the related environmental assessment, the Company is in the process of a feasibility study to evaluate possible remedies and at this stage have not been able to determine what measures may have to be undertaken or the likely costs of any such measures. Accordingly, the potential impact of either the lawsuits or the remediation on the Company's financial position, results of operations, and cash flows cannot be determined at this time. The Company has reserved approximately $18,645,000 at December 31, 2010, related to environmental matters. BEAZER HOMES: Obtains Final Approval of ERISA Suit Settlement ------------------------------------------------------------- Beazer Homes USA, Inc., was dismissed from a class action lawsuit alleging violations of the Employee Retirement Income Security Act after it obtained final court approval of its settlement, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. On April 30, 2007, a putative class action complaint was filed on behalf of a purported class consisting of present and former participants and beneficiaries of the Beazer Homes USA, Inc. 401(k) Plan against the Company and certain employees and directors of the Company. The complaint alleges breach of fiduciary duties, including those set forth in the Employee Retirement Income Security Act (ERISA), as a result of the investment of retirement monies held by the 401(k) Plan in common stock of Beazer Homes at a time when participants were allegedly not provided timely, accurate and complete information concerning Beazer Homes. Four additional lawsuits were filed subsequently making similar allegations and the court consolidated these five lawsuits. The parties reached a settlement which was largely funded by insurance proceeds. Under the terms of the settlement, the lawsuit was dismissed with prejudice and there was a release of all claims. The court approved the settlement and entered a final order of dismissal on November 15, 2010. BEAZER HOMES: Still Awaits Court Okay of N.C. Suit Settlement ------------------------------------------------------------- Beazer Homes USA, Inc., is still awaiting court approval of a settlement resolving a lawsuit filed by certain residents of North Carolina alleging, among other things, violation of Real Estate Settlement Practices Act, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. A putative class action was filed on April 8, 2008, in the United States District Court for the Middle District of North Carolina, Salisbury Division, against Beazer Homes, U.S.A., Inc., Beazer Homes Corp. and Beazer Mortgage Corporation. The Complaint alleges that Beazer violated the Real Estate Settlement Practices Act (RESPA) and North Carolina Gen. Stat. Section 75-1.1 by (1) improperly requiring homebuyers to use Beazer-owned mortgage and settlement services as part of a down payment assistance program, and (2) illegally increasing the cost of homes and settlement services sold by Beazer Homes Corp. The purported class consists of all residents of North Carolina who purchased a home from Beazer, using mortgage financing provided by and through Beazer that included seller-funded down payment assistance, between January 1, 2000 and October 11, 2007. The parties have reached an agreement to settle the lawsuit, which will be partially funded by insurance proceeds and is subject to court approval. Under the terms of the settlement, the action will be dismissed with prejudice, and the Company and all other defendants will not admit any liability. The Company said it has accrued a liability for such matter which is not material to the Company's financial position or results of operations and is included in the total litigation accrual. BEAZER HOMES: Still Defends "Drywall" Suit in Florida ----------------------------------------------------- Beazer Homes USA, Inc., is still defending itself in lawsuits alleging defective drywall pending in Florida, according to the Company's Feb. 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. On June 3, 2009, a purported class action complaint was filed by the owners of one of the Company's homes in its Magnolia Lakes' community in Ft. Myers, Florida. The complaint names the Company and certain distributors and suppliers of drywall and was filed in the Circuit Court for Lee County, Florida on behalf of the named plaintiffs and other similarly situated owners of homes in Magnolia Lakes or alternatively in the State of Florida. The plaintiffs allege that the Company built their homes with defective drywall, manufactured in China, that contains sulfur compounds that allegedly corrode certain metals and that are allegedly capable of harming the health of individuals. Plaintiffs allege physical and economic damages and seek legal and equitable relief, medical monitoring and attorney's fees. This case has been transferred to the Eastern District of Louisiana pursuant to an order from the United States Judicial Panel on Multidistrict Litigation. In addition, the Company has been named in other complaints filed in the multidistrict litigation and continues to pursue recovery against responsible subcontractors and drywall suppliers. The Company believes that the claims asserted in these actions are governed by its home warranty or are without merit. Accordingly, the Company intends to vigorously defend against this litigation. Furthermore, the Company has offered to repair all Beazer homes affected by defective Chinese drywall pursuant to a repair protocol that has been adopted by the multidistrict litigation court, including those homes involved in litigation. To date, the vast majority of affected Beazer homeowners have accepted the Company's offer to repair. The Company also continues to pursue recovery against responsible subcontractors, drywall suppliers and drywall manufacturers for its repair costs. BEAZER HOMES: Dismissed From "RESPA" Lawsuit in California ---------------------------------------------------------- Beazer Homes USA, Inc., was dismissed from a lawsuit filed by homeowners alleging Real Estate Settlement Practices Act violations, according to the Company's Feb. 8, 2010, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. Beazer Homes and several subsidiaries were named as defendants in a putative class action lawsuit originally filed on March 12, 2008, in the Superior Court of the State of California, County of Placer. The purported class is defined as all persons who purchased a home from the defendants or their affiliates, with the assistance of a federally related mortgage loan, from March 25, 1999, to the present where Security Title Insurance Company received any money as a reinsurer of the transaction. The complaint alleges that the defendants violated RESPA and asserts claims under a number of state statutes alleging that defendants engaged in a uniform and systematic practice of giving and/or accepting fees and kickbacks to affiliated businesses including affiliated and/or recommended title insurance companies. The complaint also alleges a number of common law claims. Plaintiffs seek an unspecified amount of damages under RESPA, unspecified statutory, compensatory and punitive damages and injunctive and declaratory relief, as well as attorneys' fees and costs. Defendants removed the action to federal court and plaintiffs filed a Second Amended Complaint which substituted new named- plaintiffs. The Company filed a motion to dismiss the Second Amended Complaint, which the federal court granted in part. The federal court dismissed the sole federal claim, declined to rule on the state law claims, and remanded the case to the Superior Court of Placer County. The Company filed a supplemental motion to dismiss/demurrer regarding the remaining state law claims in the Second Amended Complaint and the state court sustained defendants' demurrer but granted the plaintiffs leave to amend their claims. Plaintiffs thereafter filed a Third Amended Complaint which defendants removed to federal court based on the presence of a federal question and pursuant to the Class Action Fairness Act and thereafter moved to dismiss. The parties have resolved this litigation. Pursuant to the settlement agreement, plaintiffs dismissed with prejudice all claims of the of the named plaintiffs and each side was responsible for its cost and fees. Except for its own defense costs, the Company made no payment. The case has now been dismissed with prejudice. BECTON DICKINSON: Plea for Appellate Review of Settlement Pending ----------------------------------------------------------------- Becton, Dickinson and Co. continues to defend itself against antitrust class action lawsuits as certain plaintiffs seek appellate review of their settlement, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. The company is named as a defendant in these purported class action suits brought on behalf of direct purchasers of the company's products, such as distributors, alleging that the company violated federal antitrust laws, resulting in the charging of higher prices for the company's products to the plaintiff and other purported class members: (1) Louisiana Wholesale Drug Company, Inc., et al. vs. Becton Dickinson and Company (filed in the U.S. District Court, Newark, New Jersey, on March 25, 2005); (2) SAJ Distributors, Inc. et al. vs. Becton Dickinson & Co. (filed in the U.S. District Court, Eastern District of Pennsylvania on Sept. 6, 2005); (3) Dik Drug Company, et al. vs. Becton, Dickinson and Company (filed in the U.S. District Court, Newark, New Jersey, Sept. 12, 2005); (4) American Sales Company, Inc. et al. vs. Becton, Dickinson & Co. (filed in the U.S. District Court, Eastern District of Pennsylvania on Oct. 3, 2005); and (5) Park Surgical Co. Inc. et al. vs. Becton, Dickinson and Company (filed in the U.S. District Court, Eastern District of Pennsylvania on Oct. 26, 2005). The actions have been consolidated under the caption In re Hypodermic Products Antitrust Litigation. The Company is also named as a defendant in these purported class action suits brought on behalf of purchasers of the Company's products, such as hospitals, alleging that the Company violated federal and state antitrust laws, resulting in the charging of higher prices for the Company's products to the plaintiffs and other purported class members: (1) Jabo's Pharmacy, Inc., et al. vs. Becton Dickinson and Company (filed in the U.S. District Court, Greenville, Tennessee, on June 7, 2005); (2) Drug Mart Tallman, Inc., et al. vs. Becton Dickinson and Company (filed in the U.S. District Court, Newark, New Jersey, on January 17, 2006); (3) Medstar vs. Becton Dickinson (filed in the U.S. District Court, Newark, New Jersey, on May 18, 2006); and (4) The Hebrew Home for the Aged at Riverdale vs. Becton Dickinson and Company (filed in the U.S. District Court, Southern District of New York, on March 28, 2007). The plaintiffs in each of these antitrust class action lawsuits seek monetary damages. All of the antitrust class action lawsuits have been consolidated for pre-trial purposes in a Multi-District Litigation in Federal court in New Jersey. On April 27, 2009, the Company entered into a settlement agreement with the Distributor Plaintiffs in these actions. The settlement agreement provided for, among other things, the payment by the Company of $45 million in exchange for a release by all potential class members of the direct purchaser claims under federal antitrust laws related to the products and acts enumerated in the complaint, and a dismissal of the case with prejudice, insofar as it relates to direct purchaser claims. The release would not cover potential class members that affirmatively opt out of the settlement. On September 30, 2010, the court issued an order denying a motion to approve the settlement agreement, ruling that the Hospital Plaintiffs, and not the Distributor Plaintiffs, are the direct purchasers entitled to pursue damages under the federal antitrust laws for certain sales of BD products. The settlement agreement currently remains in effect, subject to certain termination provisions, and the Distributor Plaintiffs are seeking appellate review of the court's order. BERNARD MADOFF: JPMorgan Wants "Backdoor Class Action" Moved ------------------------------------------------------------ Chad Bray, writing for The Wall Street Journal, reports J.P. Morgan Chase wants a U.S. district court, rather than a bankruptcy judge, to hear a $6.4 billion lawsuit by the trustee seeking to recover assets for victims of Bernard Madoff's fraud. Irving Picard, the Madoff trustee, claims J.P. Morgan ignored or dismissed warning signs about Mr. Madoff, while collecting hundreds of millions of dollars in fees. He's seeking the return of nearly $1 billion in fees and profits, as well as $5.4 billion in damages. In a court filing late on Feb. 8, J.P. Morgan's lawyers said the trustee's lawsuit goes well beyond the normal purview of a bankruptcy court and raises "novel and unsettled" questions of law, including federal securities and banking laws. They called the litigation an "enormous backdoor class action" and said the bank has the right to have the case potentially heard by a jury. "The trustee has proclaimed that he is pursuing non-bankruptcy claims on behalf of thousands of Madoff's customers to recover losses that they suffered as a result of Madoff's scheme," said John F. Savarese, of Wachtell, Lipton, Rosen & Katz, which is representing the bank. "In substance, the trustee is trying to pursue an enormous backdoor class action to recoup damages incurred by individuals and entities other than the firm to which he is the appointed successor." A central theory of the trustee's case is that J.P. Morgan failed to comply with federal banking laws, including the Bank Secrecy Act, the Patriot Act and other related regulations, the bank's lawyers said. Namely, Mr. Picard is alleging the bank failed to comply with requirements that banks "closely observe" their customers' transactions and conduct extensive investigations of customers in order to detect potential money laundering, J.P. Morgan's lawyers said. In his lawsuit, Mr. Picard, of Baker & Hostetler, claims that J.P. Morgan bankers discussed the possibility that Madoff was operating a Ponzi scheme and called his returns "too good to be true." The bank reported its suspicions to U.K. authorities in late October 2008, about two months before the fraud came to light, according to the lawsuit. J.P. Morgan has called the lawsuit "meritless" and said the bank "did not know about or in any way became a party to the fraud orchestrated by Bernard Madoff." BOTTOMLINE TECHNOLOGIES: Awaits Outcome of Settlement Order Appeal ------------------------------------------------------------------ Bottomline Technologies, Inc., is still awaiting a ruling on appeals from an order approving a settlement of a consolidated securities class action against it, according to the Company's Feb. 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. On August 10, 2001, a class action complaint was filed against the Company in the United States District Court for the Southern District of New York: Paul Cyrek v. Bottomline Technologies, Inc.; Daniel M. McGurl; Robert A. Eberle; FleetBoston Robertson Stephens, Inc.; Deutsche Banc Alex Brown Inc.; CIBC World Markets; and J.P. Morgan Chase & Co. A consolidated amended class action complaint, In re Bottomline Technologies Inc. Initial Public Offering Securities Litigation, was filed on April 20, 2002. On November 13, 2001, a class action complaint was filed against Optio in the United States District Court for the Southern District of New York: Kevin Dewey v. Optio Software, Inc.; Merrill Lynch, Pierce, Fenner & Smith, Inc.; Bear, Stearns & Co., Inc.; FleetBoston Robertson Stephens, Inc.; Deutsche Bank Securities, Inc.; Dain Rauscher Inc.; U.S. Bancorp Piper Jaffray, Inc.; C. Wayne Cape; and F. Barron Hughes. A consolidated amended class action complaint, In re Optio Software, Inc. Initial Public Offering Securities Litigation, was filed on April 22, 2002. The amended complaints filed in both the actions against the Company and Optio assert claims under Sections 11, 12(2) and 15 of the Securities Act of 1933, as amended, and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended. The amended complaints assert, among other things, that the descriptions in the Company's and Optio's prospectuses for the Company's initial public offerings were materially false and misleading in describing the compensation to be earned by the underwriters of the offerings, and in not describing certain alleged arrangements among underwriters and initial purchasers of the common stock from the underwriters. The amended complaints seek damages, costs, attorneys' fees, experts' fees and other expenses. In July 2002, the Company and Optio joined in an omnibus motion to dismiss, which challenged the legal sufficiency of plaintiffs' claims. The motion was filed on behalf of hundreds of issuer and individual defendants named in similar lawsuits. On February 19, 2003, the court issued an order denying the motion to dismiss as to Bottomline and denying in part the motion to dismiss as to Optio. In addition, in October 2002, Daniel M. McGurl, Robert A. Eberle, C. Wayne Cape and F. Barron Hughes were dismissed from this case without prejudice. Both Bottomline and Optio authorized the negotiation of a settlement of the pending claims, and the parties negotiated a settlement, which was subject to approval by the court. On August 31, 2005, the court issued an order preliminarily approving the settlement. On December 5, 2006, the United States Court of Appeals for the Second Circuit overturned the District Court's certification of the class of plaintiffs who are pursuing the claims that would be settled in the settlement against the underwriter defendants. Plaintiffs filed a Petition for Rehearing and Rehearing En Banc with the Second Circuit on January 5, 2007 in response to the Second Circuit's decision. On April 6, 2007, plaintiffs' Petition for Rehearing of the Second Circuit's decision was denied. On June 25, 2007, the District Court signed an order terminating the settlement. On September 27, 2007, plaintiffs filed a motion for class certification in certain designated "focus cases" in the District Court. That motion was withdrawn. Neither Bottomline nor Optio's cases are part of the designated focus case group. On November 13, 2007, the issuer defendants in the designated focus cases filed a motion to dismiss the second consolidated amended class action complaints that were filed in those cases. On March 26, 2008, the District Court issued an Opinion and Order denying, in large part, the motions to dismiss the amended complaints in these focus cases. On April 2, 2009, the plaintiffs filed a motion for preliminary approval of a new proposed settlement between plaintiffs, the underwriter defendants, the issuer defendants and the insurers for the issuer defendants. On June 10, 2009, the Court issued an opinion preliminarily approving the proposed settlement, and scheduling a settlement fairness hearing for September 10, 2009. On August 25, 2009, the plaintiffs filed a motion for final approval of the proposed settlement, approval of the plan of distribution of the settlement fund, and certification of the settlement classes. The settlement fairness hearing was held on September 10, 2009. On October 5, 2009, the Court issued an opinion granting plaintiffs' motion for final approval of the settlement, approval of the plan of distribution of the settlement fund, and certification of the settlement classes. An order and final judgment was entered on November 25, 2009. Various notices of appeal of the Court's order have been filed. On October 7, 2010, all but two parties who had filed a notice of appeal filed a stipulation with the court withdrawing their appeals with prejudice, and the two remaining objectors filed briefs in support of their appeals. On December 8, 2010, the plaintiffs moved to dismiss with prejudice the appeal filed by one of the two objectors based on alleged violations of the Second Circuit's rules, including failure to serve, falsifying proofs of service, and failure to include citations to the record. The motion was fully briefed as of December 30, 2010, but the Second Circuit has not yet ruled on the motion. The Company, and its subsidiary Optio, intend to vigorously defend themselves in these actions. The Company does not currently believe that the outcome of these proceedings will have a material adverse impact on its financial condition, results of operations or cash flows. BRINKER INTERNATIONAL: Still Defending California Class Suit ------------------------------------------------------------ Brinker International, Inc., continues to defend itself from a class action lawsuit filed in California, according to the company's February 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 29, 2010. Certain current and former hourly restaurant team members filed a lawsuit against the Company in California Superior Court alleging violations of California labor laws with respect to meal and rest breaks. The lawsuit seeks penalties and attorney's fees and was certified as a class action in July 2006. On July 22, 2008, the California Court of Appeal decertified the class action on all claims with prejudice. On October 22, 2008, the California Supreme Court granted a writ to review the decision of the Court of Appeal. The Company intends to vigorously defend its position. It is not possible at this time to reasonably estimate the possible loss or range of loss, if any. CANADA: May Face Class Action Over Security Perimeter Agreement --------------------------------------------------------------- Paul Gingras, writing for The Canadian, reports that a group of Canadians currently identifying themselves as the "Group of 12" claims that they are contemplating class action litigation against the Security Perimeter Agreement in Quebec Civil Courts. The "Group of 12" is made up of lawyers, intellectuals and self- described activists, and is without a formal leader. Instead this group is operating in what could be described as a cooperative fashion. The grounds for their prospective "class action" legal claim against the Harper government, and what they also describe as their "accomplices" in Parliament, is that the Security Perimeter (i) violates the Constitution Act, 1867; (ii) the Canadian Charter of Rights and Freedoms (iii) constitutes treason, and a breach of the fiduciary obligation of the Harper government to defend the best interests of Canadians, (iv) and parliamentary law that is also related to Canadian constitutional customs and conventions. The Constitution Act, 1867 established the Confederation of Canada, and de facto, Canada's sovereignty from the United States, which was disregarded by Harper's treaty with Obama that will result in no effective border between Canada and the United States. Along with 'no border', the Agreement effectively cancels out 'parliamentary supremacy' with a return to colonial status for Canada under U.S. laws and security arrangements. According to the "Group of 12", the Agreement also constitutes a breach of 'freedom of conscience' and legal rights of Canadians guaranteed by the Charter to the extent to which the Agreement will now require Canadians to be subjected to the "Big Brother" jurisdiction of the U.S. Department of Homeland Security. The "Group of 12" also argues that the Harper government also had a legal obligation for to subject the full wording of the Agreement to parliamentary hearings and full public scrutiny under Canada's customs and conventions; and that the Harper government is also in breach of his Oath to Her Majesty the Queen of Canada to defend the sovereignty of Canada, and inherent constitutional obligations. The "Group of 12" says that Canadians should by no means rely on them as "their savior" -- "all Canadians must participate in the saving of our country." The "Group of 12" encourages other Canadians to contemplate their own legal rights and access to courts and says that a nation is only as strong as the willingness to the people themselves to defend their own community from alien control or foreign conquest. CAPSTONE TURBINE: Appeals Still Pending in IPO Suit Settlement -------------------------------------------------------------- Capstone Turbine Corporation continues to defend itself against appeals from an opinion granting final approval of a settlement of a purported stockholder class action lawsuit in New York, according to the Company's February 7, 2011 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. In December 2001, a purported stockholder class action lawsuit was filed in the United States District Court for the Southern District of New York against the Company, two of its then officers, and the underwriters of the Company's initial public offering. The suit purports to be a class action filed on behalf of purchasers of the Company's common stock during the period from June 28, 2000 to December 6, 2000. An amended complaint was filed on April 19, 2002. The plaintiffs allege that the prospectuses for the Company's June 28, 2000 initial public offering and November 16, 2000, secondary offering were false and misleading in violation of the applicable securities laws because the prospectuses failed to disclose the underwriter defendants' alleged agreement to allocate stock in these offerings to certain investors in exchange for excessive and undisclosed commissions and agreements to make additional purchases of stock in the aftermarket at pre-determined prices. Similar complaints have been filed against hundreds of other issuers that have had initial public offerings since 1998; the complaints have been consolidated into an action captioned In re Initial Public Offering Securities Litigation, No. 21 MC 92. On October 9, 2002, the plaintiffs dismissed, without prejudice, the claims against the named officers and directors in the action against the Company, pursuant to the terms of Reservation of Rights and Tolling Agreements entered into with the plaintiffs. Subsequent addenda to the Tolling Agreements extended the tolling period through August 27, 2010. The District Court directed that the litigation proceed within a number of "focus cases" and on October 13, 2004, the District Court certified the focus cases as class actions. The Company's case is not one of these focus cases. The underwriter defendants appealed that ruling, and on December 5, 2006, the Court of Appeals for the Second Circuit reversed the District Court's class certification decision. On August 14, 2007, the plaintiffs filed their second consolidated amended complaints against the six focus cases and on September 27, 2007, again moved for class certification. On November 12, 2007, certain of the defendants in the focus cases moved to dismiss the second consolidated amended class action complaints. On March 26, 2008, the District Court denied the motions to dismiss except as to Section 11 claims raised by those plaintiffs who sold their securities for a price in excess of the initial offering price and those who purchased outside the previously certified class period. The motion for class certification was withdrawn without prejudice on October 10, 2008. On April 2, 2009, a stipulation and agreement of settlement between the plaintiffs, issuer defendants and underwriter defendants was submitted to the District Court for preliminary approval. The District Court granted the plaintiffs' motion for preliminary approval and preliminarily certified the settlement classes on June 10, 2009. The settlement "fairness" hearing was held on September 10, 2009. On October 6, 2009, the District Court entered an opinion granting final approval to the settlement and directing that the Clerk of the District Court close these actions. On August 26, 2010, based on the expiration of the tolling period stated in the Tolling Agreements, the plaintiffs filed a Notice of Termination of Tolling Agreement and Recommencement of Litigation against the named officers and directors. The plaintiffs stated to the Court that they do not intend to take any further action against the named officers and directors at this time. Appeals of the opinion granting final approval have been filed. Because of the inherent uncertainties of litigation and because the settlement remains subject to appeal, the ultimate outcome of the matter is uncertain. Management believes that the outcome of this litigation will not have a material adverse impact on its consolidated financial position and results of operations. CAVALRY PORTFOLIO: Sued for Violation of ICAA Section 8b -------------------------------------------------------- Carole Grant-Hall and Paul J. Asiama, on behalf of themselves and others similarly situated v. Cavalry Portfolio Services, LLC, and Kevin M. Kelly, P.C., Case No. 2011-CH-04594 (Ill. Cir. Ct., Cook Cty. February 7, 2011), allege violations of the Illinois Collection Agency Act and the Illinois Consumer Fraud Act by Cavalry, and the Fair Debt Collection Practices Act by both defendants. Defendant Cavalry Portfolio Services, LLC, is engaged in the business of a collection agency. It is a licensee under the Illinois Collection Agency Act, 225 ILCS 425/1 et seq. Defendant Kevin M. Kelly, P.C.'s practice consists of the collection of alleged consumer debts. The plaintiffs believes that the law firm represents Cavalry Portfolio Services, LLC, in about half the lawsuits Cavalry files in Illinois. The plaintiffs say that the exclusive means whereby a collection agency can file a lawsuit in Illinois in its own name on a debt that it does not beneficially own is pursuant to Section 8b of the Collection Agency Act, 225 ILCS 425/8b, which provides that an assignment to a collection agency for collection "with title passing to the collection agency to enable collection of the account in the agency's name as assignee for the creditor" must, among other things, be "manifested by a written agreement, separate from and in addition to any document intended for the purpose of listing a debt with a collection agency." The plaintiffs aver that none of the lawsuits filed by defendants was based on an assignment in the form specified in ICAA Section 8b, and therefore the filing thereof constitutes an illegal practice of law. The Plaintiffs are represented by: Daniel A. Edelman, Esq. Cathleen M. Combs, Esq. James O. Latturner, Esq. EDELMAN, COMBS, LATTURNER & GOODWIN, LLC 120 S. LaSalle Street, 18th Floor Chicago, IL 60603 Telephone: (312) 739-4200 CITIGROUP INC: Kentucky Homeowners Drop Foreclosure Class Action ---------------------------------------------------------------- Elizabeth Amon, writing for Bloomberg News, reports that Kentucky homeowners dropped a possible class-action suit in which Citigroup Inc. and Ally Financial Inc. units were accused of conspiring with Mortgage Electronic Registration Systems Inc. to falsely foreclose on loans. Heather Boone McKeever, the Lexington, Kentucky, lawyer who sued on behalf of the homeowners, said yesterday by e-mail that she dropped the case Feb. 3 because as a solo practitioner she wouldn't be able to clear the "necessary hurdles" for maintaining a federal class action and she couldn't interest a larger law firm. She said she continues to advise the plaintiffs in their individual state-court cases. "My plan is to try to keep the cases in state court by filing class-action counterclaims against the individual creditors and MERS in each family's action," she said. The lawsuit, filed as a civil-racketeering case on behalf of all Kentucky homeowners facing foreclosure, also named as a defendant Reston, Virginia-based MERS, the company that handles mortgage transfers among member banks. MERS and banks have been accused in at least two other federal suits of violating the Racketeer Influenced and Corrupt Organizations Act, a law originally passed to pursue organized crime. A Florida case was thrown out Jan. 31 by a judge in Miami. Another is in Brooklyn, New York. The Kentucky homeowners filed their complaint Sept. 28 in Louisville. They claimed that through MERS the banks are foreclosing on homes even when they don't hold titles to the properties. The suit was dismissed without prejudice, meaning that the homeowners can refile it. The case is Foster v. Mortgage Electronic Registration Systems Inc., 10-cv-611, U.S. District Court, Western District of Kentucky (Louisville). COMMONWEALTH FINANCIAL: Maurice Blackburn Files Class Action ------------------------------------------------------------ Darin Tyson-Chan, writing for InvestorDaily, reports that a class action has been taken out against Commonwealth Financial Planning. Maurice Blackburn Lawyers has initiated a class action against Commonwealth Financial Planning Limited, the wholly owned advisory arm of Commonwealth Bank of Australia. The action has been filed on behalf of individuals who received inappropriate investment advice from Don Nguyen, a former authorized representative of CFPL. Maurice Blackburn alleged CFPL engaged in misleading or deceptive conduct in relation to these clients and Mr. Nguyen breached various provisions of the Corporations Act. Elizabeth Saunders, who was a former client of Mr. Nguyen's and sought retirement advice from him in 2007, is the lead applicant in the case. "Commonwealth Financial Planning Limited has not denied that Don Nguyen had failed his clients. They have accepted that he did cause losses," Maurice Blackburn managing principal Ben Slade said. "The gripe we have is twofold. One is their resolution process is conducted completely by them and there is no independent assistance for the victims of that conduct. And secondly there is this body out there contacting people who we call a claims farmer, and we are concerned that without court supervision for this resolution people will be in severe difficulty and [may] find themselves worse off than before they met Mr. Nguyen." Separately, The Investor Daily's Mr. Tyson-Chan reports that the class action against CFPL has been driven by two main factors. Flaws in the compensation process for victims of poor investment advice received from Mr. Nguyen coupled with an unsolicited offer of assistance in the matter from a separate party were the motivating factors behind the class action Maurice Blackburn has brought against the Commonwealth Bank-owned dealer group. "We are concerned that the compensation regime set up by Commonwealth Financial Planning Limited and supervised by ASIC is not working and it's not to the extent it should and that those people who have suffered loss at the hands of Commonwealth Financial Planning should be compensated and should be compensated sensibly and we're afraid that's not happening," Mr. Slade said. "We're also very concerned there's an organization who is preying on the victims of this wrongful conduct by directly contacting them and offering to help them have their issue resolved and we think it's important to move quickly to ensure that the Federal Court has supervision of the resolution of these claims." The third party in question, Financial Resolutions Australia, has been sending out unsolicited letters to individuals who it says "fit a profile of persons that have used a financial planner and has suffered a financial loss as a result of their financial advice" in the correspondence. In regard to the compensation process CFPL is working through with ASIC, Slade said there was not enough objectivity and understanding of the financial planning process involved. "It's not good enough for Commonwealth Financial Planning Limited to make their own assessment of what the position of the people should have been, to make their own assessment of what their losses are, and to claim they're getting some level of independent supervision through an accounting firm which only checks numbers," he said. Retired public servant and former Mr. Nguyen client Elizabeth Saunders is the lead applicant in the class action. Maurice Blackburn to date remains unsure of how many parties will be included in the group members of the action. In time these people will be notified of the proceedings by CFPL under order of the court and given the choice to join the action or opt out of it. COVENTRY HEALTH: Signs Definitive Settlement Doc on Louisiana Suit ------------------------------------------------------------------ In a Feb. 8, 2011, Form 8-K with the U.S. Securities and Exchange Commission, Coventry Health Care, Inc., disclosed that it has executed a definitive settlement agreement with plaintiffs of a class action lawsuit pending in Louisiana. On July 2, 2010, the Company announced that it would incur a non- recurring pre-tax charge to earnings in the second quarter of 2010 in the amount of $278 million, or $1.18 EPS, related to a class action lawsuit filed by providers in Louisiana. The Company believes that disclosing adjusted earnings, which exclude the impact of this litigation, provides a more meaningful measure of its operating results for comparison to future periods and previously announced guidance. As previously reported on December 6, 2010, the Company entered into a Memorandum of Understanding with plaintiffs counsel and the provider class setting forth the settlement terms to reduce the amount payable to $150.5 million. On February 2, 2011, the parties executed a definitive settlement agreement, acceptable to the Company, which incorporated the terms and conditions set forth in the Memorandum of Understanding. Given various contingencies such as court approvals and class acceptance of settlement provisions which must be satisfied before the settlement becomes final, no reduction has been made to the previously recorded amount. The Class Action Reporter previously reported that on December 6, 2010, First Health Group Corp., a subsidiary of the Company, entered into a Memorandum of Understanding with attorneys representing the plaintiffs and the class setting forth the settlement terms of the class action lawsuit filed in Louisiana state court against FHGC and certain payors. The Memorandum of Understanding provides that subject to the execution of a settlement agreement acceptable to FHGC and final non-appealable approval of such settlement by the Louisiana state court, FHGC will pay $150.5 million to resolve claims for which Coventry in July 2010 announced a pre-tax charge of $278 million. In addition, Coventry will assign to the class certain rights it has to the proceeds of FHGC's insurance policies relating to the claims asserted by the class. Pursuant to the Memorandum of Understanding, the parties have also agreed to request that the appropriate courts stay all related proceedings and consideration of any pending appellate writ applications and to stay the effect of any outstanding judgments until the settlement agreement is prepared, executed and receives final court approval. The lawsuit alleged that FHGC violated Louisiana's Any Willing Provider Act, which requires a payor accessing a preferred provider network contract to give a one-time notice 30 days before that payor uses the discount rate in the preferred provider network contract to pay the provider for services rendered to a member insured under that payor's health benefit plan. After the Louisiana state court class action had been filed, FHGC and certain payors who access FHGC's provider contracts, filed suit in federal district court against the same four provider plaintiffs who filed the state court class action, seeking a declaratory judgment that FHGC's contracts are valid and enforceable; that its contracts are not subject to the Act because the Act does not apply to medical services rendered to injured workers; and that FHGC is exempt from the notice requirements of the Act. The federal district court granted judgment in favor of FHGC. Despite the federal court's judgment and subsequent order enjoining them from pursuing any claim under the Act against FHGC, the plaintiffs continued to pursue their state court class action against FHGC and filed a motion for partial summary judgment seeking damages of $2,000 for each provider visit where the provider was not given a benefit identification card at the time the service was performed. The state trial court granted the plaintiffs' motion and entered judgment against FHGC for $262 million. FHGC's appeal of the partial summary judgment order to the state's intermediate appellate court was denied. FHGC has filed an application for a writ of appeal with the Louisiana Supreme Court with respect to the partial summary judgment order. The decision to grant or deny the application for a writ of appeal is at the discretion of the Louisiana Supreme Court. The application is still pending before the Louisiana Supreme Court. As a result of the Louisiana appellate court's decision on July 1, 2010 to affirm the state trial court's summary judgment order, Coventry recorded a $278 million pre-tax charge to earnings during the second quarter of 2010. This amount represents the $262 million judgment amount plus post judgment interest. Coventry has accrued for legal fees expected to be incurred related to this case as well as post judgment interest subsequent to the second quarter charge and will continue to accrue post judgment interest until a final non- appealable court approval of the settlement has been obtained. In exchange for the settlement payment by FHGC, class members will release FHGC and all of its affiliates and clients for any claims relating in any way to re-pricing, payment for, or reimbursement of a workers' compensation bill, including but not limited to claims under the Act. Plaintiffs have also agreed to a notice procedure that FHGC may follow in the future to comply with the Act. As noted, the Memorandum of Understanding is contingent upon the execution of a definitive settlement agreement acceptable to FHGC. Under Louisiana law, once the parties have executed such a settlement agreement, they must apply to the court for approval of the settlement following a court-supervised process of notice to the class and an opportunity for the class to be heard about the fairness of the settlement or exclude themselves from the settlement. DIONEX CORP: Defends Class Suit Related to Thermo Fisher Merger --------------------------------------------------------------- Dionex Corporation is defending itself from a class action lawsuit filed by parties against the Company's acquisition by another company, according to the Company's Feb. 8, 2011 Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal year ended December 31, 2010. On December 12, 2010, Dionex, Thermo Fisher Scientific, Inc., and Weston D Merger Co., a wholly owned subsidiary of Thermo Fisher, entered into an Agreement and Plan of Merger, pursuant to which Merger Sub will, subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, merge with and into Dionex and Dionex will survive the merger and continue as a wholly owned subsidiary of Thermo Fisher. Pursuant to the terms of the Merger Agreement and subject to the conditions thereof, at the effective time of the Merger, each share of common stock of Dionex issued and outstanding immediately prior to the Effective Time will be converted into the right to receive $118.50 in cash, without interest. On December 14, 2010, Dr. Alan Weisberg filed a putative class action lawsuit in the Superior Court of the State of California, County of Santa Clara, purportedly on behalf of the stockholders of Dionex, against Dionex, its directors and Thermo Fisher, alleging, among other things, that Dionex's directors, aided and abetted by Dionex and Thermo Fisher, breached their fiduciary duties owed to Dionex stockholders in connection with the proposed acquisition of Dionex by Thermo Fisher and Purchaser. The complaint seeks, among other things, to enjoin the defendants from completing the acquisition as currently contemplated. Dionex intends to take all appropriate actions to defend the lawsuit. DOWNER EDI: Faces Class Action Over Waratah Train Project --------------------------------------------------------- Adele Fergusson, writing for BusinessDay, reports embattled engineering and contracting group Downer EDI has been whacked with a proposed shareholder class action over allegations it misled the market over its controversial Waratah train project. Litigation funder IMF will bankroll the class action, speculated to be as much as $100 million, alleging the company failed to keep the market fully informed between February 2010 and June 1, when it made a shock $190 million writedown related to its Waratah rail project in NSW, forcing it to miss its profit targets. BusinessDay revealed in August that IMF was considering bringing a class action against Downer over lack of transparency in the months leading up to the June 1 write-downs. The news may become the latest setback for the company's shares ahead of an expected rights issue. In early trading, the stock was down as much as 5 cents, or 1.3%, to $3.96. A year ago, the shares were as high as $8.62. IMF alleges that during the period the company engaged in misleading and deceptive conduct, and allegedly breached its continuous disclosure obligations, which saw the share price fall more than 27% in one day, wiping out $1.1 billion in market value. IMF said in a note to the ASX that shareholders who purchased shares in Downer during the period between February 25 and May 31, 2010 may be eligible to participate in the claim, which IMF will fund subject to specific factors set out in the funding document, including a level of participation acceptable by IMF. In a note, CBA Institutional Equities analyst Ben Brownette wrote: "This is clearly a blow to the company and as we understand has the potential to be widened in relation to the second provision, which appears to be similar circumstances." In May 2007 IMF bankrolled legal action against Downer alleging the group's profit forecast for 2006 was misleading. "We understand this (action) was a $100 million claim -- but are unsure of what Downer paid as a settlement (IMF announced at the time it received $6.8 million. Given IMF's commission normally range between 20 per cent and 45 per cent, the settlement was probably only in the order of $15-35 million)," Mr. Brownette said. Rights issue The news of a class action comes ahead of the release of Downer's half-early results, scheduled for February 28, which is expected to include a renounceable rights issue -- inviting all investors to participate -- which analysts estimate will exceed $200 million. It follows a shock announcement two weeks ago of a $250 million provision against the Waratah project, bringing the total loss on the project to $440 million. Downer won the $3.6 billion contract in November 2006 as part of a so-called Reliance Rail consortium, of which Downer is the major equity holder with a 49% stake, and for almost four years told the market through various presentations that all targets relating to the Waratah project were being met. At its interim profit result last February Downer re-stated that there was no material change to full year earnings guidance and stated: "The core rail business continues to perform well" and "the front end manufacturing phase of the NSW Waratah Project increases funds employed". The shares traded at the time at $7.90. Then on May 25, 2010, it put out a statement in response to market speculation that Reliance Rail -- the consortium responsible for the Waratah project -- had funding arrangements that were on a non-recourse basis to Downer and the other Reliance Rail shareholders (AMP, ABN Amro and Babcock and Brown). The shares were trading then at $6.45. They closed yesterday at $4.01. A week later Downer announced that following an assessment of the Waratah train project and review of asset carrying values, it has raised a $190 provision on the $1.9 billion Waratah rolling stock manufacture project and a $70 million pre-tax asset impairment charge. Profit downgrades, delays, credibility issues and a revolving door for chief executives, directors and senior executives, have been a recurring theme of the group, leaving shareholders out of pocket and seeking compensation. E.I. DUPONT: Defends 4 More Drinking Water Suits in 3 States ------------------------------------------------------------ E.I. DuPont de Nemours and Company is defending itself from four more water contamination lawsuits in three states, according to its Feb. 8, 2011, Form 10-K filing with the Securities and Exchange Commission for the fiscal year ended Dec. 31, 2010. At December 31, 2010, there were four additional actions pending brought by or on behalf of water district customers in New Jersey, Ohio and West Virginia. The cases generally claim PFOA contamination of drinking water and seek a variety of relief including compensatory and punitive damages, testing, treatment, remediation and monitoring. In addition, the two New Jersey class actions and the Ohio action, brought by the Little Hocking Water Association, claim "imminent and substantial endangerment to health and or the environment" under the Resource Conservation and Recovery Act. In December 2010, the company reached an agreement in principle to settle the two New Jersey class actions subject to court approval. Approval was denied and the parties are considering revised settlement terms for potential resubmission to the court. If a revised settlement is not reached and approved, litigation will resume. Discovery has just begun in the Ohio class action. In the West Virginia class action, the court entered judgment for DuPont in the first quarter 2010. Plaintiffs' appeal of the matter was heard by the Fourth Circuit Court of Appeals in late January 2011. DuPont denies the claims alleged in these civil drinking water actions and is defending itself vigorously. E.I. DUPONT: Continues to Defend PI Claims in West Virginia Suit ---------------------------------------------------------------- E.I. DuPont de Nemours and Company continues to defend itself from personal injury claims remaining in a class action lawsuit in West Virginia, according to its Feb. 8, 2011, Form 10-K filing with the Securities and Exchange Commission for the fiscal year ended Dec. 31, 2010. DuPont uses PFOA (collectively, perfluorooctanoic acids and its salts, including the ammonium salt), as a processing aid to manufacture fluoropolymer resins and dispersions at various sites around the world including its Washington Works plant in West Virginia. In August 2001, a class action, captioned Leach v DuPont, was filed in West Virginia state court against DuPont and the Lubeck Public Service District. The complaint alleged that residents living near the Washington Works facility had suffered, or may suffer, deleterious health effects from exposure to PFOA in drinking water. The relief sought included damages for medical monitoring, diminution of property values and punitive damages plus injunctive relief to stop releases of PFOA. DuPont and attorneys for the class reached a settlement agreement in 2004 and as a result, the company established accruals of $108 million in 2004. The settlement binds a class of approximately 80,000 residents. As defined by the court, the class includes those individuals who have consumed, for at least one year, water containing 0.05 parts per billion (ppb) or greater of PFOA from any of six designated public water sources or from sole source private wells. In July 2005, the company paid the plaintiffs' attorneys' fees and expenses of $23 million and made a payment of $70 million, which class counsel has designated to fund a community health project. The company is also funding a series of health studies by an independent science panel of experts in the communities exposed to PFOA to evaluate available scientific evidence on whether any probable link exists between exposure to PFOA and human disease. The company expects the independent science panel to complete these health studies between 2009 and year-end 2011 at a total estimated cost of $32 million. In addition, the company is providing state-of-the art water treatment systems designed to reduce the level of PFOA in water to six area water districts, including the Little Hocking Water Association (LHWA), until the science panel determines that PFOA does not cause disease or until applicable water standards can be met without such treatment. All of the water treatment systems are operating. The settlement resulted in the dismissal of all claims asserted in the lawsuit except for personal injury claims. If the independent science panel concludes that no probable link exists between exposure to PFOA and any diseases, then the settlement would also resolve personal injury claims. If it concludes that a probable link does exist between exposure to PFOA and any diseases, then DuPont would also fund up to $235 million for a medical monitoring program to pay for such medical testing. In this event, plaintiffs would retain their right to pursue personal injury claims. All other claims in the lawsuit would remain dismissed by the settlement. DuPont believes that it is remote that the panel will find a probable link. Therefore, at December 31, 2010, the company has not established any accruals related to medical monitoring or personal injury claims. However, there can be no assurance as to what the independent science panel will conclude. EMCORE CORP: Still Awaits Ruling on IBEW's Motion for Lead Counsel ------------------------------------------------------------------ EMCORE Corp. is still awaiting a ruling on a renewed motion filed by the lead plaintiff of a consolidated class action against the Company, for approval of its selection of counsel, according to the Company's Feb. 7, 2011, Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. On December 23, 2008, Plaintiffs Maurice Prissert and Claude Prissert filed a purported stockholder class action pursuant to Federal Rule of Civil Procedure 23 allegedly on behalf of a class of Company shareholders against the Company and certain of its present and former directors and officers in the United States District Court for the District of New Mexico captioned, Maurice Prissert and Claude Prissert v. EMCORE Corporation, Adam Gushard, Hong Q. Hou, Reuben F. Richards, Jr., David Danzilio and Thomas Werthan, Case No. 1:08cv1190 (D.N.M.). The Complaint alleges that the Company and the Individual Defendants violated certain provisions of the federal securities laws, including Section 10(b) of the Securities Exchange Act of 1934, arising out of the Company's disclosure regarding its customer Green and Gold Energy and the associated backlog of GGE orders with the Company's Photovoltaics business segment. The Complaint in the Prissert Class Action seeks, among other things, an unspecified amount of compensatory damages and other costs and expenses associated with the maintenance of the action. On or about February 12, 2009, a second purported stockholder class action (Mueller v. EMCORE Corporation et al., Case No. 1:09cv 133 (D.N.M.) was filed in the United States District Court for the District of New Mexico against the same defendants named in the Prissert Class Action, based on substantially the same facts and circumstances, containing substantially the same allegations and seeking substantially the same relief. Plaintiffs in both class actions have moved to consolidate the matters into a single action. On September 25, 2009, the court issued an order consolidating both the Prissert and Mueller actions into one consolidated proceeding, but denied plaintiffs motions for appointment of a lead plaintiff or lead plaintiff's counsel. On July 15, 2010, the court appointed IBEW Local Union No. 58 Annuity Fund to serve as lead plaintiff, but denied, without prejudice, IBEW's motion to appoint lead counsel. On August 24, 2010, IBEW filed a renewed motion for appointment as lead plaintiff and for approval of its selection of counsel. That motion remains pending. FRANKLIN RESOURCES: Continues to Defend Consolidated Suit in Md. ---------------------------------------------------------------- Franklin Resources, Inc., continues to defend a consolidated class action lawsuit in Maryland. Between 2003 and 2006, following industry-wide market timing and late trading investigations by U.S. and Canadian regulators, and U.S. state government offices, Franklin and certain related parties were named in civil lawsuits in the U.S. and one of Franklin's adviser subsidiaries was named in civil lawsuits in Canada. In the U.S., the lawsuits were filed against Franklin and certain of its adviser and distributor affiliates, individual Franklin officers and directors, a former Franklin employee, and trustees of certain Franklin Templeton Investments mutual funds. In 2004, the lawsuits were consolidated for coordinated proceedings with similar lawsuits against numerous other mutual fund complexes in a multi-district litigation titled "In re Mutual Funds Investment Litigation," pending in the U.S. District Court for the District of Maryland, Case No. 04-md-15862. Plaintiffs filed consolidated amended complaints in the MDL on September 29, 2004. The three consolidated lawsuits involving the Company include a class action (Sharkey IRO/IRA v. Franklin Resources, Inc., et al., Case No. 04-cv-01310), a derivative action on behalf of the Funds (McAlvey v. Franklin Resources, Inc., et al., Case No. 04-cv-01274), and a derivative action on behalf of Franklin (Hertz v. Burns, et al., Case No. 04-cv-01624) and seek, among other forms of relief, one or more of the following: unspecified monetary damages; punitive damages; removal of Fund trustees, directors, advisers, administrators, and distributors; rescission of management contracts and distribution plans under Rule 12b-1 promulgated under the Investment Company Act of 1940; and attorneys' fees and costs. On February 25, 2005, the Company-related defendants filed motions to dismiss the consolidated amended class action and Fund derivative action complaints. On June 26, 2008, the court issued its order granting in part and denying in part the Company's motion to dismiss the consolidated amended class action complaint. In its order, the court dismissed certain claims, while allowing others under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 and under Sections 36(b) and 48(a) of the Investment Company Act of 1940 to remain, and dismissed all class action claims against the named Funds. Pursuant to stipulation, the court also dismissed all claims against certain individual defendants, including the independent trustees to the named Funds, and a former Franklin executive. On September 4, 2009, the court entered as its order the parties' stipulation to dismiss without prejudice the remaining Fund trustee defendants named in the consolidated amended class action complaint. On January 12, 2010, lead plaintiff in the consolidated class action filed a second consolidated amended class action complaint. The Company-related defendants filed a motion for partial summary judgment in the consolidated class action on March 24, 2010, and lead plaintiff filed its opposition and cross-motion for partial summary judgment on June 4, 2010. All briefing on the motions was completed in late August 2010. The Company-related defendants' motion to dismiss the consolidated fund derivative action remains under submission with the court, and, pursuant to stipulation, that action is stayed pending resolution of the cross-motions for partial summary judgment in the consolidated class action. In addition, pursuant to stipulation, the derivative action brought on behalf of Franklin has been stayed since 2004. Management strongly believes that the claims made in each of the unresolved lawsuits are without merit and the Company intends to defend against them vigorously. The Company cannot predict with certainty, however, the eventual outcome of those lawsuits, nor whether they will have a material negative impact on the Company. No updates were reported in the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. FRANKLIN RESOURCES: Finally Settles "Huneault" and "Fischer" Suits ------------------------------------------------------------------ Franklin Resources, Inc., has obtained court approval of its settlement of two class action lawsuits pending in Canada, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. Between 2003 and 2006, following industry-wide market timing and late trading investigations by U.S. and Canadian regulators, and U.S. state government offices, Franklin and certain related parties were named in civil lawsuits in the U.S. and one of Franklin's adviser subsidiaries was named in civil lawsuits in Canada. In Canada, Franklin Templeton Investments Corp., a Franklin subsidiary and the manager of Franklin Templeton Investments' Canadian mutual funds, is named (along with several other non- Franklin affiliated manager defendants) in two market timing lawsuits that are styled as class actions (Huneault v. AGF Funds, Inc., et al., Case No. 500-06-000256-046, filed in the Superior Court for the Province of Quebec, District of Montreal on October 25, 2004, and Fischer v. IG Investment Management Ltd., et al., Case No. 06-CV-307599CP, filed in the Ontario Superior Court of Justice on March 9, 2006). The lawsuits seek, among other forms of relief, one or more of the following: unspecified monetary damages, punitive damages, an order barring any increase in management fees for a period of two years following judgment, and attorneys' fees and costs. Oral argument on petitioners' motion for authorization to institute a class action in the Huneault lawsuit concluded on May 5, 2009, and the court then took the matter under submission. Separately, on January 12, 2010, the court in the Fischer lawsuit denied plaintiffs' motion for class certification, and plaintiffs filed a notice of appeal of that ruling on February 22, 2010. On July 20, 2010, Franklin Templeton Investments Corp. and the plaintiffs reached an agreement-in- principle to resolve both the Huneault and Fischer actions for a total proposed payment of approximately $5.0 million, subject to certain conditions including certification of a class in each lawsuit on consent for settlement purposes and court approval of the settlement. Both courts certified the respective classes in September 2010 and approved the settlements on December 17, 2010. HARBOR CAPITAL: Faces Class Action Over Unsolicited Fax Ads ----------------------------------------------------------- Elizabeth Dinan, writing for SeacoastOnline.com, reports that a Newington company broke federal law by faxing more than 10,000 unsolicited advertisements to thousands of Americans and should pay the reluctant recipients a combined $5 million, according to a civil suit filed in the U.S. District Court of New Hampshire. Filed by Concord attorney Michael Sheehan on behalf of thousands of possible plaintiffs, the class action suit alleges Harbor Capital Corp. of 121 Shattuck Way broke the federal Telephone Consumer Protection Act by faxing ads promoting its commercial financial services. The Act was passed by Congress in 1991 with an underlying belief that unsolicited and faxed advertisements shifted advertising costs to recipients while tying up their fax machines. "Supersize your next purchase" reads one of HCC's advertisements allegedly faxed to Menachem Raitport of Brooklyn, New York, against his wishes and at his expense. That fax is included with the lawsuit alleging Raitport and other recipients of HCC's faxed ads were harmed by HCC which either misunderstood the law or relied on representation from others about the law. In violation of federal law, the unsolicited faxes did not include an opt-out notice on the first pages and a phone number for opting out, according to the suit. The faxes were reportedly sent over a four year period, were unsolicited by the recipients and did not include the required notice, Mr. Shaheen alleges. The suit claims the ads were faxed to "at a minimum, thousands" of people who can be identified through HCC's fax and marketing records. According to court records, Sheehan estimates the value of the lawsuit to be in excess of $5 million, exclusive of interest and costs. HCC is being represented by attorney Bill Christie from the Concord law firm of Shaheen and Gordon. He could not immediately be reached for comment Wednesday. Mr. Christie is also representing HCC in Rockingham County Superior Court where he's filed a separate but related suit against HCC's insurance provider for allegedly refusing to cover any damages that may arise from the federal class action suit. The Superior Court suit was filed Feb. 4 and claims HCC's insurer, NGM Insurance of Jacksonville, Florida, is required to pay any "advertising injuries" incurred by HCC if a judge rules against the Newington company. The case is scheduled for a two-week trial beginning April 17, 2012, in front of Chief Justice Steven McAuliffe. HEFFLER RADETICH: Sued for Paying Bogus Settlement Fund Claims -------------------------------------------------------------- Joe Harris at Courthouse News Service reports that a federal class action claims that an accounting firm hired as claims administrator for a $490 million class action over the merger of Bank of America and NationsBank paid an employee millions of dollars in false claims. Lead plaintiff David Oetting, a representative of the NationsBank class in the original lawsuit, sued Heffler, Radetich & Saitta LLP. Mr. Oetting says the settlement from the original class action netted $490 million and that Heffler, a certified public accounting firm, was hired as claims administrator. From the $490 million settlement fund, the NationsBank class was awarded $332.2 million and the NationsBank class $156.8 million, according to the complaint. However, "Heffler's employee Christian Penta defrauded three separate class actions, including the Action, of tens of millions of dollars," the complaint states. Mr. Penta was a senior accountant for Heffler, according to the complaint. "The amount Heffler paid from the NationsBank settlement fund on the false claims submitted by Penta and his co-conspirators totaled somewhere over $5.0 million." Mr. Penta and five others were charged on Sept. 11, 2008 with mail fraud and wire fraud for filing false claims in the NationsBank settlement as well as other class action settlements, the complaint states. Mr. Penta pleaded guilty to the charges. The class includes all class members from the NationsBank settlement. It seeks damages for breach of fiduciary duty and accountant malpractice. A copy of the Complaint in Oetting v. Heffler, Radetich & Saitta, LLP, Case No. 11-cv-00253 (E.D. Mo.), is available at: http://www.courthousenews.com/2011/02/09/CPAs.pdf The Plaintiffs are represented by: Frank H. Tomlinson, Esq. 15 North 21st Street, Suite 302 Birmingham, AL 35203 Telephone: (205) 326-6626 E-mail: htomlinson@bellsouth.net HOOVER INC: Recalls 142,000 Hoover(R) WindTunnel Canister Vacuums ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Hoover Inc., of Glenwillow, Ohio, announced a voluntary recall of about 142,000 Hoover(R) WindTunnel Canister Vacuums. Consumers should stop using recalled products immediately unless otherwise instructed. The power cord between the power nozzle and the wand connector can short-circuit posing fire and shock hazards to consumers. This condition can occur even if the vacuum has been turned off but left plugged in. Hoover has received 69 reports of overheating or electrical malfunction, including one report of fire and smoke damage, and two reports of carpet damage. There has been one report of a minor injury. This recall involves the Hoover WindTunnel Bagless Canister Vacuum model S3755. The vacuum is silver and black in color, and comes with a power nozzle. The model number can be found on a label on the bottom of the canister. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11124.html The recalled products were manufactured in China and sold through mass merchandisers, department stores and independent vacuum retailers nationwide and online from March 2003 to December 2008 for between $250 and $280. Consumers should immediately stop using the recalled vacuum cleaners and contact Hoover for a free repair. For additional information, contact Hoover toll-free at (888) 564-2066 between 8:00 a.m. and 7:00 p.m., Eastern Time, Monday through Friday, or visit the firm's Web site at http://www.hoover.com/windtunnelcanisterrecall/ IKEA ISRAEL: Communities Mull Class Action Over Feb. 5 Fire ----------------------------------------------------------- Michal Magalit, writing for Globes, reports that residents of Even Yehuda and other communities near the burned down IKEA Israel store at Poleg Junction in Netanya are preparing a class-action lawsuit against the retailer for alleged smoke damage from the Feb. 5 fire. 40 residents from Even Yehuda have joined the lawsuit. Residents from Tel Yitzhak, Beit Yehoshua, Kfar Netter, and Kadima are also planning to join. The plaintiff's representative, Att. Anat Hillel, said, "Soot from the fire spread mainly to Even Yehuda because of the wind, and new homes there were affected by the soot." She obtained complaints from residents that soot from fire streaked their homes' exterior walls and garden walls, stores were blackened, and there is concern about damage to vegetation and lawns. The residents also are worried about possible toxins from burned materials, and that their children or pets might have come into contact with these toxins. Paint on decks, roofs, pergolas, and balconies was also damaged. The plaintiffs have not yet established an amount of damages sought. Ms. Hillel said, "Additional damage may be discovered later by an expert opinion on the subject." Isralom Properties Ltd. and British-Israel Investments Ltd. (TASE: BRTS) own IKEA Israel's properties in equal shares. IKEA said in response, "We will respond when we see the lawsuit." Isralom said in response, "When we receive the lawsuit, we will study it and respond accordingly." INSURANCE COUNCIL: Queensland Flood Victims Mull Class Action -------------------------------------------------------------- Emma Sykes and Scott Lamond, writing for ABC Brisbane, report that tempers ran high in Ipswich on Feb. 8 as the first of six community information meetings about flood recovery got underway. The first of six Insurance Council of Australia community information meetings to assist people affected by the recent Queensland floods was met with threats of protest and class action by almost two hundred angry and frustrated locals. Representatives from the Insurance Council, the Financial Ombudsman Service and Queensland Legal Aid gathered to provide both a forum for policy holders to raise insurance issues directly with the industry and for the Insurance Council to provide a brief on the recovery process. But as many residents expressed at the meeting, they're falling through the cracks in the system. Margaret Jensen's home in Tivoli was completely inundated, and she's been left homeless. "Fed up. People were fed up with a system where they weren't fitting in. "There was no response from the numerous insurance companies, and I do believe some sort of collective arrangement such as a class action is required so that all of us can be heard, and throughout not only Queensland but the rest of Australia. Ms. Jensen says residents want answers from insurance companies, "how you define your insurance policy?" and more importantly she says "let you know what your policy covers." "It needs a class action for insurance companies to be accountable and be held responsible for what they're taking dollars for," she says. Loretta Kreet from Legal Aid Queensland suggests all residents lodge a claim with their insurance company regardless of advice they may receive about being ineligible. "There is a whole process you can go through to challenge a claim, but you must lodge the claim first. Ms. Kreet says the next step is getting legal advice. The Financial Ombudsman Service representative Graham Warner understands that people are very angry. "I was hoping out of the meeting we'd be able to give them a direction that they can travel in relation to their claims. "No doesn't necessarily mean no straight off." Mr. Warner says all involved agencies must come to an agreement on how people define what caused losses and damage in this event. The forum is for anyone having trouble getting flood insurance claims paid, and will continue this week. Wednesday, February 9: 7-9 p.m., Goodna State School RSVP for Goodna Thursday, February 10: 7-9 p.m., Karalee State School RSVP for Karalee Tuesday, February 15: 7-9 p.m., Oxley Bowling Club RSVP for Oxley Wednesday, February 16: 7-9 p.m., Yeronga Services Club (Function Room 1) RSVP for Yeronga Thursday, February 17: 7-9 p.m., Uniting Church Hall, Cnr Station and Musgrave Roads, INDOOROOPILLY RSVP for Indooroopilly For more information on your rights: The Ombudsman Service Natural Disaster Hotline is 1800 337 444. Legal Aid Queensland 1300 65 11 88. JOHN THOMAS FINANCIAL: Sued for Violation of New York Labor Law --------------------------------------------------------------- Tareq Abed, on behalf of himself and others similarly situated v. John Thomas Financial, Inc., et al., Case No. 650341/2011 (N.Y. Sup. Ct., New York Cty. February 8, 2011), seeks declaratory relief and monetary damages for defendants' willful violation of 12 NYCRR Section 142-2.2, and New York Labor Law Sections 191(1)(c), 193, and 198-b. NYCRR is the acronym for the New York Codes, Rules and Regulations. Mr. Abed, who worked for defendants as a stock broker from August 2009 until October 2010, accuses the New York City-based independent broker dealer and its owner and president, defendant Anastasios Belesis, of failing to properly compensate class members for all hours worked and making improper deductions from their paychecks. The Plaintiff is represented by: Matthew Kadushin, Esq. Charles Joseph, Esq. Michael D. Palmer, Esq. D. Maimon Kirschenbaum, Esq. JOSEPH, HERZFELD, HESTER & KIRSCHENBAUM LLP 233 Broadway, 5th Floor New York, NY 10279 Telephone: (212) 688-5640 KEYNOTE SYSTEMS: Awaits Outcome of Appeal of Settlement Order ------------------------------------------------------------- Keynote Systems, Inc., is awaiting a ruling on appeals of a court order approving a settlement of a class action lawsuit related to its initial public offering, according to the Company's Feb. 7, 2011 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. In August 2001, the Company and certain of its current and former officers were named as defendants in two securities class-action lawsuits based on alleged errors and omissions concerning underwriting terms in the prospectus for the Company's initial public offering. A Consolidated Amended Class Action Complaint for Violation of the Federal Securities Laws was filed on or about April 19, 2002, and alleged claims against the Company, certain of its officers, and underwriters of the Company's September 24, 1999 initial public offering, under Sections 11 and 15 of the Securities Act of 1933, as amended, and under Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, as amended. The lawsuit alleged that the defendants participated in a scheme to inflate the price of the Company's stock in its initial public offering and in the aftermarket through a series of misstatements and omissions associated with the offering. The lawsuit is one of several hundred similar cases pending in the Southern District of New York that have been consolidated by the court. The Company was a party to a global settlement with the plaintiffs that would have disposed of all claims against it with no admission of wrongdoing by the Company or any of its present or former officers or directors. The settlement agreement had been preliminarily approved by the Court. However, while the settlement was awaiting final approval by the District Court, in December 2006 the Court of Appeals reversed the District Court's determination that six focus cases could be certified as class actions. In April 2007, the Court of Appeals denied plaintiffs' petition for rehearing, but acknowledged that the District Court might certify a more limited class. At a June 26, 2007 status conference, the Court approved a stipulation withdrawing the proposed settlement. On August 14, 2007, plaintiffs filed amended complaints in the focus cases, and a motion for class certification in the focus cases on September 27, 2007. On November 13, 2007, defendants in the focus cases filed a motion to dismiss the amended complaints for failure to state a claim, which the District Court denied on March 2008. Plaintiffs, the issuer defendants, the underwriter defendants, and the insurance carriers for the defendants, have engaged in mediation and settlement negotiations. The parties reached a settlement agreement, which was submitted to the District Court for preliminary approval on April 2, 2009. As part of this settlement, the Company's insurance carrier has agreed to assume the Company's entire payment obligation under the terms of the settlement. On June 10, 2009, the District Court granted preliminary approval of the proposed settlement. After a September 10, 2009 hearing, the District Court gave final approval to the settlement on October 5, 2009. Several objectors have filed notices of appeal to the United States Court of Appeals for the Second Circuit from the District Court's October 5, 2009 order approving the settlement. Although the District Court has granted final approval of the settlement, there can be no guarantee that it will not be reversed on appeal. The Company believes that it has meritorious defenses to these claims. If the settlement is not implemented and the litigation continues against the Company, the Company would continue to defend against this action vigorously. LASERCARD CORP: Weiss & Lurie Files Class Action in California -------------------------------------------------------------- Weiss & Lurie, a national class action and shareholder rights law firm, has filed a class action lawsuit in the United States District Court for the Northern District of California on behalf of all shareholders of LaserCard Corporation. On December 20, 2010, LaserCard announced that it had entered into a definitive merger agreement to be acquired by ASSA ABLOY, Inc. for $6.25 per share. The complaint filed in the lawsuit, Miller v. DeVincenzi, et al., alleges that defendants violated the federal securities laws by omitting material information from LaserCard's December 22, 2010 Schedule 14D-9, and that LaserCard's directors violated their fiduciary duties by failing to obtain the best possible price for the Company. If you wish to wish to serve as lead plaintiff in this litigation, you must move the Court no later than 60 days from February 8, 2011. However, in order to do so, you must meet certain legal requirements pursuant to the Private Securities Litigation Reform Act of 1995. A lead plaintiff is a representative party who acts on behalf of other class members in directing the litigation. In order to be appointed lead plaintiff, the Court must determine that the class member's claim is typical of the claims of other class members, and that the class member will adequately represent the class. Under certain circumstances, one or more class members may together serve as lead plaintiffs. Your ability to share in any recovery is not, however, affected by your decision whether or not to serve as a lead plaintiff. You may retain Weiss & Lurie, or other counsel of your choice, to serve as your counsel in this action. Any member of the class may move the Court to serve as lead plaintiff, or may choose to do nothing and remain an absent class member. Contacts: Julia J. Sun, Esq. WEISS & LURIE 1500 Broadway, Suite 1600 New York, NY 10036 Telephone: 212/682-3025 - or - Leigh A. Parker, Esq. WEISS & LURIE 10940 Wilshire Boulevard, 23rd Floor Los Angeles, CA 90024 Telephone: 310/208-2800 E-mail: infony@weisslurie.com Web site: http://www.weisslurie.com/ MATRIX SERVICE: Final Settlement Payments Expected This Month ------------------------------------------------------------- Matrix Service Company obtained final approval of class suit settlement filed against the Company in California and final payments of $4.1 million are expected to be made this month, according to the Company's Feb. 7, 2011 Form 10-Q for the quarter ended Dec. 31, 2010. On December 8, 2008 a class action lawsuit was filed in the Superior Court of California, Los Angeles County alleging that the Company's subsidiary, Matrix Service Inc., and any subsidiary or affiliated company within the State of California had a consistent policy of failing to pay overtime wages in violation of California state wage and hour laws. Specifically, the lawsuit alleged that the Company was requiring employees to work more than 8 hours per day and failing to compensate at a rate of time and one-half, failing to pay double time for all hours worked in excess of twelve in one day, and not paying all wages due at termination. The class sought all unpaid overtime compensation, waiting time penalties, injunctive and equitable relief and reasonable attorneys' fees and costs. The class included approximately 1,500 current and former employees. On September 1, 2009 a second class action lawsuit was filed in the Superior Court of California, Alameda County also alleging that MSI and Matrix Service Company failed to comply with California state wage and hour laws. The September 2009 Action included similar allegations to the December 2008 Action but also alleged that the Company did not provide second meal periods and third rest periods for employees who worked more than 10 hours in a day, complete and accurate itemized wage statements, compensation for all compensable travel time, and did not take bonus payments into account when calculating the regular wage rate, leading to incorrect overtime rates. The class sought all allowable compensation, penalties for rest and meal periods not provided, restitution and restoration of sums owed, statutory penalties, declaratory and injunctive relief, and attorneys' fees and costs. The plaintiffs then amended the September 2009 Action to assert damages under the Private Attorney General's Act. The September 2009 Action increased the class to approximately 2,300 current and former employees. The cases were coordinated in Alameda County. At the plaintiff's request, mediation was held on September 7, 2010. In mediation, the parties executed a Memorandum of Understanding awarding the plaintiffs $4.0 million. The award was in addition to amounts previously paid to the class members of $1.9 million. The September Settlement was subject to court approval and resolved all class member claims included in the December 2008 Action and the September 2009 Action. The award was designated to pay the class member claims, an enhancement award to the three named plaintiffs, the cost of administration, and the class members' attorneys' fees and costs. As a result of these actions and the related settlement, the Company recorded a cumulative charge of $6.1 million, of which $5.1 million was recorded in fiscal 2010 and $1.0 million was recorded in fiscal 2009. The fiscal 2010 charge included an estimate of the cost that will be incurred by the Company for payroll taxes that will be paid in conjunction with the September Settlement. On January 20, 2011 the Company received final court approval of the September Settlement. Final payments of $4.1 million, which include $4.0 million deposited with the claim administrator in December 2010 and $0.1 million for applicable payroll taxes, are expected to be made in February 2011. MATRIXX INITIATIVES: Expects Decision in "Siracusano" Suit by June ------------------------------------------------------------------ Matrixx Initiatives, Inc., discloses that a decision by the United States Supreme Court regarding its review of a dismissal of a consolidated securities class action lawsuit styled Siracusano, et al., vs. Matrixx Initiatives, Inc., et al., is expected by June 2011, according to the Company's Feb. 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. Two class action lawsuits were filed in April and May 2004 against the Company, its previous President and Chief Executive Officer, Carl J. Johnson, and William J. Hemelt, its President and Chief Executive Officer, alleging violations of federal securities laws. On January 18, 2005, the cases were consolidated and the court appointed James v. Siracusano as lead plaintiff. The amended complaint also includes the Company's Vice President of Research and Development, Timothy L. Clarot, as a defendant and was filed March 4, 2005. The consolidated case is Siracusano, et al. vs. Matrixx Initiatives, Inc., et al., in the United States District Court, District of Arizona, Case No. CV04-0886 PHX DKD. Among other things, the lawsuit alleges that between October 2003 and February 2004, the Company made materially false and misleading statements regardingthe Company'sZicam Cold Remedy products, including failing to adequately disclose to the public the details of allegations that the Company's products caused damage to the sense of smell and of certain product liability lawsuits pending at that time. The Company filed a motion to dismiss this lawsuit and, on March 8, 2006, the Company received an Order dated December 15, 2005 granting the motion to dismiss the case, without prejudice. On April 3, 2006, the plaintiff appealed the Order to the United States District Court of Appeals, Ninth Circuit and on October 28, 2009, the Ninth Circuit Court reversed the decision of the United States District Court, District of Arizona. On June 14, 2010, the United States Supreme Court granted certiorari review and heard oral arguments on January 10, 2011. A decision is expected by June 2011. MATRIXX INITIATIVES: Continues to Defend "Shapiro" Suit in Arizona ------------------------------------------------------------------ Matrixx Initiatives, Inc., continues to defend itself against a class action lawsuit styled Shapiro et al. vs. Matrixx Initiatives, Inc., et al. in Arizona, according to the Company's Feb. 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. A putative class action was filed on July 17, 2009 against the Company; William J. Hemelt, the Company's President and Chief Executive Officer; Samuel C. Cowley, the Company's Executive Vice President of Business Development, General Counsel and Secretary; Timothy L. Clarot, the Company's Vice President of Research & Development; and Carl J. Johnson, a former President and Chief Executive Officer, alleging violations of federal securities laws. Shapiro et al. vs. Matrixx Initiatives, Inc. et al., in the United States District Court, District of Arizona, Case No. 2:09-cv- 01479-ECV. The lawsuit alleges that the Company and the named officers failed to disclose to the FDA and to the public information about adverse events regarding the Zicam Cold Remedy nasal gel products and that the Company and such officers made false and misleading statements regarding the Company's compliance with FDA regulations. The Company believes plaintiff's allegations are without merit and intends to vigorously defend the lawsuit. MATRIXX INITIATIVES: Defends "Schneider" Suit Over Wonder Merger ---------------------------------------------------------------- Matrixx Initiatives, Inc., is defending itself from a class action complaint filed by one of its stockholders in Arizona over its proposed merger with Wonder Holdings, Inc., according to the Company's Feb. 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. On December 14, 2010, the Company entered into a definitive merger agreement with Wonder Holdings Acquisition Corp. and Wonder Holdings, Inc., both of which are affiliates of and controlled by H.I.G. Capital, LLC. Under the terms of the merger agreement, the affiliates of H.I.G. Capital, LLC, commenced a tender offer to purchase for cash all of the outstanding shares of Matrixx common stock, including the associated preferred stock purchase rights, at a price of $8.00 per share. The tender offer commenced on December 22, 2010, and was set to expire on February 4, 2011, unless extended in accordance with the terms of the Merger Agreement and the applicable rules and regulations of the SEC. As announced on Schedule 14D-9 Amendment No. 7, filed with the SEC on February 2, 2011, Purchaser increased the price to $8.75 per share in cash, without interest and less any applicable withholding taxes, and extended the expiration of the offer to purchase for cash all of the outstanding shares of Matrixx until 11:59 p.m., New York City time, on February 14, 2011. If the tender offer is successfully completed, the parties will complete a second-step merger in which any remaining shares of the Company will be converted into the right to receive the same price per share paid in the tender offer. On January 7, 2011, Floyd Schneider, a purported stockholder of the Company, filed a complaint on behalf of himself and as a putative class action on behalf of the Company's public stockholders against all of the Company's current directors, the Company, Wonder Holdings Acquisition Corp. and Wonder Holdings, Inc. in the Superior Court of the State of Arizona for the County of Maricopa. The complaint alleges, among other things, that the Individual Defendants breached their fiduciary duties in connection with the tender offer and proposed merger by failing to engage in an honest and fair sale process and by providing materially inadequate disclosure and material disclosure omissions regarding the tender offer and the merger and that the Company, Wonder Holdings Acquisition Corp. and Wonder Holdings, Inc. have aided and abetted the breach of fiduciary duties. The complaint seeks, among other things, a declaration that the action brought by the complaint is a class action and that plaintiff be certified as the class representative, an order enjoining the transactions contemplated by the Merger Agreement, rescissory damages in the event the transaction is consummated prior to the entry of a final judgment, an accounting of all damages caused by the defendants and all profits and special benefits obtained, and an award to the plaintiff of all costs, including attorneys' and experts' fees and expenses. The Company believes that the Schneider Complaint is without merit and intends to contest the case vigorously. MATRIXX INITIATIVES: Seeks Final OK of Zicam Economic Injury Suits ------------------------------------------------------------------ Matrixx Initiatives, Inc., is awaiting final court approval of its settlement of economic injury class action lawsuits related to its Zicam Cold Remedy nasal gel products, according to the Company's Feb. 7, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. Since 2003, a number of lawsuits have been filed against the Company alleging that its Zicam Cold Remedy nasal gel products have caused the permanent loss or diminishment of the sense of smell or smell and taste. The lawsuits principally fall into two categories of product liability claims: (i) those alleging that the Company's Zicam Cold Remedy nasal gel products caused the permanent loss or diminishment of the sense of smell or smell and taste (i.e., personal injury claims) and (ii) those seeking compensation for the purchase price of the Zicam Cold Remedy nasal gel products or various forms of equitable relief based on allegations that the Company misrepresented the safety and/or efficacy of such products to consumers (i.e., economic injury claims). All of the economic injury lawsuits have been filed as class actions but none of the classes has been certified to date. In August 2009, the Company filed a motion to consolidate and transfer all of the personal injury and economic injury matters, including any purported class actions, pending against the Company in federal court to the District of Arizona, pursuant to MDL procedures. On October 9, 2009, the Judicial Panel on Multidistrict Litigation established MDL No. 2096, In Re: Zicam Cold Remedy Marketing and Sales Practices Litigation, and centralized the economic injury and personal injury actions that involve common questions of fact before a federal court in the District of Arizona. With one exception, the Panel transferred all of the economic injury cases at issue in the original MDL request. The Panel also began the MDL transfer process for the remaining economic injury and personal injury matters pending against the Company in federal courts across the country. The plaintiffs in these remaining cases will have the opportunity to object to the MDL transfer of their specific case. The Panel determined that the case of Hohman et. al. vs. Matrixx Initiatives, Inc. et. al. (filed June 18, 2009, Northern District of Illinois) did not involve sufficient common questions of fact to allow for consolidation and transfer to the MDL at that time. The Company expects any federal economic injury and personal injury matters filed in the future to be transferred and consolidated pursuant to the MDL transfer process, subject to the plaintiffs' opportunity to object. Subsequent to Sept. 30, 2010, two personal injury class action lawsuits and one economic injury class action lawsuit have been dismissed. Economic Injury Claims -- Settlement Status On August 19, 2010, the Company and plaintiffs' attorneys representing all of the various nationwide and statewide economic injury plaintiffs signed a Memorandum of Understanding setting forth their agreement in principle to settle those 18 lawsuits. On August 26, 2010, the MDL Judge issued an order objecting to the procedural mechanism the parties proposed for effectuating the settlement; the order did not consider the merits of the proposed settlement. On October 1, 2010, the Company and lead plaintiffs' attorneys representing all of the economic injury plaintiffs executed a revised Memorandum of Understanding setting forth a different procedure for seeking approval of the settlement. The revised Memorandum of Understanding sets forth a procedure for approval of the settlement of injunctive relief claims relating to the safety of the Zicam Cold Remedy nasal gel spray and swabs before the MDL Court and approval of the settlement of claims relating to the efficacy of the Zicam Cold Remedy nasal gel spray and swabs as well as other current products in the Northern District of Illinois, the jurisdiction in which the only economic injury lawsuit not made subject to the MDL procedures is pending. On October 19, 2010, the parties entered into a settlement agreement to resolve the injunctive relief claims relating to safety of the Zicam Cold Remedy nasal gel spray and swabs. On the same day, plaintiffs filed a motion to certify an injunctive relief settlement class based on the terms of the settlement agreement before the MDL Court. On November 2, 2010, the MDL Court requested that the parties submit additional briefing explaining various aspects of the settlement. As part of the settlement of the safety claims set forth in the settlement agreement, which remains subject to court approval, the Company agreed that, if its Zicam Cold Remedy nasal gel spray and/or swab products are re-introduced into the market, the packaging will include any language regarding adverse effects required by the FDA. Under the settlement agreement, the Company will be required to pay plaintiffs' attorneys fees and has agreed to not object to an attorney's fee application not to exceed $150,000, which fee award is subject to court approval. As part of the settlement of the efficacy claims as set forth in the MOU, the Company has agreed to add certain clarifications to its packaging regarding the use and status of several current products. In addition, the Company has a tentative agreement to (i) pay the plaintiffs' attorneys fees and costs for the litigation in an aggregate amount not to exceed $1.75 million; (ii) pay incentive awards to the named plaintiffs in an aggregate amount not to exceed a total of $35,000 and (iii) be responsible for the costs of providing notice of the settlement to class members. On January 13, 2011, the MDL Court preliminarily approved the settlement subject to certain modifications that included a full release of all damage claims arising out of the safety of the products. The MDL Court also directed the parties to give class notice. The parties are preparing an amended settlement agreement to reflect these modifications. A hearing date for final approval of the settlement agreement has not been scheduled. As of December 31, 2010, the Company has reserved $2.2 million to resolve these matters. The Company cannot predict with certainty whether definitive agreements finally settling all of the economic injury claims will ultimately be approved by the courts. Nothing in the revised MOU or settlement agreement constitutes an admission of any wrongdoing, liability, or violation of law by the Company. Rather, the Company agreed to settle the economic injury claims to reduce its high litigation defense costs and to avoid the inherent risks associated with litigation. Personal Injury Claims -- Settlement Agreement On December 13, 2010, the Company entered into an agreement to settle all other claims made by the plaintiffs and claimants who allege personal injury claims (approximately 995 plaintiffs and approximately 949 claimants) against the Company, including plaintiffs who are subject to the multidistrict litigation and the consolidated proceedings pending in state courts in California and Arizona. The Company will pay no more than $15.5 million to fund awards to be made under the settlement program. The foregoing funds will cover all costs, attorneys' fees and other expenses associated with administration of the program by plaintiffs' counsel. The Settlement Agreement acknowledges that the settlement is not an admission or concession on the Company's part of any liability to the plaintiffs or claimants. The $15.5 million settlement program amount will be funded by the Company in three installments. The Company paid the first installment of $11.5 million into an escrow account on December 29, 2010 following the Company's receipt of a verified list of plaintiffs and claimants. The Company will pay the second installment of $2 million no later than 8 months after its payment of the initial installment. The Company will pay the third installment of $2 million, less amounts based on plaintiffs and claimants who elect not to participate in the settlement program, no later than 20 months after its payment of the initial installment. Pursuant to the Settlement Agreement, the Company retained the right and option to void and cancel the Settlement Agreement in its entirety, at its sole discretion, if prior to the close of business on January 20, 2011 (the "Settlement Expiration Date"), plaintiffs' counsel failed to enroll and achieve participation in the settlement program by (a) at least 97% of all plaintiffs and claimants who used a Zicam Cold Remedy Nasal Gel dispensed with a single hole actuator pump and (b) at least 94% of all plaintiffs and claimants who used other Zicam products. In response to the request of plaintiffs' counsel for additional time to secure the required level of participation, the Company agreed to extend the Settlement Expiration Date to January 31, 2011. The Company has determined that, as of the Settlement Expiration Date, Plaintiffs' counsel met the required levels of participation, meaning that the Settlement Agreement is in effect. Approximately 5% of the eligible plaintiffs and claimants have not confirmed their participation in the settlement program. The Company is uncertain regarding their intentions. It is possible that new product liability lawsuits may be filed against the Company. The Company intends to continue to vigorously defend itself in any remaining cases and in any new cases that may arise. META FINANCIAL: Still Defends Suits Over Certificates of Deposit ---------------------------------------------------------------- Meta Financial Group, Inc., is still defending itself against a class action lawsuit involving the sale of certificates of deposits, according to the Company's Feb. 7, 2011, Form 10-Q filing with the Securities and Exchange Commission for the quarter ended December 31, 2010. Lawsuits against MetaBank involving the sale of purported MetaBank certificates of deposit continue to be addressed. In all, nine cases have been filed to date, and of those nine, three have been dismissed, and four have been settled for payments that the Company deemed reasonable under the circumstances, including the costs of litigation. Of the two remaining cases, one is a class action case. On May 5, 2010, in that class action, Guardian Angel Credit Union v. MetaBank et al., Case No. 08-cv-261-PB (USDC, District of NH), the court granted the plaintiff's motion to certify the class. Additionally, a lawsuit relating to this matter has been filed by Airline Pilots Assoc Federal Credit Union in the Iowa District court for Polk County, Case number CL-118792. The underlying matter was first disclosed in the Company's quarterly report for the period ended December 31, 2007, which stated that an employee of the Bank had sold fraudulent CDs for her own benefit. The unauthorized and illegal actions of the employee have since prompted a number of demands and lawsuits seeking recovery on the fraudulent CDs to be filed against the Bank, which have been disclosed in subsequent filings. The employee was prosecuted, convicted and, on June 2, 2010, sentenced to more than seven years in federal prison and ordered to pay more than $4 million in restitution. Notwithstanding the nature of her crimes, which were unknown by the Bank and its management, plaintiffs in the two remaining cases seek to impose liability on the Bank under a number of legal theories with respect to the remaining $3.6 million of fraudulent CDs that were issued by the former employee. The Bank and its insurer, which has assumed defense of the action and which is advancing defense costs subject to a reservation of rights, continue to vigorously contest liability in the remaining actions. META FINANCIAL: Continues to Defend Two Stockholder Suits in Iowa ----------------------------------------------------------------- Meta Financial Group, Inc., continues to defend itself from two separate federal securities class action lawsuits in Iowa, according to the Company's Feb. 7, 2011, Form 10-Q filing with the Securities and Exchange Commission for the quarter ended Dec. 31, 2010. The Company has been informed that two former stockholders, Thirumalesh Bhat and Alaa M. Elgaouni, have separately filed purported class action lawsuits against the Company and certain of its officers alleging violations of certain federal securities laws. The cases -- Thirumalesh Bhat v. Meta Financial Group, Inc., J. Tyler Haahr, David W. Leedom, Bradley C. Hanson and Troy Moore; Case No. 5:10-cv-04099-DEO, and Alaa M. Elgaouni v. Meta Financial Group, Inc., J. Tyler Haahr, David W. Leedom; Case No. C10-4108MWB -- were filed on October 22, 2010 and November 5, 2010 in the United States District Court for the Northern District of Iowa purportedly on behalf of those who purchased the Company's stock between May 14, 2009 and October 15, 2010. The complaints allege that the named officers violated Sections 10(b) and 20(a) of the Securities Exchange Act and SEC Rule 10b-5 in connection with certain allegedly false and misleading public statements made during this period by the Company and its officers. The complaints do not specify an amount of damages sought. The Company denies the allegations in the complaints and intends to vigorously pursue its defense. MIKI HOUSE: Recalls 10 Windbreaker Jackets ------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with MIKI HOUSE USA, Inc. of New York, announced a voluntary recall of about 10 Windbreaker Jackets. Consumers should stop using recalled products immediately unless otherwise instructed. The jackets contain drawstrings which pose strangulation and entrapment hazards to young children. In February 1996, CPSC issued guidelines, which were incorporated into an industry voluntary standard in 1997, to help prevent children from strangling or getting entangled on the neck and waist drawstrings in upper garments, such as jackets and sweatshirts. No injuries or incidents have been reported. This recall involves children's windbreaker jackets with drawstrings in the hoods. The jackets were sold in red, blue, and multi-colored (purple, blue, yellow, green, light blue) in sizes 12 months to 4T. The style number is 11-3706-730 and is located both on the price ticket and care instructions. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml11/11722.html The recalled products were manufactured in China and sold through Bloomingdale's Department Store in New York from August 2010 to November 2010 for about $80.00 Consumers should immediately remove the drawstrings from the jackets to eliminate the hazard. Consumers may contact the firm to receive a full refund. For additional information, please contact MIKI HOUSE USA, Inc. at (877) 747-7653 between 10:00 a.m. and 6:00 p.m., Eastern Time, Monday through Friday, or e-mail the firm at info@mikihouse-usa.com NATIONAL CREDIT: Sued Over Unlawful Debt Collection Practices ------------------------------------------------------------- Courthouse News Service reports that a federal class action claims National Credit Solutions, which bought the accounts receivable from bankrupt Hollywood Video, placed more than 500,000 unverified debt delinquency notices in customers' credit files, to "strong- arm" them into paying collection fees and disputed debts. A copy of the Complaint in Safier v. National Credit Solutions, LLC, Case No. 11-cv-00121 (D. N.M.), is available at: http://www.courthousenews.com/2011/02/09/Credit.pdf The Plaintiff is represented by: Matthew L. Garcia, Esq. BACH & GARCIA, LLC 300 Central SW, Suite 2000 Albuquerque, NM 87102 Telephone: (505) 899-1030 NATIONAL FOOTBALL LEAGUE: Eagan Avenatti Files Class Action ----------------------------------------------------------- Eagan Avenatti, LLP, a law firm specializing in consumer rights, filed a class action lawsuit earlier on Feb. 8 in the United States District Court for the Northern District of Texas, Dallas Division (Case No. 3:11-cv-00248-M), alleging breach of contract, fraud and deceptive sales practices by Jerry Jones, the National Football League, the Dallas Cowboys Football Club and related defendants in connection with Super Bowl XLV held on Feb. 6 in Arlington, Texas. The complaint, which seeks compensatory damages of over $5 Million, claims that the unlawful acts of Jones, the NFL and the Cowboys resulted in approximately 400 fans who purchased tickets and traveled to the game being denied a seat, despite having spent thousands of dollars in tickets and travel expenses to attend the Super Bowl. The complaint also alleges that Jones and the Cowboys deceived Cowboys season ticket holders known as the "Founders" into paying $1,200 a seat for Super Bowl tickets that turned out to be temporary seats with obstructed views. The "Founders," who collectively account for over $100 Million in personal seat licenses sold to help fund construction of the stadium, each paid at least $100,000 per seat for their seat license, which the Cowboys and Jones promised would entitle them to the "best sightlines in the stadium" and the right to purchase a ticket to the Feb. 6 Super Bowl at face value. Instead, they arrived at the stadium to discover that they had been assigned to sit in obstructed view, temporary metal seats, which had only recently been installed in an effort to meet Mr. Jones' goal of breaking NFL Super Bowl attendance records. "You don't have to own the Cowboys or run the NFL to know that you cannot lawfully treat people like this," stated lead attorney Michael Avenatti. "At an absolute minimum, Jones, the Cowboys and the NFL need to accept full responsibility and reimburse fans one hundred percent for their expenses and damages. Anything short of that is a slap in the face to the fans of the NFL and the Cowboys." For more information about the lawsuit, please visit http://www.ticketlawsuit.com/or contact Judy Regnier at jregnier@eoalaw.com About Eagan Avenatti, LLP Michael J. Avenatti, Esq. is a founding partner of Eagan Avenatti, LLP, a firm of trial attorneys that specialize in litigating a variety of high profile legal disputes in courts throughout the United States. Avenatti and EOA are consistently ranked among the best attorneys in America. Most recently, the firm won a $40 million jury verdict after a five week trial in New Jersey. The firm is based in Los Angeles, California. Please direct all media inquiries to: Suzy Quinn Director of Media Relations EAGAN AVENATTI, LLP Telephone: 949-706-7000 Cell: 310-465-9893 Email: squinn@eoalaw.com NAVISITE INC: Being Sold for Too Little, Mass. Suit Claims ---------------------------------------------------------- Courthouse News Service reports that Navisite shareholders say the company is selling itself too cheaply through an unfair process to Time Warner Cable, for $5.50 a share or $230 million, in a federal class action. A copy of the Complaint in Tansey v. Navisite, Inc., et al., Case No. 11-cv-10214 (D. Mass.), is available at: http://www.courthousenews.com/2011/02/09/TimeWarner.pdf The Plaintiff is represented by: Terence K. Ankner, Esq. PARTRIDGE, ANKNER & HORSTMANN, LLP The Berkeley Building 200 Berkeley Street, 16th Floor Boston, MA 02116 Telephone: (617) 859-9999 - and - Marc M. Umeda, Esq. Stephen J. Oddo, Esq. Arshan Amiri, Esq. Justin D. Rieger, Esq. ROBBINS UMEDA LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 NETWORK ENGINES: Awaits Outcome of Appeals on IPO Suit Settlement ----------------------------------------------------------------- Network Engines, Inc., is still awaiting a ruling on appeals filed regarding a settlement of a class action lawsuit relating to its initial public offering, according to the Company's Feb. 7, 2011, Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. A putative class action lawsuit was filed on December 3, 2001 in the United States District Court for the Southern District of New York against the Company and several underwriters of the Company's July 2000 initial public offering, alleging that the defendants violated federal securities laws by issuing and selling securities pursuant to the Company's IPO without disclosing to investors that the underwriter defendants had solicited and received excessive and undisclosed commissions from certain investors. The suit seeks damages and certification of a plaintiff class consisting of all persons who acquired shares of the Company's common stock between July 13, 2000 and December 6, 2000. On October 5, 2009, the Court issued an opinion granting plaintiffs' motion for final approval of a proposed settlement, approval of the plan of distribution of the settlement fund, and certification of the settlement classes. An Order and Final Judgment was entered on December 30, 2009. Various notices of appeal of the District Court's October 5, 2009 order were filed. On October 7, 2010, all but two parties who had filed a notice of appeal filed a stipulation with the District Court withdrawing their appeals with prejudice, and the two remaining objectors filed briefs in support of their appeals. On December 8, 2010, plaintiffs moved to dismiss with prejudice the appeal filed by one of the two appellants based on alleged violations of the Second Circuit's rules, including failure to serve, falsifying proofs of service, and failure to include citations to the record. The motion was fully briefed as of December 30, 2010, but the Second Circuit has not yet ruled on the motion. The filing of plaintiffs' motion tolled the deadline for appellees to file answering briefs on both appeals. The Company is unable to predict the outcome of this suit and as a result, no amounts have been accrued as of December 31, 2010. NOVA SCOTIA HOME: Two Former Residents File Class Action -------------------------------------------------------- TheChronicleHerald.ca reports that two former residents of the Nova Scotia Home for Colored Children have filed a proposed class action against the Westphal residential facility. Aubrey Pelley and Deanna Smith allege in court documents that they suffered years of physical, sexual and mental abuse at the hands of staff at the home, which is primarily for orphans or wards of the province. Ms. Pelley, now of Toronto, came to the home in 1948 at age 10 and remained there until 1954. Ms. Smith was nine when she came to the home in 1976. She left in 1979 and now lives in Alberta. Neither Ms. Pelley nor Ms. Smith could be reached for comment. But their claims echo dozens of others since allegations against the home first surfaced about a decade ago. In their statement of claim, Ms. Pelley and Ms. Smith said the home "created an atmosphere of indifference, tolerance and encouragement of excessive mental, physical and sexual abuse such that the repugnant practices pervaded the (home) and the relationships between the residents of the (home) . . . as well as between the agents, employees (and) servants." This systemic abuse inflicted on the black residents of the home led to feelings of low self-worth and compounded the marginalization they already felt as minorities, said their statement of claim. "The plaintiffs and class members were taught to have little faith in systems of authority. This led to an inability to address, as adults, the systemic abuses inflicted on them as young residents." The pair are acting as representative plaintiffs and have proposed to bring a class action against the home and the province on behalf of other Canadian residents who were also wards of the province and placed in the facility. Officials at the home have been served with a notice of intended action. Lawyer Ray Wagner represents the plaintiffs and about 55 other people in separate court actions against the home. In a news release on Feb. 8, he stated that "the proposed class action . . . will expedite claims as only one trial will be necessary on the alleged systemic abuses that pervaded the home." "If certified as a class proceeding, common issues will address the liability of the (home) and the province once and for all." None of the allegations have been proven in court. OPENWAVE SYSTEMS: Appeals on Settlement in IPO Suit Remain Pending ------------------------------------------------------------------ Appeals from the United States District Court for the Southern District of New York's order approving a settlement in the securities class action filed against Openwave Systems, Inc., remain pending, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2010. On November 5, 2001, a securities fraud class action complaint was filed in the United States District Court for the Southern District of New York. In re Openwave Systems Inc. Initial Public Offering Securities Litigation, Civ. No. 01-9744 (SAS) (S.D.N.Y.), related to In re Initial Public Offering Securities Litigation, 21 MC 92 (SAS) (S.D.N.Y.). It is brought purportedly on behalf of all persons who purchased shares of the Company's common stock from June 11, 1999 through December 6, 2000. The defendants are the Company and five of its present or former officers, and several investment banking firms that served as underwriters of the Company's initial public offering and secondary public offering. Three of the individual defendants were dismissed without prejudice, subject to a tolling of the statute of limitations. The complaint alleges liability under Sections 11 and 15 of the Securities Act of 1933 and Sections 10(b) and 20(a) of the Securities Exchange Act of 1934, on the grounds that the registration statements for the offerings did not disclose that: (1) the underwriters had agreed to allow certain customers to purchase shares in the offerings in exchange for excess commissions paid to the underwriters; and (2) the underwriters had arranged for certain customers to purchase additional shares in the aftermarket at predetermined prices. The amended complaint also alleges that false analyst reports were issued by Credit Suisse First Boston, Hambrecht & Quist, Robertson Stephens, and Piper Jaffray. No specific damages are claimed. Similar allegations were made in over 300 other lawsuits challenging public offerings conducted in 1999 and 2000, and the cases were consolidated for pretrial purposes. On April 2, 2009, the parties in all the lawsuits submitted a settlement for the Court's approval. Under the settlement, the Openwave Defendants would not be required to make any cash payment. On October 6, 2009, the Court approved the settlement, under which the Openwave Defendants are not required to contribute any cash. Subsequently, the Court entered a judgment on the settlement. Several notices of appeal have been filed by putative class members, challenging the settlement and the judgment. The Company believes a loss is not probable or reasonably estimable. Therefore no amount has been accrued as of December 31, 2010. PANTRY INC: Continues to Defend Consolidated Suit in Kansas ----------------------------------------------------------- The Pantry, Inc., continues to defend itself against class action lawsuits over motor fuel delivery in Kansas. Since the beginning of fiscal 2007, over 45 class action lawsuits have been filed in federal courts across the country against numerous companies in the petroleum industry. Major petroleum companies and significant retailers in the industry have been named as defendants in these lawsuits. The company has been named as a defendant in seven cases: -- one in Florida (Cozza, et al. v. Murphy Oil USA, Inc. et al., S.D. Fla., No. 9:07-cv-80156-DMM, filed on Feb. 16, 2007; -- one in Delaware (Becker, et al. v. Marathon Petroleum Company LLC, et al., D. Del., No. 1:07-cv-00136, filed on March 7, 2007; -- one in North Carolina (Neese, et al. v. Abercrombie Oil Company, Inc., et al., E.D.N.C., No. 5:07-cv-00091-FL, filed on March 7, 2007); -- one in Alabama (Snable, et al. v. Murphy Oil USA, Inc., et al., N.D. Ala., No. 7:07-cv-00535-LSC, filed on March 26, 2007; -- one in Georgia (Rutherford, et al. v. Murphy Oil USA, Inc., et al., No. 4:07-cv-00113-HLM, filed on June 5, 2007; -- one in Tennessee (Shields, et al. v. RaceTrac Petroleum, Inc., et al., No. 1:07-cv-00169, filed on July 13, 2007); and -- one in South Carolina (Korleski v. BP Corporation North America, Inc., et al., D.S.C., No 6:07-cv-03218-MDL, filed on Sept. 24, 2007. Pursuant to an Order entered by the Joint Panel on Multi-District Litigation, all of the cases, including the seven in which the company is named, have been transferred to the U.S. District Court for the District of Kansas and consolidated for all pre-trial proceedings. The plaintiffs in the lawsuits generally allege that they are retail purchasers who received less motor fuel than the defendants agreed to deliver because the defendants measured the amount of motor fuel they delivered in non-temperature adjusted gallons which, at higher temperatures, contain less energy. These cases seek, among other relief, an order requiring the defendants to install temperature adjusting equipment on their retail motor fuel dispensing devices. In certain of the cases, including some of the cases in which the company is named, plaintiffs also have alleged that because defendants pay fuel taxes based on temperature adjusted 60 degree gallons, but allegedly collect taxes from consumers on non-temperature adjusted gallons, defendants receive a greater amount of tax from consumers than they paid on the same gallon of fuel. The plaintiffs in these cases seek, among other relief, recovery of excess taxes paid and punitive damages. Both types of cases seek compensatory damages, injunctive relief, attorneys' fees and costs, and prejudgment interest. The defendants filed motions to dismiss all cases for failure to state a claim, which were denied by the court on February 21, 2008. A number of the defendants, including the Company, subsequently moved to dismiss for lack of subject matter jurisdiction or, in the alternative, for summary judgment on the grounds that plaintiffs' claims constitute non-justiciable "political questions." The Court denied the defendants' motion to dismiss on political question grounds on December 3, 2009. Defendants filed a request to appeal that decision to the United States Court of Appeals for the Tenth Circuit in June 2010. That request was denied on August 31, 2010. In May 2010, the Court granted class certification to Kansas fuel purchasers seeking implementation of automated temperature controls and certain disclosures, but deferred ruling on any class for damages. Defendants sought permission to appeal that decision to the Tenth Circuit in June, and that request was denied on August 31, 2010. In May 2010, the Court granted class certification to Kansas fuel purchasers seeking implementation of automated temperature controls and/or certain disclosures, but deferred ruling on any class for damages. Defendants sought permission to appeal that decision to the Tenth Circuit in June, and that request was denied on August 31, 2010. The Company continues to believe that there are substantial factual and legal defenses to the theories alleged in these lawsuits, and intend to vigorously defend against the claims. At this stage of proceedings, the Company says it cannot estimate its ultimate exposure to loss or liability, if any, related to these lawsuits. No updates were reported in the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 30, 2010. PANTRY INC: Still Defends "Amason" Suit in Alabama -------------------------------------------------- The Pantry, Inc., continues to defend itself against a class action lawsuit alleging violations of the Fair and Accurate Credit Transactions Act pending in Alabama. On Oct. 19, 2009, Patrick Amason, on behalf of himself and a putative class of similarly situated individuals, filed suit against The Pantry in the U.S. District Court for the Northern District of Alabama, Western Division (Patrick Amason v. Kangaroo Express and The Pantry, Inc. No. CV-09-P-2117-W). The plaintiff seeks class action status and alleges that The Pantry included more information than is permitted on electronically printed credit and debit card receipts in willful violation of the Fair and Accurate Credit Transactions Act, codified at 15 U.S.C. Section 1681c(g). The plaintiff seeks an award of statutory damages for each alleged willful violation of the statute, as well as attorneys' fees, costs, punitive damages and a permanent injunction against the alleged unlawful practice. The company believes that there are substantial factual and legal defenses to class certification and to the theories alleged in the lawsuit, and intend to vigorously defend against the claims. As the case is at a very early stage, the company cannot at this time estimate its ultimate exposure to loss or liability, if any, related to this lawsuit. No updates were reported in the company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 30, 2010. PENN VIRGINIA: Enters Into MOU With PVG Merger Class Plaintiffs --------------------------------------------------------------- On February 1, 2011, Penn Virginia Resource Partners, L.P. entered into a Memorandum of Understanding together with Penn Virginia Resource GP LLC, PVR Radnor LLC, Penn Virginia GP Holdings, L.P., PVG GP LLC, the individual directors of Holdings GP, and plaintiffs Kevin Epoch, Sanjay Israni and Anita Scheifele, purported Holdings unitholders, according to the Partnership's Feb. 8, 2011 Form 8-K filing with the U.S. Securities and Exchange Commission. The MOU concerns the settlement of certain litigation relating to the Agreement and Plan of Merger, dated September 21, 2010, by and between the Partnership, the Partnership GP, Holdings, Holdings GP and PVR Radnor LLC. As previously disclosed in the joint proxy statement/prospectus of the Partnership and Holdings filed with the Securities and Exchange Commission on December 23, 2010, Plaintiffs, as purported Holdings unitholders, filed various putative class action complaints against the Partnership, the Partnership GP, Holdings, Holdings GP, and certain of Holdings GP's directors and officers. On October 1, 2010, a putative class action complaint was filed by a purported Holdings unitholder against Holdings, the Partnership and certain of Holdings GP's directors in the Court of Common Pleas of Delaware County, Pennsylvania under the caption Epoch v. Penn Virginia GP Holdings, L.P., et al. The complaint alleges, among other things, that certain of the Defendants breached their fiduciary duties to Holdings' public unitholders in connection with the merger by, among other things, accepting insufficient consideration and engaging in a flawed process and that certain of the Defendants aided and abetted those breaches. The complaint sought an order certifying a class consisting of all Holdings public unitholders, enjoining the consummation of the merger, rescinding the merger, directing the board of directors of Holdings GP to obtain a transaction that is in the best interests of the Holdings unitholders and an award of attorneys' fees and costs. On November 15, 2010, the purported plaintiff filed an amended complaint. The amended complaint alleges that certain of the purported Defendants breached their duties to Holdings' unitholders pursuant to Holdings' amended and restated partnership agreement in connection with the merger by, among other things, engaging in a flawed process and failing to provide material information and/or providing materially misleading information to Holdings unitholders in connection with their vote on the merger and that certain of the Defendants aided and abetted those breaches. The amended complaint also alleges that certain of the purported Defendants breached the implied covenant of good faith and fair dealing that arises from Holdings' amended and restated partnership agreement. Among other things, the amended complaint seeks an order certifying a class consisting of all Holdings public unitholders, enjoining the consummation of the merger preliminarily and permanently, rescinding the merger, awarding damages and awarding attorneys' fees and costs. On October 6, 2010, a putative class action complaint was filed by a purported Holdings unitholder against Holdings, Holdings GP, the Partnership, the Partnership GP, PVR Radnor LLC and certain of Holdings GP's officers and directors in the Court of Common Pleas of Delaware County, Pennsylvania under the caption Scheifele v. Shea, et al. In the complaint, the plaintiff alleges that certain of the Defendants breached their fiduciary duties to Holdings' public unitholders in connection with the merger by, among other things, means of an unfair process and an unfair price and that certain of the Defendants aided and abetted those breaches. Among other things, the complaint seeks an order certifying a class consisting of all Holdings public unitholders, enjoining the merger preliminarily or permanently, rescinding the merger, awarding damages and awarding attorneys' fees and costs. On February 1, 2011, the parties to the Epoch and Scheifele actions described above entered into the MOU to settle the litigation in its entirety. The MOU provides that the parties will seek dismissal with prejudice of the litigation and a release of the Defendants from all present and future claims asserted in the litigation in exchange for a supplemental disclosure to the Joint Proxy Statement/Prospectus. The supplemental disclosure is set forth in a joint proxy statement/prospectus supplement filed with the Securities and Exchange Commission on February 3, 2011. In addition, in connection with the proposed settlement, the parties contemplate that Plaintiffs' counsel will petition the court for an award of attorneys' fees and expenses to be paid by the Defendants. The MOU is subject to a number of conditions, including, without limitation, completion of certain discovery by the plaintiffs, the drafting and execution of a formal Stipulation of Settlement, the consummation of the merger and court approval of the proposed settlement. There is no assurance that these conditions will be satisfied. SACRAMENTO, CA: Sued Over Illegal Reduction of Medical Coverage --------------------------------------------------------------- Courthouse News Service reports that the Sacramento County Retired Employees Association claims Sacramento County illegally reduced their medical and dental coverage, in a federal class action. A copy of the Complaint in Sacramento County Retired Employees Association, et al. v. The County of Sacramento, Case No. 11-at-00166 (E.D. Calif.), is available at: http://www.courthousenews.com/2011/02/09/HealthCover.pdf The Plaintiffs are represented by: Mark E. Merin, Esq. W. Gordon Kaupp, Esq. LAW OFFICE OF MARK E. MERIN 2001 P Street, Suite 100 Sacramento, CA 95811 Telephone: (916) 443-6911 E-mail: mark@markmerin.com gordon@markmerin.com SOLERA HOLDINGS: Still Defends "Total Loss Estimation" Lawsuit -------------------------------------------------------------- Solera Holdings, Inc., is still defending itself from a putative class-action lawsuit in connection with total loss estimation, according to the Company's Feb. 8, 2011 Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. The lawsuit alleges that the Company colluded with its insurance company customers to depress the repair time estimates generated by its repair estimating software. In addition, the Company is currently one of the defendants in a putative class action lawsuit alleging that it has colluded with its insurance company customers to cause the estimates of vehicle fair market value generated by its total loss estimation software to be unfairly low. Furthermore, the Company is also subject to assertions by its customers and strategic partners that it has not complied with the terms of its agreements with them or that the agreements are not enforceable against them, some of which are the subject of pending litigation and any of which could in the future lead to arbitration or litigation. While the Company does not expect the outcome of any such pending or threatened litigation to have a material adverse effect on its financial position, litigation is unpredictable and excessive verdicts, both in the form of monetary damages and injunction, could occur. In the future, the Company could incur judgments or enter into settlements of claims that could harm its financial position and results of operations. SOUTHWEST AIRLINES: Motion to Dismiss "Leonelli" Suit Pending ------------------------------------------------------------- Southwest Airlines Co.'s motion to dismiss a purported class action lawsuit in connection with its planned acquisition of AirTran Holdings, Inc., remains pending, according to the Company's Feb. 8, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2010. On September 28, 2010, Frederick Leonelli filed a purported class action lawsuit on behalf of himself and similarly situated AirTran stockholders in the First Judicial District Court of the State of Nevada for Carson City against AirTran, Robert L. Fornaro, AirTran's Chairman, President and Chief Executive Officer, Arne G. Haak, AirTran's Senior Vice President of Finance, Treasurer and Chief Financial Officer, each member of the AirTran board of directors, the Company, and Guadalupe Holdings Corp. The Leonelli complaint generally alleges that the consideration to be received by AirTran's stockholders in the merger is unfair and inadequate and that the AirTran officers and directors named as defendants breached their fiduciary duties by approving the merger agreement through an unfair and flawed process and by approving certain deal protection mechanisms contained in the merger agreement. The Leonelli complaint further alleges that AirTran, the Company, and Merger Sub aided and abetted the individual AirTran defendants in the breach of their fiduciary duties to AirTran's stockholders. The Leonelli complaint seeks 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 individual AirTran defendants 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 plaintiff's 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. On the same day, Frank Frohman filed a second purported AirTran shareholder class action lawsuit in the same court and against the same defendants (other than Mr. Haak) as the Leonelli complaint. The allegations in the Frohman complaint, as well as the relief requested, are generally the same as those set forth in the Leonelli complaint. The Frohman complaint was consolidated into the Leonelli complaint on December 9, 2010. On December 14, 2010, plaintiffs filed a consolidated complaint asserting the same claims and requesting the same relief against the same defendants. The Leonelli consolidated complaint also included new allegations, as part of its breach of fiduciary duty claim, that the individual AirTran defendants caused the Company to file a Form S-4 Registration Statement with the SEC on November 19, 2010 which omitted or misrepresented material information regarding the merger. AirTran and the individual AirTran defendants filed a motion to dismiss the Leonelli consolidated complaint on January 7, 2011, which was joined by the Company and Merger Sub on the same day. SOUTHWEST AIRLINES: Motion to Dismiss "Church" Suit Pending ----------------------------------------------------------- Southwest Airlines Co. continues to defend itself against a class action lawsuit filed by Douglas Church in connection with its planned acquisition of AirTran Holdings, Inc., according to the company's Feb. 7, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2010. On October 8, 2010, Douglas Church filed another purported AirTran shareholder class action lawsuit in the Eighth Judicial District Court of the State of Nevada for Clark County against AirTran, Robert L. Fornaro, AirTran's Chairman, President and Chief Executive Officer, each member of the AirTran board of directors, the Company, and Guadalupe Holdings Corp. as Merger Sub. The complaint generally alleges that the consideration to be received by AirTran's stockholders in the merger is unfair and inadequate and that the AirTran officers and directors named as defendants breached their fiduciary duties by approving the merger agreement through an unfair and flawed process and by approving certain deal protection mechanisms contained in the merger agreement. The complaint further alleges that AirTran, the Company, and Merger Sub aided and abetted the individual AirTran defendants in the breach of their fiduciary duties to AirTran's stockholders. The complaint seeks 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 individual AirTran defendants 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 plaintiff's 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 Church complaint additionally alleged, as part of its breach of fiduciary duty claim, that the individual AirTran defendants received greater benefits under the merger agreement than other AirTran stockholders. Mr. Church voluntarily dismissed his lawsuit on November 30, 2010, but on December 2, 2010, he re-filed a new lawsuit against the same defendants in the United States District Court for the District of Nevada. The Church federal complaint makes the same claims and seeks the same relief as his original lawsuit, but includes new claims for alleged violations of Sections 14 and 20 of the Securities Exchange Act of 1934 for allegedly providing misleading and incomplete information in the Form S-4 Registration Statement filed with the SEC on November 19, 2010. Specifically, the Church federal complaint alleges that the disclosures contained in the Form S-4 Registration Statement omit or misrepresent material information regarding the process of approving the merger agreement, the merger consideration, and the intrinsic value of AirTran. AirTran and the individual AirTran defendants filed a motion to dismiss the Church federal complaint on December 22, 2010. On January 18, 2011, William Nesbit filed another purported AirTran shareholder class action lawsuit again in the United States District Court for the District of Nevada against the same defendants. The allegations and claims set forth in the Nesbit lawsuit, as well as the relief requested, were generally the same as those set forth in the Church federal complaint. SOUTHWEST AIRLINES: Defends Consolidated Lawsuit in Florida ----------------------------------------------------------- Southwest Airlines Co. continues to defend itself against a consolidated lawsuit in Florida, according to the Company's Feb. 8, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2010. On Sept. 26, 2010, Southwest, AirTran, and Guadalupe Holdings Corp. -- Merger Sub -- entered into an Agreement and Plan of Merger, providing for the acquisition of AirTran by Southwest. Four purported AirTran shareholder class action lawsuits have been filed in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida. Harry Hoffner filed a purported class action lawsuit on September 30, 2010, against AirTran, Robert L. Fornaro, AirTran's Chairman, President and Chief Executive Officer, each member of the AirTran board of directors, and the Company. This was followed by lawsuits filed by Robert Debardelan on October 8, 2010, Thomas A. Rosenberger on October 12, 2010, and Robert Loretitsch on October 15, 2010 against the same defendants plus Merger Sub. The complaints generally allege that the consideration to be received by AirTran's stockholders in the merger is unfair and inadequate and that the AirTran officers and directors named as defendants breached their fiduciary duties by approving the merger agreement through an unfair and flawed process and by approving certain deal protection mechanisms contained in the merger agreement. The complaints further allege that AirTran, the Company, and Merger Sub aided and abetted the individual AirTran defendants in the breach of their fiduciary duties to AirTran's stockholders. The complaints 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 individual AirTran defendants 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 plaintiff's 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. On November 15, 2010, these actions were consolidated into one action styled In re AirTran Shareholder Litigation. On December 2, 2010, the consolidated Florida action was stayed in its entirety pending resolution of the earlier filed Leonelli complaint. STERIS CORP: Records $19.8MM Pre-Tax Charge on Suit Settlement -------------------------------------------------------------- During the third quarter of fiscal 2011, Steris Corporation recorded a pre-tax operating expense charge of $19.8 million ($13.1 million or $0.22 per diluted share after tax) for the settlement of a SYSTEM 1(R) class action litigation, according to the Company's Feb. 8, 2011 Form 8-K filing with the U.S. Securities and Exchange Commission. This settlement is subject to, among other things, certification of the class and approval of the settlement by the court. On February 5, 2010, a complaint was filed by a Customer who claims to have purchased two SYSTEM 1 devices from STERIS, Physicians of Winter Haven LLC d/b/a Day Surgery Center v. Steris Corp., Case No. 1:1-cv-00264-CAB (N.D. Ohio). The complaint alleges statutory violations, breaches of various warranties, negligence, failure to warn, and unjust enrichment. Plaintiff seeks class certification, damages, and other legal and equitable relief including, without limitation, attorneys' fees and an order requiring STERIS to replace, recall or adequately repair the product and/or to take appropriate regulatory action. SYNOVUS FINANCIAL: Accused of Defrauding Seven Falls Investors -------------------------------------------------------------- Iulia Filip at Courthouse News Service reports that a class action claims a bank and a developer defrauded buyers who invested more than $50 million in a private mountain subdivision that was never built. Investors say the National Bank of South Carolina and developer Keith Vinson rerouted the money pledged for the Seven Falls golf club community to boost the value of the bank stock and for personal trips for bank executives. Several families and an investment LLC sued Synovus Financial Corp. dba National Bank of South Carolina and Keith Vinson, whose 20 defendant LLCs and two defendant corporations were created to develop Seven Falls, according to the complaint. According to the 28-page complaint in Muscogee County Court, Synovus and Mr. Vinson used aggressive marketing campaigns from 2006 to 2008 to attract investors to Seven Falls, a community and golf club to be built in Henderson County, N.C. The 1,600-acre subdivision undeveloped land "was represented to include hard surface roads, electric service, and telephone lines to each lot; an Arnold Palmer signature 18 hole golf course," and many other amenities, according to the complaint. But the plaintiffs say that Synovus and Mr. Vinson did not build any roads, nor did they install electric service or other utilities or build the golf course or other amenities they had advertised. "Millions of dollars has [sic] been wasted or misappropriated," and "the Seven Falls Development is at a virtual standstill," according to the complaint. "Plaintiffs cannot even drive a vehicle to their property, much less apply for construction permits to build a home." And, the class claims, the value of the lots at Seven Falls is grossly below the value advertised. The class claims that the bank and Mr. Vinson's companies developed an elaborate marketing plan, which succeeded in attracting more than $50 million in residential lot sales. In May 2007, the bank and Mr. Vinson hosted an event at the Biltmore Estate in Buncombe County, N.C., for the initial lot owners. The event featured free food, beverages and entertainment, "which included live music, ice carvings, and an appearance by golf legend Arnold Palmer, who flew into the party by helicopter," according to the complaint. After this reassuring extravaganza, the bank and Mr. Vinson continued to promote Seven Falls as an investor's and homeowner's paradise, the plaintiffs say. In June 2007, they hosted the Grand Opening of Seven Falls, followed by a private concert for Seven Falls lot owners, featuring The Blues Brothers. The Grand Opening of the Arnold Palmer Golf Academy at Seven Falls in June 2008 promoted sales of exclusive villas in the Seven Falls subdivision. That event featured an appearance by Arnold Palmer followed by a private concert featuring Kenny G. Mr. Palmer is not a party to this complaint. Mr. Vinson also produced a series of DVDs for the lot owners. "These DVDs conveyed the message that no expense would be spared in the development of Seven Falls," the class claims, adding, "these extravagant marketing tactics were used by NBSC and the developer to persuade consumers into believing Seven Falls was fully funded by NBSC and financially stable." While aggressively advertising Seven Falls, Mr. Vinson promoted NBSC as the preferred lender for the development, the class claims. It claims that the bank loaned the developer more than $90 million and shared ownership of bank accounts with Vinson's companies. The class claims the defendants created "a misperception of the value of the lots at Seven Falls by falsely representing to plaintiffs that the purchase price of a lot at Seven Falls was significantly below market value and that plaintiffs would have instant equity in their lots upon closing." They claim the bank solicited and accepted grossly inflated appraisals, which valued the lots as though the development of the subdivision were complete. They claim that to induce investors to buy lots, NBSC used aggressive lending practices and failed to comply with its own regulations. The bank offered lending packages that required no down payment for a lot or a golf membership; sometimes promised to cover 100% of the interest on the lot for the first two years and offered cash to buyers at closing, according to the complaint. "Bank officials employed by NBSC were encouraged by NBSC to issue loans to purchasers of lots at Seven Falls" the complaint states. "Some of these employees were rewarded for such efforts by receiving all expenses paid trips to the Caribbean." After the sale of each lot, NBSC funded a "deposit account" to cover interest payments for two years in the name of each investor; the bank reported the interest payments as income to increase the price of Synovus stock, according to the complaint. In October 2008, NBSC applied for government benefits under the Troubled Asset Relief Program, the class claims. To qualify for TARP funds, NBSC canceled $63 million of the funds pledged to Seven Falls and prematurely declared a loss on the development -- all while NBSC and the developer were seeking new buyers for the Seven Falls lots, according to the complaint. The class claims NBSC received $960 million from the federal government, none of which was applied toward the Seven Falls development. Despite its promises, rather than investing in Seven Falls, the "developer has used plaintiffs' money for his own personal gain and for the entertainment of NBSC executives," the complaint states. The class claims that in February 2008 the developer took NSBC officers on a ski trip to Beaver Creek, Colo., on a private Gulfstream jet. The developer then flew the bank officers to Phoenix to watch Super Bowl XLII, and paid for their rooms, according to the complaint. "Developer purchased this Gulfstream jet approximately 26 days after NBSC transferred Developer twenty million dollars intended for the development of Seven Falls", the class claims. The plaintiffs claims NBSC failed to oversee the construction project at Seven Falls or to monitor its progress before approving new draws requested by the developer. The bank officers approved every construction draw because they wanted to continue to enjoy the benefits provided by the developer, according to the complaint. To top it off, the class claims, NBSC initiated legal action against several investors, including some of the plaintiffs. The class claims the bank foreclosed on lots at Seven Falls, and reported negative information about the plaintiffs to credit reporting agencies. The class seeks an injunction to stay foreclosure proceedings and to prevent NBSC from reporting negative information to credit agencies. They also seek punitive damages for fraudulent misrepresentation, conspiracy, negligent misrepresentation, breach of contract, deceptive trade, slander of credit, breach of fiduciary duty, and other charges. A copy of the Complaint in Shanahan, et al. v. Synovus Financial Corp. d/b/a National Bank of South Carolina, et al., Case No. 11CV29-94 (Ga. Super. Ct., Muscogee Cty.), is available at: http://www.courthousenews.com/2011/02/09/GaBank.pdf The Plaintiffs are represented by: T. Ryan Langley, Esq. HODGE & LANGLEY LAW FIRM, P.A. P.O. Box 2765 Spartanburg, SC 29304 TACO BELL: Turns Class Action Into Facebook Marketing Campaign -------------------------------------------------------------- Christopher Heine, writing for ClickZ, reports Taco Bell has turned a class action lawsuit about the beef in its food into a Facebook marketing campaign. The restaurant chain is giving away 10 million free beef tacos to Facebook "likers" who download and print a coupon. The company pitched the offer to its 5.4 million Facebook "likes" on Feb. 8, and has since picked up around 100,000 additional "likes." Taco Bell is employing a like-gating strategy that's being increasingly leveraged by marketers. If 10 million coupons are downloaded, the brand will announce the offer has reached its limit capacity with a message on its Facebook wall. Consumers have until Feb. 15 to use the coupons. The Irvine, CA-based firm is running Facebook.com ads to drive more "likes" and coupon downloads. The ad features an image of the brand's hot sauce packet emblazoned with the Facebook-oriented language, "Thumbs up to you, Friend!" Below it appears the copy: "Thanks so much for your support! What's not to 'Like' about a free taco?" The development is part of a larger PR campaign that attempts to refute an Alabama class action lawsuit that claims Taco Bell's seasoned beef is only 35% actual beef. Taco Bell CEO Greg Creed commented on the Facebook campaign in a prepared statement: "Throughout the beef class action lawsuit, the response and enthusiasm from our Facebook community has been overwhelmingly positive. We found it only fitting to reward these 5.4 million fans and a friend with a free taco. It's our way of saying thanks for their loyalty and support." TELENAV INC: Court Appoints David Smith as Lead Plaintiff --------------------------------------------------------- Telenav, Inc., continues to defend itself from a class action lawsuit filed by David Smith, one of its stockholders, in California, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. On September 2, 2010, a purported stockholder class action lawsuit was filed by David Smith in the United States District Court for the Northern District of California (Case No. 3:10-CV-03942-SC) against the Company, certain of its officers and directors, and certain of the Company's underwriters for its May 13, 2010 initial public offering. The complaint purports to be brought on behalf of all persons who acquired shares of the Company's common stock pursuant to its May 13, 2010 initial public offering, traceable to the Company's Form S-1/A Registration Statement and Prospectus filed with the SEC on May 13, 2010. The complaint alleges that the Company, certain of its officers and directors, and certain of its underwriters for the initial public offering violated the Securities Act of 1933, as amended, or the Securities Act, by issuing the Registration Statement and Prospectus, which the plaintiff alleges contained material misstatements and omissions in violation of Sections 11 and 15 of the Securities Act. Specifically, the complaint alleges that the Company failed to disclose in its May 13, 2010 Registration Statement and Prospectus that it would soon be renegotiating the Company's current contract with Sprint, the Company's largest customer, which would result in its revenue being reduced. The complaint seeks class certification, compensatory damages, attorneys' fees and costs, rescission or a rescissory measure of damages, equitable and/or injunctive relief, and such other relief as the court may deem proper. David Smith and his attorneys have filed a motion for appointment as lead plaintiff and lead counsel, which the Company has not opposed. On February 3, 2011, the Court granted plaintiff's motion for appointment as lead plaintiff and selection of Robbins Geller Rudman & Dowd as lead counsel. The parties will meet and confer regarding a proposed briefing schedule. The Company denies the plaintiff's allegations and believe that its defenses to this action have merit. The Company intends to vigorously defend against this action and file a motion to dismiss the complaint. Due to the preliminary status of the lawsuit and uncertainties related to litigation, the Company is unable to evaluate the likelihood of either a favorable or unfavorable outcome. The Company cannot currently estimate a range of any possible losses it may experience in connection with this case. Accordingly, the Company is unable at this time to estimate the effects of this lawsuit on its financial condition, results of operations or cash flows. TERREMARK WORLDWIDE: Defends Four Lawsuits Related to Verizon Deal ------------------------------------------------------------------ Terremark Worldwide, Inc., is defending itself from four class action lawsuits filed by shareholders who are against a merger agreement the Company entered into with Verizon Communications, Inc., according to the Company's Feb. 7, 2011, Form 10-Q filed with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. On January 27, 2011, the Company entered into an Agreement and Plan of Merger with Verizon Communications, Inc., and its wholly-owned subsidiary Verizon Holdings Inc. If the company terminates the Merger Agreement in certain circumstances related to the Company's execution of a definitive agreement in respect of a superior proposal, the Company must pay Verizon a termination fee equal to $52.5 million, unless the Company terminates the Merger Agreement on or prior to February 26, 2011, in which case the termination fee payable would be $37.5 million. Four putative class action lawsuits have been filed in connection with the Offer and the Merger: (i) Norbert Schaefer v. Terremark Worldwide, Inc., et. al. (Case No. 11-03279-CA-32), filed on January 31, 2011, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida; (ii) Eileen Stackewicz v. Terremark Worldwide, Inc., et al. (Case No. 11- 03106-CA-40), filed on February 1, 2011, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida; (iii) Michael Jiannaras v. Terremark Worldwide, Inc., et al. (Case No. 11-03471-CA-40), filed on February 2, 2011, in the Circuit Court of the Eleventh Judicial Circuit in and for Miami- Dade County, Florida; and (iv) Thom Hogan v. Terremark Worldwide, Inc., et al. (Case No. 1:11-cv-2036), filed on February 2, 2011 in the United States District Court, Southern District of Florida, Miami Division. All four suits name the Company, the members of the board of directors, Parent and Purchaser as defendants. All four lawsuits are brought by purported holders of the Company's common stock, both individually and on behalf of a putative class of the Company's stockholders, alleging that the Company's board of directors breached its fiduciary duties in connection with the Offer and the Merger by purportedly failing to maximize stockholder value, and that the Company, Parent, and Purchaser aided and abetted the alleged breaches. All four lawsuits seek equitable relief, including, among other things, to enjoin consummation of the Offer and the Merger, rescission of the Merger Agreement and an award of all costs, including reasonable attorneys' fees. The Hogan complaint additionally seeks compensatory and/or recissory damages. The Company believes that these lawsuits are without merit and intends to vigorously defend against them; however, there can be no assurance that the Company will be successful in its defense. Due to the preliminary nature of all four suits, the Company is unable at this time to estimate their outcome. TOWERS WATSON: Still Defends "Watson Wyatt" Merger-Related Suit --------------------------------------------------------------- Towers Watson & Co. is still defending itself from a consolidated action in the U.S. District Court for the Eastern District of Pennsylvania related to a merger agreement, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the fiscal year ended Dec. 31, 2010. On Jan. 1, 2010, pursuant to an Agreement and Plan of Merger, as amended by Amendment No. 1, Watson Wyatt Worldwide, Inc., and Towers, Perrin, Forster & Crosby, Inc., combined their businesses through two simultaneous mergers and became wholly-owned subsidiaries of Jupiter Saturn Holding Company, which subsequently changed its name to Towers Watson & Co. Since the consummation of the Merger, Towers Perrin changed its name to Towers Watson Pennsylvania Inc.; and Watson Wyatt changed its name to Towers Watson Delaware Holdings Inc. On December 9, 2009, Watson Wyatt was informed by Towers Perrin of a settlement demand from the plaintiffs in a putative class action lawsuit filed by certain former shareholders of Towers Perrin. Although the complaint in the Dugan Action does not contain a quantification of the damages sought, plaintiffs' settlement demand, which was orally communicated to Towers Perrin on December 8, 2009 and in writing on December 9, 2009, sought a payment of $800 million to settle the action on behalf of the proposed class. Plaintiffs requested that Towers Perrin communicate the settlement demand to Watson Wyatt. The Dugan Action previously was reported in Amendment No. 3 to the Registration Statement on Form S-4/A (File No. 333-161705) filed on November 9, 2009 by the Jupiter Saturn Holding Company. As reported in the Registration Statement, the complaint was filed on November 5, 2009 against Towers Perrin, members of its board of directors, and certain members of senior management in the United States District Court for the Eastern District of Pennsylvania. Plaintiffs in this action are former members of Towers Perrin's senior management, who left Towers Perrin at various times between 1995 and 2000. The Dugan plaintiffs seek to represent a class of former Towers Perrin shareholders who separated from service on or after January 1, 1971, and who also meet certain other specified criteria. On December 17, 2009, four other former Towers Perrin shareholders, all of whom voluntarily left Towers Perrin in May or June 2005 and all of whom are excluded from the proposed class in the Dugan Action, commenced a separate legal proceeding in the United States District Court for the Eastern District of Pennsylvania alleging the same claims in substantially the same form as those alleged in the Dugan Action. These plaintiffs are proceeding in their individual capacities and do not seek to represent a proposed class. On January 15, 2010, another former Towers Perrin shareholder who separated from service with Towers Perrin in March 2005 when Towers Perrin and EDS launched a joint venture that led to the creation of a corporate entity known as ExcellerateHRO, commenced a separate legal proceeding in the United States District Court of the Eastern District of Pennsylvania also alleging the same claims in substantially the same form as those alleged in the Dugan Action. Towers Perrin contributed its Towers Perrin Administrative Solutions business to eHRO and formerly was a minority shareholder (15%) of eHRO. Pao seeks to represent a class of former Towers Perrin shareholders who separated from service in connection with Towers Perrin's contribution to eHRO of its TPAS business and who are excluded from the proposed class in the Dugan Action. Towers Watson is also named as a defendant in the Pao Action. Pursuant to the Towers Perrin Bylaws in effect at the time of their separations, the Towers Perrin shares held by each of these plaintiffs were redeemed by Towers Perrin at book value at the time these individuals separated from employment. The complaints allege variously that there either was a promise that Towers Perrin would remain privately owned in perpetuity (Dugan Action) or that in the event of a change to public ownership plaintiffs would receive compensation (Allen and Pao Actions). Plaintiffs allege that by agreeing to sell their shares back to Towers Perrin at book value upon retirement, they and other members of the putative classes relied upon these alleged promises, which they claim were breached as a result of the consummation of the Merger between Watson Wyatt and Towers Perrin. The complaints assert claims for breach of contract, breach of express trust, breach of fiduciary duty, promissory estoppel, quasi-contract/unjust enrichment, and constructive trust, and seek equitable relief including an accounting, disgorgement, rescission and/or restitution, and the imposition of a constructive trust. On January 20, 2010, the court consolidated the three actions for all purposes. On February 22, 2010, defendants filed a motion to dismiss the complaints in their entireties. By order dated September 30, 2010, the court granted the motion to dismiss plaintiffs' claim for a constructive trust and denied the motion with respect to all other claims alleged. Pursuant to the court's September 30 order, defendants also filed answers to plaintiffs' complaints on October 22, 2010. The parties are currently engaged in fact discovery. Towers Watson continues to believe the claims in these lawsuits are without merit and intends to defend against them vigorously. However, the cost of defending against the claims could be substantial and the outcome of these legal proceedings is inherently uncertain and could be unfavorable to Towers Watson. WARNER MUSIC: Digital Music Download Lawsuit Back in Trial Court ---------------------------------------------------------------- Warner Music Group Corp. continues to defend itself from a consolidated class action lawsuit related to downloadable digital music prices after the Supreme Court rejected a petition for certiorari filed by the defendants, according to the Company's Feb. 8, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended Dec. 31, 2010. On December 20, 2005 and February 3, 2006, the Attorney General of the State of New York served the Company with requests for information in connection with an industry-wide investigation as to whether the practices of industry participants concerning the pricing of digital music downloads violate Section 1 of the Sherman Act, New York State General Business Law Sections 340 et seq., New York Executive Law Section 63(12), and related statutes. On February 28, 2006, the Antitrust Division of the U.S. Department of Justice served the Company with a request for information in the form of a Civil Investigative Demand as to whether its activities relating to the pricing of digitally downloaded music violate Section 1 of the Sherman Act. Both investigations have now been closed. Subsequent to the announcements of the above governmental investigations, more than thirty putative class action lawsuits concerning the pricing of digital music downloads were filed and were later consolidated for pre-trial proceedings in the Southern District of New York. The consolidated amended complaint, filed on April 13, 2007, alleges conspiracy among record companies to delay the release of their content for digital distribution, inflate their pricing of CDs and fix prices for digital downloads. The complaint seeks unspecified compensatory, statutory and treble damages. All defendants, including the Company, filed a motion to dismiss the consolidated amended complaint on July 30, 2007. On October 9, 2008, the District Court issued an order dismissing the case as to all defendants, including the Company. On November 20, 2008, plaintiffs filed a Notice of Appeal from the order of the District Court to the Circuit Court for the Second Circuit. Oral argument took place before the Second Circuit Court of Appeals on September 21, 2009. On January 12, 2010, the Second Circuit vacated the judgment of the District Court and remanded the case for further proceedings. On January 27, 2010, all defendants, including the Company, filed a petition for rehearing en banc with the Second Circuit. On March 26, 2010, the Second Circuit denied the petition for rehearing en banc. On August 20, 2010, all defendants including the Company, filed a petition for Certiorari before the Supreme Court. The petition was rejected on January 10, 2011. The case will now return to the trial court. The Company intends to defend against these lawsuits vigorously, but is unable to predict the outcome of these suits. Any litigation the Company may become involved in as a result of the inquiries of the Attorney General and Department of Justice, regardless of the merits of the claim, could be costly and divert the time and resources of management. WORLEY CATASTROPHE: Sued Over Non-Payment of Overtime Wages ----------------------------------------------------------- Sabrina Canfield at Courthouse News Service reports that a class of more than 1,000 oil spill claims adjusters say they worked more than 40 hours a week without overtime pay for BP and Worley Catastrophe Response. Lead plaintiff John Altier sued on behalf of an estimated class of 1,300, who were hired to research and pay claims to victims of the Deepwater Horizon oil spill disaster. Mr. Altier says that he and the class "were paid at a daily rate of pay. Plaintiff, and all other similarly situated claims adjusters were specifically paid the daily rate of pay for a 12-hour day. Based on that rate of pay, the plaintiff's hourly wage was $68.75 per hour." He says that he and the class "worked significantly more than 40 hours in most workweeks." He adds that they were not supervisors nor administrators, were not paid "on a salary basis," and were not exempt from overtime rules under the Fair Labor Standards Act. However, he says, "defendants never paid plaintiff, or any other similarly situated claims adjusters any overtime, at time-and-a- half their regular rate of pay." He adds that they knowingly and intentionally failed to pay plaintiff, and all other similarly situated claims adjusters' overtime." Mr. Altier says he complained on several occasions to management about not being paid for the overtime he worked," but "despite repeated requests by plaintiff to be for the overtime hours management refused to pay him." He says they fired him on Sept. 25. In a second class action, Mr. Altier sued Worley Catastrophe Response, but not BP, demanding more than $50 million. In this complaint, Mr. Altier claims Worley "misappropriated tens of millions of dollars" from the class by "systematically and fraudulently breaching contracts." This complaint alleges the Worley promised the claims adjusters 65% of the profits per day, but shorted them by 17%. The second class action says that "by express written agreement, plaintiff and all others were to have received 65% of the amount defendant received related to daily services being provided by each adjuster. Defendant failed to and refused to pay the proper percentage of the $1,200 - $1,300 per day it was receiving, instead only paying out $550 per day, or just 48%." The complaint continues: "Defendant intentionally and fraudulently breach[ed] said contracts by knowingly failing to properly pay unto plaintiffs the proper percentage under the contract, instead paying plaintiff and others similarly situated only $550 per day." Mr. Altier claims the class has "suffered damages of between $230 and $295 for each day they performed services under said contract, and the defendant was unjustly enriched, being between $53,000,000 and $69,030,000." A copy of the Complaint in Altier v. Worley Catastrophe Response LLC, et al., Case No. 11-cv-00241 (E.D. La.), is available at: http://www.courthousenews.com/2011/02/09/BPAdjust.pdf The Plaintiff is represented by: J.P. Hughes, Jr., Esq. HUGHES BROWN, PLLC 1300 Access Road, Suite 100 Oxford, MS 38655 Telephone: (662) 234-6080 * HF211 Bill Aims to Curtail Consumer Fraud Class Actions --------------------------------------------------------- Lee Ann Schutz, writing for Session Daily, reports that, the premise behind HF211, sponsored by Rep. Doug Wardlow (R-Eagan), is that "our litigious culture, combined with zealous attorneys, has put businesses at a disadvantage." He told the House Civil Law Committee that his bill is not only about tort reform and reining in class action lawsuits, but "it's about jobs and economic development." Many times these cases are without merit, but he said that businesses are left in limbo when a class action suit is filed, waiting to know if the courts are even going to take up the case. "Businesses choose to settle rather than face unknown risks of a trial and perhaps crippling financial loses," he said. The bill, approved and sent to the House Judiciary Policy and Finance Committee, would require a consumer to show real out-of- pocket damages, and that actions were deceptive, false or misleading in violation of certain consumer fraud, deceptive trade practice or false advertising laws. It would also make appealable a court order regarding the future of a class action lawsuit. While an appeal is pending, all previous court actions on the suit would be halted. Ten states have enacted this type of legislation. "Minnesota should not be left behind and become a haven for lawsuits. This protects Minnesota's business climate," Mr. Wardlow said. While the bill is supported by many state business groups, there may be unintended consequences for the consumer, said Prentiss Cox, a professor at the University of Minnesota Law School. "If you do this, class actions will be severely curtailed and it will be almost impossible to bring a class action under the statutory fraud laws," he said. As an example, he pointed to the recent mortgage fraud. Had there been an out-of-pocket damage rule, cases against these companies wouldn't have gone forward because the kind of harm would have been difficult to quantify. Its companion, SF149, sponsored by Sen. Julianne Ortman (R-Chanhassen), awaits action by the Senate Judiciary and Public Safety Committee. ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Leah Felisilda, Neil U. Lim, Rousel Elaine Fernandez, Joy A. Agravante, Ronald Sy, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2011. All rights reserved. ISSN 1525-2272. This material is copyrighted and any commercial use, resale or publication in any form (including e-mail forwarding, electronic re-mailing and photocopying) is strictly prohibited without prior written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. 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