/raid1/www/Hosts/bankrupt/CAR_Public/110810.mbx
C L A S S A C T I O N R E P O R T E R
Wednesday, August 10, 2011, Vol. 13, No. 157
Headlines
AGL RESOURCES: Unit Still Defends Gas Pricing Suit in Georgia
AGL RESOURCES: To Submit Deal in Merger-Related Suits Soon
ALLIANT LAW: Class Action Settlement Gets Preliminary Okay
ALLIED HEALTHCARE: Sued Over Proposed Sale to Saga Group
AMBAC FINANCIAL: Sept. 28 Class Action Settlement Hearing Set
AMERICAN CAPITAL: 'Klugmann' Class Suit Still Pending in Maryland
AMERICAN EXPRESS: Issuance of Mandate to Remand Class Suit Stayed
AMERICAN EXPRESS: Motion for Arbitration in "Meeks" Suit Pending
AMERICAN EXPRESS: Continues to Defend Anti-Steering Suits in N.Y.
AMERICAN EXPRESS: Argument on Appeal From Dismissal Set for August
AMERICAN EXPRESS: Discussing Proposed Settlement of "Kaufman" Suit
AMERICAN EXPRESS: Court Sets May 7, 2012 Trial Date in "Ross" Suit
AMERICAN EXPRESS: "Lopez" Suit Still Stayed in California
AMERICAN EXPRESS: Renewed Arbitration Plea in "Homa" Suit Pending
AMERICAN EXPRESS: Motion to Bring Class Suit Pending in Canada
AMERICAN INT'L: Judge Okays $450-Mil. Class Action Settlement
AMERICAN SOCIETY: Sued Over Alleged Egg Donation Price-Fixing
ARTHROCARE CORP: Still Defends Consolidated Securities Suit
BANK OF AMERICA: Sued Over Unauthorized Privacy Source Charges
BIG 5: Paid $1.2MM in 2nd Quarter Under "Weyl" Suit Settlement
BIG 5: Obtains Final Approval of Settlement in "Kelly" Suit
BIG 5: Continues to Defend Nine Suits Over Credit Card Purchases
BJ'S RESTAURANTS: Discovery Ongoing in Suit Over On-Call Time
BJ'S RESTAURANTS: Reaches Deal to Settle Misclassification Suit
BOIRON USA: Faces Class Action Over False Claims on Oscillo
CAL-MAINE FOODS: Continues to Defend Antitrust Class Suits
CAREER EDUCATION: "Amador" Suit Settlement Hearing Set for Aug. 22
CAREER EDUCATION: Discovery in TCPA-Violations Suits Ongoing
CAREER EDUCATION: Hearing on Arbitration Plea Set for Sept. 30
CAREER EDUCATION: "Lilley" Suit Proceedings Still Stayed
CAREER EDUCATION: To Execute Settlement Agreement in "Kelly" Suit
CAREER EDUCATION: "Surrett" Parties Still Engaged in Discovery
CENDANT CORP: Continues to Defend "Frank Cooper" Class Suit
CLEAR CHANNEL: Expert Discovery in "Live Concerts" Suits Ongoing
CLECO POWER: Continues to Defend Customer Class Suits in Louisiana
COMCAST CORP: Class Certification Appeal Remains Pending
COMCAST CORP: Petition for Rehearing Pending in "Unbundling" Suits
COMCAST CORP: Moves to Compel Arbitration in Consolidated Suit
DENDREON CORP: Hagens Berman Files Securities Class Action
DINEEQUITY INC: Files Stay Request Pending Petition for Rehearing
DIRECT BRANDS: Sued in Calif. Over Deceptive Business Practices
DPL INC: Enters Into Deal to Settle Consolidated Federal Action
DUN & BRADSTREET: One Appeal From IPO Settlement Still Pending
E.I. DUPONT: Mulls Recall of Imprelis Herbicide Amid Suits
ECOLAB INC: Nalco Merger Prompts Filing of Class Suit in Illinois
ELECTRONIC ARTS: Sued in N.J. Over Virtual Golfing Video Game
EMDEON INC: Weiss & Lurie Files Securities Class Action
EXCO RESOURCES: Class Suit Remains Pending in Texas State Court
FARMERS INSURANCE: Settles Med-Pay Class Action in Oklahoma
FMC CORP: Still Defends Hydrogen Peroxide-Related Suits in Canada
FPIC INSURANCE: Faces Suit Over Proposed Merger With TDC
FRESH DEL MONTE: Appeal in Hawaiian Suit Remains Pending
FRESH DEL MONTE: Still Defends Extra Sweet Pineapple Litigation
KINDER MORGAN: Going Private Class Suits Settlement Now Final
LOEWS CORP: Fairness Hearing in Antitrust Suit Set for September
MASTERCARD INC: Appeals Still Pending in New Mexico & California
MASTERCARD INC: Continues to Defend Interchange Litigation
MASTERCARD INC: Continues to Defend Price-Fixing Suits in Canada
MATCH.COM LLC: Sued in N.Y. Over Deceptive Business Practices
MF GLOBAL: Dismissed Cases Vs. Subsidiary Still Subject to Appeal
MF GLOBAL: Motion to Dismiss Moore Capital Suit Remains Pending
MOODY'S CORP: 2nd Cir. Refuses to Give Plaintiffs Leave to Appeal
NALCO HOLDING: Defends Class Suit Over Ecolab Merger
NALCO HOLDING: Continues to Defend Class Suits Over COREXIT Use
NICOR INC: Court Dismisses "Lock 12 Plan" Class Action
NICOR INC: To Enter Into Stipulation Following MOU in Class Suits
NL INDUSTRIES: Continues to Defend Suits Over Lead-Based Paints
NORTHERN ILLINOIS: Defends Appliance Warranty Suits in Illinois
NORTHWEST AIRLINES: Rabbi Can Pursue Class Action, 9th Cir. Says
OHIO EDUCATION ASSOC: Teachers Sue Over Compulsory Union Fees
OMEGA FLEX: Continues to Pursue Reimbursement of Class Suit Fees
PANERA BREAD: Obtains Final Court Okay of Class Suit Settlement
PANERA BREAD: "Sotoudeh" Class Suit Still Pending in California
PANERA BREAD: Still Defends Employee Class Suit in Florida
PANERA BREAD: Still Defends "Ortiz" Class Suit in Virginia
PETROHAWK ENERGY: Faces Suits Over Proposed BHP Billiton Merger
PHI INC: 3rd Circuit Appeal in Delaware Class Suit Pending
PRINCIPAL FINANCIAL: Appeal From Certification Denial Pending
PRINCIPAL FINANCIAL: Continues to Defend Cruise & Mullaney Suit
ROYAL CARIBBEAN: Accounting Error Prompts Class Action
SAIA INC: Hearing on Dock Workers' Suit Settlement Set for Aug. 20
SAIA INC: Continues to Defend Wage Suit Filed by Ex-Line Driver
SECURITIES AMERICA: Judge Approves Class Action Settlement
SEI INVESTMENTS: Subsidiary Continues to Defend 'ETF' Class Suits
SEI INVESTMENTS: Class Certification Hearing Set for Oct. 4-6
SOLTA MEDICAL: Aesthera Continues to Defend Suit Over "Faxed Ads"
STEC INC: Court Refuses to Dismiss Exchange Act Claims
STEVEN J. BAUM: Sued Over Unfair Debt Collection Practices
STREAM GLOBAL: Final Approval of Sirius Settlement Still Pending
SUPERMEDIA INC: Continues to Defend Securities Suits Vs. Officers
SUPERMEDIA INC: Continues to Defend "Bell" Retirees Class Suit
SUPERMEDIA INC: Awaits Ruling on 2nd Motion to Dismiss Class Suit
TRANSOCEAN LTD: Securities Suits in New York Remain Pending
UNUM GROUP: Subsidiary Continues to Defend Class Suit in Maine
WEBMD HEALTH: Five Law Firms File Class Action
WELLCARE HEALTH: Appeal Delays Issuance of $112.5 Million Notes
WELLS FARGO: Wants Judge to Resolve Class Contradictions
WYETH CANADA: B.C. Supreme Court Certifies HRT Class Action
*********
AGL RESOURCES: Unit Still Defends Gas Pricing Suit in Georgia
-------------------------------------------------------------
AGL Resources Inc.'s subsidiary continues to defend itself against
a lawsuit over gas prices in Georgia, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
The Company's non-wholly owned subsidiary, SouthStar Energy
Services LLC, markets natural gas and related services under the
trade name Georgia Natural Gas to retail customers in Georgia.
In February 2008, a class action lawsuit was filed in the Superior
Court of Fulton County in the State of Georgia against Georgia
Natural Gas alleging that it charged its customers on variable
rate plan prices for natural gas that were in excess of the
published price, failed to give proper notice regarding the
availability of potentially lower price plans and that it changed
its methodology for computing variable rates. This lawsuit was
dismissed in September 2008. The plaintiffs appealed the
dismissal of the lawsuit and, in May 2009, the Georgia Court of
Appeals reversed the lower court's order. In June 2009, Georgia
Natural Gas filed a petition for reconsideration with the Georgia
Supreme Court. In October 2009, the Georgia Supreme Court agreed
to review the Court of Appeals' decision and held oral arguments
in January 2010. In March 2010 the Georgia Supreme Court upheld
the Court of Appeals' decision. The case has been remanded back
to the Superior Court of Fulton County for further proceedings.
Georgia Natural Gas asserts that no violation of law or Georgia
Commission rules has occurred. This case has not had, and is not
expected to have, a material impact on the Company's results of
operation or financial condition.
No further updates were reported in the Company's latest SEC
filing.
AGL RESOURCES: To Submit Deal in Merger-Related Suits Soon
----------------------------------------------------------
Parties to several class action lawsuits over AGL Resources Inc.'s
proposed merger with Nicor Inc. will submit their settlement
agreement for court approval soon, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On December 6, 2010, the Company entered into an Agreement and
Plan of Merger with Nicor Inc., which the Company anticipates
completing during the second half of 2011.
Several class action lawsuits have been brought by purported Nicor
shareholders challenging the proposed merger. The complaints
allege that the Company aided and abetted alleged breaches of
fiduciary duty by Nicor's Board of Directors. The shareholder
actions seek, among other things, declaratory and injunctive
relief, including orders enjoining the defendants from completing
the proposed merger and, in certain circumstances, damages. No
assurances can be given as to the outcome of these lawsuits,
including the costs associated with defending these lawsuits or
any other liabilities or costs the parties may incur in connection
with the litigation or settlement of these lawsuits. Furthermore,
one of the conditions to closing the merger is that there are no
injunctions issued by any court preventing the completion of the
transactions. No assurance can be given that these lawsuits will
not result in such an injunction being issued which could prevent
or delay the closing of the merger.
In March 2011, the parties entered into an agreement to resolve
all of the shareholder lawsuits, subject to court approval, based
on Nicor providing certain supplemental disclosures to the
Company's joint proxy statement filed on April 28, 2011. The
parties expect to submit the agreement to the court for approval
shortly.
ALLIANT LAW: Class Action Settlement Gets Preliminary Okay
----------------------------------------------------------
The Law Offices of Douglas J. Campion on August 5 issued a
statement about the preliminary approval by the Court in the
Northern District of California of a settlement of a class action
lawsuit involving calls to cell phones.
On June 22, 2011, the Court preliminarily approved a class action
settlement in the matter of Patrick Grannan v. Alliant Law Group,
PC, Case No. CV 10-02803 HRL. The settlement resolves a lawsuit
in which Plaintiff Patrick Grannan sued Alliant Law Group, PC for
allegedly violating the Telephone Consumer Protection Act (TCPA)
by calling people on their cellular telephones without their prior
express consent, either with an automatic telephone dialing system
or by a prerecorded voice message between June 25, 2006 and
June 22, 2011.
Without admitting liability, Alliant has agreed to settle
Plaintiff's Lawsuit by agreeing to pay the sum of $1,000,000.00
for full settlement of all claims for the calls made by Alliant to
the 137,981 unique cell phone numbers Alliant called in the Class
Period, including all related costs and attorneys' fees.
If you were the owner of one of the cell phones whose number is on
the list of 137,981 cell phone numbers called by Alliant during
the Class Period, you are member of the Class in this matter and
may have the right to make a claim. Please go to
http://www.alliantTCPAlawsuit.comor call the claims administrator
at 1-877-255-9840 for more details. If you are a Class Member,
you may either file a claim, exclude yourself from the lawsuit, or
object to the settlement.
This is only a summary of the terms of the proposed settlement. A
Summary Notice has been mailed to Class Members. Also, please see
the Long Form Notice, available on the "Case Documents" page of
the Web site, http://www.alliantTCPAlawsuit.comfor more details
regarding the lawsuit, class membership, and the legal rights and
options available to you if you are a Class Member.
The Law Offices of Douglas J. Campion represents consumers in TCPA
and other consumer cases and employees in employment cases. The
office is located at 409 Camino Del Rio South, Suite 303, San
Diego, California 92018.
ALLIED HEALTHCARE: Sued Over Proposed Sale to Saga Group
--------------------------------------------------------
Richard Reed, on Behalf of Himself and All Others Similarly
Situated v. Allied Healthcare International Inc., Alexander Young,
Jeffrey S. Peris, Wayne Palladino, Sophia Corona, Ann Thornburg,
Mark Hanley, Raymond J. Playford, Saga Group Limited, AHL
Acquisition Corp., Case No. 652160/2011 (N.Y. Sup Ct.,
August 4, 2011) seeks to enjoin the Defendants from further
breaching their fiduciary duties in their pursuit of a sale of the
Company at an unfair price through an unfair and self-serving
process to Saga, the Plaintiff argues.
Instead of negotiating a contract to secure the best consideration
reasonably available for Allied's shareholders, the defendants
disloyally placed their own interests first and tailored the terms
and conditions of the Proposed Acquisition to meet their own
personal needs and objectives, Mr. Reed alleges.
Mr. Reed is a shareholder of Allied.
Allied is a New York corporation and a leading homecare provider
of health and social care in the United Kingdom. Saga is a
corporation organized under the laws of England and Wales, and
a leading provider of products and services specifically designed
for people aged fifty and over in the United Kingdom. AHL is a
New York corporation and wholly owned subsidiary of Saga. The
Individual Defendants are directors and officers of Allied.
The Plaintiff is represented by:
Gregory B. Linkh, Esq.
MURRAY FRANK LLP
275 Madison Avenue
New York, NY 10016
Telephone: (212) 682-1818
Facsimile: (212) 682-1892
E-mail: glinkh@murrayfrank.com
- and -
Brian J. Robbins, Esq.
Stephen J. Oddo, Esq.
ROBBINS UMEDA LLP
600 B Street, Suite 1900
San Diego, CA 92101
Telephone: (619) 525-3990
Facsimile: (619) 525-3991
E-mail: brobbins@robbinsumeda.com
soddo@robbinsumeda.com
- and -
Willie Briscoe, Esq.
THE BRISCOE LAWFIRM, PLLC
8117 Preston Road, Suite 300
Dallas, TX 75225
Telephone: (214) 706-9314
Facsimile: (214) 706-9315
E-mail: wbriscoe@thebriscoelawfirm.com
- and -
POWERS TAYLOR LLP
Patrick Powers, Esq.
8150 N. Central Expressway, Suite 1575
Dallas, TX 75206
Telephone: (214) 239-4565
Facsimile: (214) 550-2635
E-mail: patrick@powerstaylor.com
AMBAC FINANCIAL: Sept. 28 Class Action Settlement Hearing Set
-------------------------------------------------------------
The Law Firms of Bernstein Litowitz Berger & Grossmann LLP and
Kaplan Fox & Kilsheimer LLP provided a notice of a proposed
settlement of a class action involving Ambac Financial Group, Inc.
Securities.
TO: ALL PERSONS AND ENTITIES WHO PURCHASED OR OTHERWISE ACQUIRED
ANY AMBAC FINANCIAL GROUP, INC. SECURITIES, INCLUDING AMBAC EQUITY
OR DEBT SECURITIES OR OPTIONS THEREON, OR ANY STRUCTURED
REPACKAGED ASSET-BACKED TRUST SECURITIES, CALLABLE CLASS A
CERTIFICATES, SERIES 2007-1, STRATS(SM) TRUST FOR AMBAC FINANCIAL
GROUP, INC. SECURITIES, SERIES 2007-1 ("STRATS") (collectively
"AMBAC SECURITIES") IN THE PERIOD FROM OCTOBER 19, 2005, THROUGH
AND INCLUDING JULY 18, 2009:
YOU ARE HEREBY NOTIFIED pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order by the United States District
Court for the Southern District of New York (i) of the pendency of
the action encaptioned In re Ambac Financial Group, Inc.
Securities Litigation, Case No. 08-cv-00411-NRB (S.D.N.Y.) as a
class action on behalf of the persons and entities described
above, including an Underwriter Class of all persons or entities
who purchased or acquired Ambac securities in or traceable to the
February 2007 Directly-Issued Subordinated Capital Securities
offering, except for certain persons and entities who are excluded
from the Class and/or Underwriter Class as provided in the Notice
(as defined below); and (ii) that two settlements reached in this
Action, one of which also covers the claims of the putative class
in Tolin v. Ambac, et al., Case No. 08-cv-11241-CM (S.D.N.Y) have
been proposed that will fully and finally settle all claims
against and release all Defendants (i.e., a settlement with Ambac,
the Individual Defendants, and certain of its insurers in the
amount of $27,100,000.00; and a settlement with the Underwriter
Defendants in the amount of $5,900,000.00). The total cash amount
of the Settlements equals $33,000,000.00. A hearing will be held
before the Honorable Naomi Reice Buchwald in the United States
District Court for the Southern District of New York, Daniel
Patrick Moynihan United States Courthouse, 500 Pearl Street,
Courtroom 21A, New York, NY 10007, at 10:00 a.m. on September 28,
2011, to determine: (1) whether this Action should be finally
certified, for settlement purposes only, as a class action under
Rules 23(a) and (b) of the Federal Rules of Civil Procedure on
behalf of the Class; (2) whether the proposed Settlements should
be approved by the Court as fair, reasonable, and adequate; (3)
whether the Plan of Allocation is fair, reasonable and adequate
and therefore should be approved in connection with the
Settlements; and (4) whether the application of Lead Counsel for
attorneys' fees and Litigation Expenses should be approved.
IF YOU ARE A MEMBER OF THE CLASS, YOUR RIGHTS WILL BE AFFECTED BY
THE SETTLEMENTS, AND YOU MAY BE ENTITLED TO SHARE IN THE
SETTLEMENT FUND. If you have not yet received the (1) Notice of
Pendency of Class Action And Proposed Settlements, Final Approval
Hearing, And Motion For Attorneys' Fees And Reimbursement Of
Litigation Expenses; and (2) Proof Of Claim And Release, you may
obtain copies of these documents by contacting: Ambac Financial
Group Inc. Securities Litigation, c/o Rust Consulting, Inc., P.O.
Box 2457, Faribault, MN 55021-9157, (877) 497-5866. Copies of the
Notice and Claim Form may also be downloaded from
http://www.blbglaw.comor http://www.kaplanfox.comor
http://www.AmbacSecuritiesLitigation.com
If you are a Class Member, in order to be potentially eligible to
share in the distribution of the Net Settlement Fund, you must
submit a Claim Form no later than October 24, 2011, establishing
that you are entitled to a recovery. You will be bound by any
judgment(s) entered in the Action whether or not you make a Claim.
If you desire to be excluded from the Class, you must submit a
request for exclusion to be received by September 7, 2011, in the
manner and form explained in the Notice. All Class Members who do
not request exclusion from the Class will be bound by any
judgment(s) entered in the Action.
Any objection to the proposed Settlements, Plan of Allocation or
application for attorneys' fees and payment of Litigation Expenses
must be filed with the Court and delivered to be received by
counsel for the parties no later than September 7, 2011, in the
manner and form set forth in the Notice.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. Inquiries may be made to Plaintiffs' Lead Counsel:
Steven B. Singer, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1285 Avenue of the Americas, 38th Floor
New York, NY 10019
Telephone: 866-648-2524
- or -
Frederic S. Fox, Esq.
KAPLAN FOX & KILSHEIMER LLP
850 Third Avenue, 14th Floor
New York, NY 10022
Telephone: 800-290-1952
Dated: August 5, 2011
By Order of the Clerk of the Court
United States District Court for the Southern District of New York
AMERICAN CAPITAL: 'Klugmann' Class Suit Still Pending in Maryland
-----------------------------------------------------------------
American Capital Ltd. continues to defend itself from a purported
class action lawsuit filed in Maryland, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2011.
The Company and certain of its executive officers are defendants
in a purported class action lawsuit in the United States District
Court for the District of Maryland styled as Klugmann v. American
Capital, Ltd., et al. The lawsuit was filed on behalf of the
purchasers of the Company's common stock between October 31, 2007
and November 7, 2008, and alleges violations of Sections 10(b) and
20A of the Exchange Act and Rule 10b-5 promulgated thereunder,
violations of Sections 11 and 12(a)(2) of the Securities Act of
1933, as amended, and in the case of the individual defendants,
the control person provisions of the Exchange Act. The factual
assertions in the complaint consist primarily of the allegation
that the defendants made incorrect statements related to the
Company's dividend guidance for 2008. The complaint seeks
unspecified damages, costs and expenses. On June 14, 2010, the
court denied the defendants' motion to dismiss the matter, without
prejudice. The case is in the discovery stage and the Company
intends to continue to contest the matter vigorously.
AMERICAN EXPRESS: Issuance of Mandate to Remand Class Suit Stayed
-----------------------------------------------------------------
The issuance of a mandate remanding a consolidated class action
lawsuit against American Express Company back to the United States
District Court for the Southern District of New York remains
stayed, according to the Company's August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Since July 2003, the Company has been named in a number of
putative class actions in which the plaintiffs allege an unlawful
antitrust tying arrangement between certain of the Company's
charge cards and credit cards in violation of various state and
federal laws. These cases have all been consolidated in the United
States District Court for the Southern District of New York under
the caption: In re American Express Merchants' Litigation. A case
making similar allegations was also filed in the Southern District
of New York in July 2004 captioned: The Marcus Corporation v.
American Express Company et al. The Marcus case is not
consolidated. The plaintiffs in these actions seek injunctive
relief and an unspecified amount of damages. In April 2004, the
Company filed a motion to dismiss all the actions filed prior to
the date of its motion. In March 2006, that motion was granted,
with the court finding the claims of the plaintiffs to be subject
to individual arbitration. The plaintiffs appealed the District
Court's arbitration ruling and in January 2009, the United States
Court of Appeals for the Second Circuit reversed the District
Court. The Company filed with the United States Supreme Court a
petition for a writ of certiorari from the Second Circuit's
arbitration ruling. In May 2010, the Supreme Court granted the
Company's petition, vacated the judgment of the Second Circuit and
remanded the case back to the Second Circuit for further
consideration in light of decisions by the Supreme Court relevant
to the arbitration issues decided subsequent to the Second
Circuit's decision. On March 8, 2011, the Second Circuit again
reversed the District Court, and reaffirmed its prior reasoning in
doing so notwithstanding the Supreme Court's vacation and remand
of the decision. The Company filed a motion with the Second
Circuit request that the court stay issuance of the mandate
remanding the matter to the District Court pending further review
by the Supreme Court. On April 4, 2011, the Second Circuit granted
the Company's motion to stay the issuance of the mandate.
Subsequently, in light of the United States Supreme Court's
decision in the unrelated case of AT&T Mobility v. Concepcion,
which decided an issue directly relevant to the Second Circuit's
arbitration ruling, the Second Circuit requested that the parties
submit briefs addressing the issues raised by the Concepcion
decision. The parties submitted their briefs on June 6, 2011, and
are awaiting a further ruling from the Second Circuit.
In October 2007, The Marcus Corporation filed a motion seeking
certification of a class. In March 2009, the court denied the
plaintiffs' motion for class certification, without prejudicing
their right to remake such a motion upon resolution of the pending
summary judgment motion. In September 2008, American Express moved
for summary judgment seeking dismissal of The Marcus Corporation's
complaint, and The Marcus Corporation cross-moved for partial
summary judgment on the issue of liability. A decision on the
summary judgment motions is pending. A case captioned Hayama Inc.
v. American Express Company et al., which makes similar
allegations, was filed and remains in the Superior Court of
California, Los Angeles County (filed December 2003). To date the
Hayama action has been stayed at the Company's request.
In February 2009, an amended complaint was filed in In re American
Express Merchants' Litigation. The amended complaint contains a
single count alleging a violation of federal antitrust laws
through an alleged unlawful tying of: (a) corporate, small
business and/or personal charge card services; and (b) Blue,
Costco and standard GNS credit card services. In addition, in
February 2009, another complaint making the same allegations as
made in the amended complaint filed in In re American Express
Merchants' Litigation was also filed in the United States District
Court for the Southern District of New York. That case is
captioned Greenporter LLC and Bar Hama LLC, on behalf of
themselves and all others similarly situated v. American Express
Company and American Express Travel Related Services Company, Inc.
Proceedings in the Greenporter action and on the amended complaint
filed in In re American Express Merchants' Litigation have been
held in abeyance pending the disposition of the motions for
summary judgment in the Marcus case.
AMERICAN EXPRESS: Motion for Arbitration in "Meeks" Suit Pending
----------------------------------------------------------------
American Express Company's motion to compel individual arbitration
in the class action captioned Meeks v. American Express Centurion
remains pending, according to the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
In September 2010, a putative class action, captioned Meeks v.
American Express Centurion Bank, was filed in Fulton County
Superior Court, Georgia. In October 2010, the Company removed the
matter to federal court. The complaint alleges that plaintiff
opened an account in 2005 with an interest rate of prime plus an
additional marginal rate of 2.99 percent. Plaintiff contends that
he was promised that the marginal rate would remain fixed.
Plaintiff alleges that beginning in December 2008 the marginal
rate began to increase. Plaintiff asserts claims for breach of
contract, covenant of good faith and fair dealing,
unconscionability, unjust enrichment and duress. Plaintiff seeks
to certify a nationwide class of all American Express Cardmembers
who received unilateral interest rate increases despite their
accounts being in good standing. Plaintiff filed a motion seeking
to remand the case from federal court back to state court, and
that motion has been denied. Subsequently, the Company moved to
compel individual arbitration in the case, while Plaintiff has
sought discovery on the arbitration issue. The parties are
briefing the issue of whether the discovery sought by Plaintiff
should be granted prior to the court issuing a decision on the
Company's motion to compel individual arbitration.
AMERICAN EXPRESS: Continues to Defend Anti-Steering Suits in N.Y.
-----------------------------------------------------------------
American Express Company is still defending itself against certain
putative class actions over its "anti-steering" policies,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
Since August 2005, the Company has been named in a number of
putative class actions alleging that the Company's "anti-steering"
policies and contractual provisions violate United States
antitrust laws. Those cases were consolidated in the United States
District Court for the Southern District of New York under the
caption In re American Express Anti-Steering Rules Antitrust
Litigation. The plaintiffs' complaint in that consolidated action
seeks injunctive relief and unspecified damages. These plaintiffs
agreed that a stay would be imposed with regard to their
respective actions pending the appeal of the court's arbitration
ruling in In re American Express Merchants' Litigation. Given the
2009 ruling of the Second Circuit (in connection with In re
American Express Merchants' Litigation), the stay was lifted, and
American Express' response to the complaint was filed in April
2009. The court entered a scheduling order on December 28, 2009.
In July 2010 the court entered an order partially staying the case
pending the Second Circuit's arbitration ruling (following the
2010 remand by the Supreme Court in connection with In re American
Express Merchants' Litigation). In June 2010, the attorneys
representing the plaintiffs in In re American Express Anti-
Steering Rules Antitrust Litigation filed an action making similar
allegations captioned National Supermarkets Association v.
American Express and American Express Travel Related Services.
Upon filing, the plaintiffs designated that case as "related" to
In re American Express Anti-Steering Rules Antitrust Litigation.
By agreement of the parties, that case had been partially stayed
pending the Second Circuit's arbitration ruling. After the Second
Circuit's ruling, the District Court lifted the partial stay in
response to plaintiffs' request. However, in light of the Second
Circuit's stay of the issuance of the mandate in the action
captioned In re American Express Merchants' Litigation, the
Company sought reinstitution of the partial stay, which the
District Court granted.
In June 2008, five separate lawsuits were filed against American
Express Company in the United States District Court for the
Eastern District of New York alleging that the Company's "anti-
steering" provisions in its merchant acceptance agreements with
the merchant plaintiffs violate federal antitrust laws. As alleged
by the plaintiffs, these provisions prevent merchants from
offering consumers incentives to use alternative forms of payments
when consumers wish to use an American Express-branded card. The
five suits were filed by each of Rite-Aid Corp., CVS Pharmacy
Inc., Walgreen Co., Bi-Lo LLC, and H.E. Butt Grocery Company. The
plaintiff in each action seeks damages and injunctive relief.
American Express filed its answer to these complaints and also
filed a motion to dismiss these complaints as time barred. The
court denied the Company's motion to dismiss the complaints in
March 2010. On October 1, 2010, the parties to these actions
agreed to stay all proceedings pending related mediations, and
Magistrate Judge Ramon E. Reyes entered an order staying these
actions on October 18, 2010. The parties have since notified the
court that those mediations have reached impasses. On January 21,
2011, the following parties filed lawsuits making similar
allegations that the Company's "anti-steering" provisions violate
antitrust laws: Meijer, Inc., Publix Super Markets, Inc., Raley's
Inc., Supervalu, Inc., The Kroger Co., Safeway, Inc., Ahold
U.S.A., Inc., Albertson's LLC, Hy-Vee, Inc., and The Great
Atlantic & Pacific Tea Company, Inc.
In November 2010, two putative class action complaints making
allegations similar to those in In re American Express Anti-
Steering Rules Antitrust Litigation were filed in the United
States District Court for the Eastern District of New York by
Firefly Air Solutions, LLC d/b/a 128 Caf, and Plymouth Oil Corp.
d/b/a Liberty Gas Station. In addition, in December 2010, a
putative class action complaint making similar allegations, and
seeking certification of a Wisconsin-only class, was filed by
Treehouse Inc. d/b/a Treehouse Gift & Home in the United States
District Court for the Western District of Wisconsin. In January
2011, a putative class complaint, captioned Il Forno v. American
Express Centurion Bank, seeking certification of a California-only
class and making allegations similar to those in In re American
Express Anti-Steering Rules Antitrust Litigation, was filed in
United States District Court for the Central District of
California. These matters also had been partially stayed pending
the Second Circuit's arbitration decision in action captioned In
re American Express Merchants' Litigation. After the partial stay
was lifted, plaintiffs filed a Consolidated Class Complaint making
similar allegations to the prior class allegations in the various
class complaints, but dropping certain merchants as plaintiffs.
On February 7, 2011, in response to a transfer motion filed by the
plaintiffs in the Plymouth Oil action, the United States Judicial
Panel on Multi-District Litigation entered an order centralizing
the actions in the Eastern District of New York for coordinated or
consolidated pretrial proceedings before the Honorable Nicholas G.
Garaufis: (a) the putative class action that had been previously
pending in the Southern District of New York captioned In re
American Express Anti-Steering Rules Antitrust Litigation; (b) the
putative class actions already pending in the Eastern District of
New York filed by Firefly Air Solutions, LLC and by Plymouth Oil
Corp.; and (c) the individual merchant suits already pending in
the Eastern District of New York. On February 15, 2011, the United
States Judicial Panel on Multi-District Litigation issued a
conditional transfer order centralizing the related putative class
actions pending in the Central District of California and Western
District of Wisconsin before Judge Garaufis in the Eastern
District of New York, and those actions have been centralized
before Judge Garaufis for all pre-trial purposes.
AMERICAN EXPRESS: Argument on Appeal From Dismissal Set for August
------------------------------------------------------------------
Argument on an appeal from an order dismissing the class action
lawsuit captioned Baydale v. American Express Co., Kenneth I.
Chenault and Daniel Henry is scheduled this month, according to
the Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On February 20, 2009, a putative class action captioned Brozovich
v. American Express Co., Kenneth I. Chenault and Daniel T. Henry,
was filed in the United States District Court for the Southern
District of New York. The lawsuit alleged violations of the
federal securities laws in connection with certain alleged
misstatements regarding the credit quality of the Company's credit
card customers. The purported class covered the period from
March 1, 2007 to November 12, 2008. The action sought unspecified
damages and costs and fees. The Brozovich action was subsequently
voluntarily dismissed. In March 2009, a putative class action,
captioned Baydale v. American Express Co., Kenneth I. Chenault and
Daniel Henry, which made similar allegations to those made in the
Brozovich action, was filed in the United States District Court
for the Southern District of New York. In October 2009, the
plaintiff in the Baydale action filed an Amended Consolidated
Class Action Complaint in the action. The Company filed a motion
to dismiss with the court. In July 2010, the court granted the
Company's motion to dismiss and dismissed the complaint in its
entirety. The plaintiff has appealed the District Court's decision
on motion to dismiss to the United States Court of Appeals for the
Second Circuit, and briefing on the appeal has been completed,
with argument scheduled for August 2011.
AMERICAN EXPRESS: Discussing Proposed Settlement of "Kaufman" Suit
------------------------------------------------------------------
Parties to the class action lawsuit captioned Kaufman v. American
Express Travel Related Services are still discussing resolving
certain issues in order to obtain preliminary approval of their
proposed settlement, according to American Express Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
The Company is a defendant in a putative class action captioned
Kaufman v. American Express Travel Related Services, which was
filed on February 14, 2007, and is pending in the United States
District Court for the Northern District of Illinois. The
allegations in Kaufman relate primarily to monthly service fee
charges in respect of the Company's gift card products, with the
principal claim being that the Company's gift cards violate
consumer protection statutes because consumers allegedly have
difficulty spending small residual amounts on the gift cards prior
to the imposition of monthly service fees. In January 2009, the
Company signed a Memorandum of Understanding to resolve these
claims. Since such time, the parties have entered into a
settlement agreement that was submitted to the court for
preliminary approval. The proposed settlement class consists of
"all purchasers, recipients and holders of all gift cards issued
by American Express from January 1, 2002 through the date of
preliminary approval of the Settlement, including without
limitation, gift cards sold at physical retail locations, via the
internet, or through mall co-branded programs." Under the terms of
the proposed settlement, in addition to certain non-monetary
relief, the Company would pay $3 million into a settlement fund.
Members of the settlement class would then be entitled to submit
claims against the settlement fund to receive refunds of certain
gift card fees, and any monies remaining in the settlement fund
after payment of all claims would be paid to charity. In addition,
the Company would make available to the settlement class for a
period of time the opportunity to buy gift cards with no purchase
fee. Finally, the Company would be responsible for paying class
counsel's reasonable fees and expenses and certain expenses of
administering the class settlement. The Company is also a
defendant in two other putative class actions making allegations
similar to those made in Kaufman: Goodman v. American Express
Travel Related Services, pending in the United States District
Court for the Eastern District of New York, and Jarratt v.
American Express Company, filed in California Superior Court in
San Diego and subsequently removed to the United States District
Court for the Southern District of California. If the court
ultimately approves the proposed settlement in Kaufman, all
related gift card claims and actions would also be released. In
August 2010, in response to objections by plaintiffs in certain of
the other pending cases, the Kaufman court partially granted and
partially denied approval of the settlement. The Company had filed
a motion for reconsideration of the portion of the court's
decision partially denying approval of the settlement, but it has
withdrawn that motion. The parties are discussing resolving the
issues remaining in order to obtain preliminary approval of the
proposed settlement.
AMERICAN EXPRESS: Court Sets May 7, 2012 Trial Date in "Ross" Suit
------------------------------------------------------------------
The United States District Court for the Southern District of New
York has set a May 7, 2012, trial date in the lawsuit captioned
Ross, et al. v. American Express Company, American Express Travel
Related Services and American Express Centurion Bank, according to
the Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In July 2004, a purported class action captioned Ross, et al. v.
American Express Company, American Express Travel Related Services
and American Express Centurion Bank was filed in the United States
District Court for the Southern District of New York. The
complaint alleges that American Express conspired with Visa,
MasterCard and Diners Club in the setting of foreign currency
conversion rates and in the inclusion of arbitration clauses in
certain of their cardmember agreements. The suit seeks injunctive
relief and unspecified damages. The class is defined as "all Visa,
MasterCard and Diners Club general-purpose cardholders who used
cards issued by any of the MDL Defendant Banks." American Express
cardholders are not part of the class. In September 2005, the
District Court denied the Company's motion to dismiss the action
and preliminarily certified an injunction class of Visa and
MasterCard cardholders to determine the validity of Visa's and
MasterCard's cardmember arbitration clauses. American Express
filed a motion for reconsideration with the District Court, which
motion was denied in September 2006. The Company filed an appeal
from the District Court's order denying its motion to compel
arbitration. In October 2008, the United States Court of Appeals
for the Second Circuit denied the Company's appeal and remanded
the case to the District Court for further proceedings. In January
2010, the court (1) certified a damage class of all Visa,
MasterCard and Diners Club general purpose cardholders who used
cards issued by any of the alleged co-conspiring banks during the
period July 22, 2000 to November 8, 2006, who were assessed a
foreign exchange transaction fee or surcharge and who have
submitted valid claims in In re Currency Conversion Antitrust
Litigation, and (2) denied American Express' motion to amend its
answer to add the affirmative defense of release. In June 2010,
the Company filed a motion for summary judgment with the Court,
which sought dismissal of plaintiff's complaint, and on March 29,
2011, the court denied that motion. The court has set a trial date
in the case of May 7, 2012.
AMERICAN EXPRESS: "Lopez" Suit Still Stayed in California
---------------------------------------------------------
A lawsuit against American Express Bank FSB and American Express
Centurion Bank remains stayed pending the outcome of an unrelated
case pending before the United States Supreme Court, according to
American Express Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
In October 2009, a putative class action, captioned Lopez, et al.
v. American Express Bank, FSB and American Express Centurion Bank,
was filed in the United States District Court for the Central
District of California. The complaint seeks to certify a
nationwide class of American Express Card members whose interest
rates were changed from fixed to variable in or around August 2009
or otherwise increased. American Express filed a motion to compel
arbitration, and plaintiff has amended their complaint to limit
the class to California residents only. The Company filed a
revised motion to compel arbitration and a motion to dismiss the
amended complaint. Both motions were denied by the Court.
Subsequently, in response to a request by the Company, the Court
stayed the action pending the outcome of a case captioned AT&T
Mobility v. Concepcion, which is pending before the United States
Supreme Court and may impact the question of whether the Company's
motion to compel arbitration should have been granted.
No updates were reported in the Company's latest SEC filing.
AMERICAN EXPRESS: Renewed Arbitration Plea in "Homa" Suit Pending
-----------------------------------------------------------------
American Express Company's renewed motion to compel individual
arbitration in the lawsuit, Homa v. American Express Company et
al., remains pending, according to the Company's August 3, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
In June 2006, a putative class action captioned Homa v. American
Express Company et al. was filed in the United States District
Court for the District of New Jersey. The case alleges, generally,
misleading and fraudulent advertising of the "tiered" "up to 5
percent" cash rebates with the Blue Cash card. The complaint
initially sought certification of a nationwide class consisting of
"all persons who applied for and received an American Express Blue
Cash card during the period from September 30, 2003 to the present
and who did not get the rebate or rebates provided for in the
offer." On December 1, 2006, however, plaintiff filed a First
Amended Complaint dropping the nationwide class claims and
asserting claims only on behalf of New Jersey residents who "while
so residing in New Jersey, applied for and received an American
Express Blue Cash card during the period from September 30, 2003
to the present." The plaintiff seeks unspecified damages and other
unspecified relief that the District Court deems appropriate. In
May 2007, the District Court granted the Company's motion to
compel individual arbitration and dismissed the complaint.
Plaintiff appealed that decision to the United States Court of
Appeals for the Third Circuit, and in February 2009, the Third
Circuit reversed the decision and remanded the case back to the
District Court for further proceedings. In October 2009, a
putative class action captioned Pagsolingan v. American Express
Company, et al. was filed in the United States District Court for
the Northern District of California. That case made allegations
that were largely similar to those made in Homa, except that
Pagsolingan alleged multiple theories of liability and sought to
certify a nationwide class of "[a]ll persons who applied for and
received an American Express Blue Cash card during the period from
September 30, 2003 to the present and who did not get the rebate
or rebates provided for in the offer." In May 2010, plaintiffs
voluntarily dismissed the Pagsolingan case in its entirety.
Subsequently, in response to a request by the Company, the
District Court stayed the Homa action pending the outcome of the
case AT&T Mobility v. Concepcion, which was subsequently decided
by the United States Supreme Court in a manner that supports the
Company's position that its motion to compel arbitration should
have been granted. The Company has renewed its motion to compel
individual arbitration, and that motion is being briefed by the
parties.
AMERICAN EXPRESS: Motion to Bring Class Suit Pending in Canada
--------------------------------------------------------------
In April 2011, in a matter captioned 9085-4886 Quebec Inc. and
Peter Bakopanos v. Amex Bank of Canada and Amex Canada Inc., a
motion was filed in the Quebec Superior Court seeking to authorize
the bringing of a class action lawsuit alleging that American
Express Company's "anti-steering" rules violate Canadian
competition law. The plaintiffs seek unspecified damages and the
elimination of the "anti-steering" rules.
No further updates were reported in the Company's August 3, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
AMERICAN INT'L: Judge Okays $450-Mil. Class Action Settlement
-------------------------------------------------------------
Rose Bouboushian at Courthouse News Service reports that a federal
judge approved a $450 million settlement between American
International Group (AIG) and scores of insurance firms harmed by
its underreporting of premiums, over objections by some class
plaintiffs.
According to judgments dating back to 2009, AIG spent decades
underreporting billions of dollars in workers compensation
premiums. This enabled the multibillion-dollar insurance giant to
reduce its share of the residual workers compensation market.
The overall effect was to increase the market costs of the other
members of the National Workers Compensation Reimbursement Pool,
who filed suit to stop the practice.
In January 2008, the National Association of Insurance
Commissioners (NAIC) became involved in the proceedings, examining
AIG's conduct from 1985 on.
After years of negotiations, the association arrived at a final
settlement figure of $450 million to be allocated to members of
the pool. AIG also agreed to pay $100 million in penalties plus
approximately $47 million in back taxes and assessments, and to
reform its workers compensation reporting.
As part of the settlement, recipients of the payouts and AIG
agreed to sign mutual releases preventing one another from making
any further claims regarding this matter post-settlement.
However, two original class plaintiffs against AIG -- Safeco
Insurance Company and Ohio Casualty Insurance Company -- strongly
objected to the proposed settlement and sought new class
certification.
The two argued that the releases pool members labored under were a
conflict of interest, because the releases did not benefit certain
insurance companies who AIG itself accused of underreporting
premiums.
In response, the other plaintiffs requested that they be certified
as a class and that the court grant preliminary approval of the
settlement.
In an opinion, U.S. District Judge Robert Gettleman sided against
Ohio Casualty and Safeco.
The alleged under reporters "did not act improperly in negotiating
global, mutual releases of all underreporting claims." Rather,
the releases benefited all members of the pool.
"Moreover, no legal authority supports the position that a
putative class representative who is dismissing its counterclaims
is conflicted," the court continued.
Safeco and Ohio Casualty also claimed that certain pool members
low-balled the settlement figure in order to convince AIG to
release its claims against them.
The judge threw out these claims, holding that "the negotiations
leading up to the proposed settlement do not demonstrate
collusion, a reverse auction, self-dealing, or any of the other
faults" alleged by Safeco and Ohio Casualty.
Judge Gettleman approved the settlement figure as well.
"Extensive discovery has undisputedly been completed, and the
court has been presented with volumes of argument, declarations,
and exhibits," he noted." It is clear that if litigation
proceeds, resolution will take years," Judge Gettleman wrote.
"Given the complex nature of the claims, legal fees are
astronomical, and recovery is far from certain. No more detail is
required for the court to find at this stage that, compared to the
strength of the case, the settlement figure is fair, adequate, and
reasonable," he concluded.
A copy of the Memorandum Opinion and Order in American
International Group, Inc., et al. v. ACE INA Holdings, Inc., et
al., Case No. 07-cv-02898 (N.D. Ill.), is available at:
http://www.courthousenews.com/2011/08/05/aig.pdf
AMERICAN SOCIETY: Sued Over Alleged Egg Donation Price-Fixing
-------------------------------------------------------------
Iulia Filip at Courthouse News Service reports that an antitrust
class action accuses the American Society for Reproductive
Medicine and the Society for Assisted Reproductive Technology of
fixing the price of human eggs for more than a decade, to profit
unfairly from the $80 million a year market. Lead plaintiff
Justine Levy says the Society for Assisted Reproductive Technology
has more than 393 member clinics, which account for more than 85
percent of the assisted reproductive technology clinics in the
United States.
Ms. Levy complains, among other things, that egg donors, who
suffer through lengthy, painful and potentially dangerous surgical
procedures, are paid the same hourly rates as sperm donors --
whose procedures are neither lengthy, painful, nor dangerous.
According to the federal complaint: "Defendants have been engaging
in illegal price fixing in the reproductive technology market
since 2000 when ASRM promulgated rules establishing the maximum
compensation its members should pay for egg donor services. SART
then agreed to adopt the newly developed maximum price rules for
its members.
"Defendants established the maximum price rules in an effort to
keep egg donor compensation artificially low and to retain more
revenue for themselves and the fertility clinics and egg donor
agencies that make up the defendant class. . .."
"The egg donor services market involves sales of approximately $80
million annually."
In her case, Ms. Levy says, she "sold egg donor services directly
to Seattle Reproductive Medicine, a fertility clinic and egg donor
agency with 13 physicians, of whom 12 are members of ASRM.
Ms. Levy's compensation was artificially low as a result of
defendants' price fixing."
She estimates the class of all women who sold human eggs for
assisted reproduction over the past 4 years to number in the tens
of thousands.
Ms. Levy says donors are grossly underpaid for submitting to a
painful egg retrieval process, which may produce complications
that include bleeding, reactions to hormones and liver failure.
"The majority of egg donations are made by women who are
compensated for their services," Ms. Levy says. "Payment is
necessary to provide incentive for egg donors to go through the
long and painful process of providing eggs. Most donors are
recruited with the promise of compensation for the egg donor
services including the time, efforts, discomfort, and health risks
resulting from the medical procedures involved."
The alleged basis for the payment rates is grossly unfair,
Ms. Levy says, as they nonsensically try to make egg donation
equivalent to sperm donation.
"Defendants originally determined the maximum price rules for egg
donor services based on the typical hourly rates paid to men
donating sperm. The maximum price rules do not take into account
the time, discomfort, health risks or possibility of future
medical complications that come with donating human eggs. Nor do
they take into account any adjustment for cost of living changes
within the past eleven years," the complaint states.
Ms. Levy estimates the average hourly rate for egg donors is $75
to $93, about the same as hourly rates for sperm donors.
ASRM established a cap on payments for egg donor services in 2000,
Ms. Levy says.
"ASRM has long been concerned about the prices paid to egg
providers for human egg donation services, and has promulgated
ethical guidelines concerning such payments since at least 1994.
"Prior to 2000, ASRM's standards of practice merely stated that
compensation for human egg donation services 'should not be so
excessive as to constitute undue inducement' but neither
organization had established a specific maximum price."
The 2000 price rules required justification for compensation over
$5,000 and set the maximum rate at $10,000. ASRM confirmed its
price caps in guidelines issued between 2002 and 2008, according
to the complaint.
Ms. Levy says the "defendants ASRM and SART disguise their price
fixing agreements as ethical guidelines. However, the maximum
price rules set by defendants are not merely ethical guidelines,
but strict rules that must be followed as a condition of
membership. To become a SART member fertility clinic, the clinic
must agree to abide by defendants' maximum price rules.
Similarly, members of ASRM must agree to 'adhere to the objectives
of the Society.'"
Ms. Levy says that "ASRM members have been required to adhere to
the maximum compensation rules for egg donor services as a
condition of membership since the initial promulgation of the
Maximum Price Report in 2000."
She says that independent egg donor agencies serving SART clinics
have adopted the maximum price rules, to increase their customer
base.
The complaint states: "ASRM and SART member fertility clinics and
egg donation agencies serving ASRM and SART member clinics have
successfully suppressed the price for egg donor services to prices
within the range set by the ASRM's maximum price rules.
"A survey performed in 2007 for SART reported that SART member
fertility clinics paid an average of $4,217 for egg donor services
per donor cycle, while egg donor agencies serving SART member
fertility clinics paid an average of $5,200 per cycle."
Ms. Levy calls this an antitrust violation.
"This naked price fixing of egg donor compensation is so unusual
in the modern United States regulatory environment of unrestrained
competition that the most intriguing question it raises is not
whether it violates the Sherman Act -- under existing precedent it
does. Rather, the relevant question is how, given the
government's substantial enforcement resources and the presence of
an active and entrepreneurial plaintiffs' bar, this buyers' cartel
has managed to survive unchallenged since at least 2000."
She adds: "By collectively agreeing to maintain artificially low
prices for donor eggs, defendant clinics have been able to reap
anti-competitive profits for themselves. Plaintiff and the
members of the plaintiff class have been injured by the absence of
a competitive market for the supply of donor eggs because they
have been paid less for egg donor services than they would have
been paid absent the ASRM maximum price rules."
Ms. Levy seeks class certification, damages for antitrust
violations, and wants the defendants enjoined from fixing human
egg prices.
A copy of the Complaint in Levy v. American Society for
Reproductive Medicine, et al., Case No. 11-cv-03803 (N.D. Calif.),
is available at:
http://www.courthousenews.com/2011/08/05/Ova.pdf
The Plaintiff is represented by:
L. Timothy Fisher, Esq.
Sarah N. Westcot, Esq.
BURSOR & FISHER, P.A.
2121 North California Boulevard, Suite 1010
Walnut Creek, CA 94596
Telephone: (925) 482-1515
E-mail: ltfisher@bursor.com
swestcot@bursor.com
- and -
Scott A. Bursor, Esq.
BURSOR & FISHER, P.A.
369 Lexington Avenue, 10th Floor
New York, NY 10017
Telephone: (212) 989-9113
E-mail: scott@bursor.com
ARTHROCARE CORP: Still Defends Consolidated Securities Suit
-----------------------------------------------------------
ArthroCare Corporation continues to defend itself against a
consolidated securities lawsuit in Texas, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On April 4, 2008, a putative securities class action was filed in
Federal court in the Southern District of Florida against the
Company and certain of its former executive officers, alleging
violations of Sections 10(b) and 20(a) of the Exchange Act and
Rule 10b-5 promulgated thereunder. Plaintiffs allege that the
defendants violated federal securities laws by issuing false and
misleading financial statements and making material
misrepresentations regarding the Company's internal controls,
business, and financial results. On October 28, 2008, the court
granted the Company's motion to transfer this case to the U.S.
District Court, Western District of Texas. (McIlvaine v.
ArthroCare, et al).
On July 25, 2008, a putative securities class action was filed in
Federal court in the Western District of Texas against the
Company, and certain of its current and former executive officers,
alleging violations of Sections 10(b) and 20(a) of the Exchange
Act and Rule 10b-5 promulgated thereunder. Plaintiffs allege that
the defendants violated federal securities laws by issuing false
and misleading financial statements and making material
misrepresentations regarding the Company's internal controls,
business, and financial results. (Strong v. ArthroCare, et al).
On August 7, 2008, a derivative action was filed in Federal court
in the Southern District of Florida against the Company and its
then-current directors alleging breach of fiduciary duty based on
the Company's alleged improper revenue recognition, improper
reporting of such revenue in SEC filings and press releases,
failure to maintain adequate internal controls, and failure to
supervise management. On October 14, 2008, the court granted the
Company's motion to transfer this case to the U.S. District Court,
Western District of Texas. (Weil v. Baker, et al).
On March 4, 2009, a derivative action was filed in Federal court
in the Western District of Texas against the Company's current
directors, a former director, certain of its current and former
executive officers and other employees and PricewaterhouseCoopers
LLP alleging (i) disgorgement under Section 304 of the Sarbanes-
Oxley Act; (ii) violations of Section 10(b) of the Exchange Act
and Rule 10b-5; (iii) breach of fiduciary duty; (iv) abuse of
control; (v) gross mismanagement of the Company; (vi) waste of
corporate assets; (vii) insider trading; and (viii) unjust
enrichment. (King v. Baker, et al).
On April 29, 2009, a derivative action was filed in Federal court
in the Western District of Texas against the Company's current
directors and a former director alleging breach of fiduciary duty
based on the Company's improper revenue recognition, improper
reporting of such revenue in SEC filings and press releases,
failure to maintain adequate internal controls, and failure to
supervise management. (Barron v. Baker, et al).
On October 28, 2008, and thereafter, the two putative securities
class actions and the shareholder derivative actions were
consolidated and designated: In Re ArthroCare Corporation
Securities Litigation, Case No. 1:08-cv-00574-SS (consolidated) in
the U.S. District Court, Western District of Texas. On December
10, 2008, Lead Plaintiffs and Lead Plaintiffs' counsel were
appointed in the putative consolidated securities class action.
The Lead Plaintiff filed an Amended Consolidated Class Action
Complaint on December 18, 2009, seeking unspecified monetary
damages and interest. ArthroCare filed a Motion to Dismiss the
Amended Consolidated Class Action Complaint on February 16, 2010.
On July 20, 2010, the federal court issued a ruling granting in
part and denying in part ArthroCare's Motion to Dismiss,
permitting certain claims related to statements after December 11,
2007, to continue.
No further updates were reported in the Company's latest SEC
filing.
BANK OF AMERICA: Sued Over Unauthorized Privacy Source Charges
--------------------------------------------------------------
Courthouse News Service reports that Bank of America charges
accountholders $12.99 a month for "privacy source credit
monitoring" though customers don't want it, didn't ask for it, and
were not told about it, according to a federal class action.
A copy of the Complaint in Long v. Bank of America, N.A., Case No.
DC-11-09659 (Tex. Dist. Ct., Dallas Cty.), is available at:
http://www.courthousenews.com/2011/08/05/BofA.pdf
The Plaintiff is represented by:
W. Shane Osborn, Esq.
Turner W. Branch, Esq.
BRANCH LAW FIRM
808 Travis, Suite 1553
Houston, TX 77002
Telephone: (713) 224-1500
E-mail: sosborn@branchlawfirm.com
tbranch@branchlawfirm.com
BIG 5: Paid $1.2MM in 2nd Quarter Under "Weyl" Suit Settlement
--------------------------------------------------------------
Big 5 Sporting Goods Corporation paid $1.2 million during the
second quarter of fiscal 2011, representing all payments required
under the settlement resolving the class action lawsuit, Shane
Weyl v. Big 5 Corp., et al., Case No. 37-2009-00093109-CU-OE-CTL,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
July 3, 2011.
On August 6, 2009, the Company was served with a complaint filed
in the California Superior Court for the County of San Diego,
entitled Shane Weyl v. Big 5 Corp., et al., Case No. 37-2009-
00093109-CU-OE-CTL, alleging violations of the California Labor
Code and the California Business and Professions Code. The
complaint was brought as a purported class action on behalf of the
Company's hourly employees in California for the four years prior
to the filing of the complaint. The plaintiff alleges, among other
things, that the Company failed to provide hourly employees with
meal and rest periods and failed to pay wages within required time
periods during employment and upon termination of employment. The
plaintiff seeks, on behalf of the class members, an award of one
hour of pay (wages) for each workday that a meal or rest period
was not provided; restitution of unpaid wages; actual,
consequential and incidental losses and damages; pre-judgment
interest; statutory penalties including an additional thirty days'
wages for each hourly employee in California whose employment
terminated in the four years preceding the filing of the
complaint; civil penalties; an award of attorneys' fees and costs;
and injunctive and declaratory relief. On December 14, 2009, the
parties engaged in mediation and agreed to settle the lawsuit. On
February 4, 2010, the parties filed a joint settlement and a
motion to preliminarily approve the settlement with the court. On
July 16, 2010, the court granted preliminary approval of the
settlement. On November 9, 2010, the plaintiff filed a motion for
final approval of the settlement with the court. On January 24,
2011, the court granted final approval of the settlement, reduced
the award of plaintiff's attorneys' fees, and instructed
plaintiff's counsel to prepare a written order on final approval
of the settlement. The plaintiff filed a renewed motion for an
award of attorneys' fees and costs, and the court granted the
motion in part. On June 2, 2011, the court issued a written order
granting final approval of the settlement and entered judgment on
the settlement. The Company admitted no liability or wrongdoing
with respect to the claims set forth in the lawsuit. The
settlement constitutes a full and complete settlement and release
of all claims related to the lawsuit. The Company previously
recorded an estimated liability of $1.4 million under the
settlement, inclusive of payments to class members, plaintiff's
attorneys' fees and expenses, an enhancement payment to the class
representative, claims administrator fees and payment to the
California Labor and Workforce Development Agency, which was
included within the Company's accrued liabilities. During the
second quarter of fiscal 2011, the Company paid $1.2 million,
representing all payments required under the settlement.
BIG 5: Obtains Final Approval of Settlement in "Kelly" Suit
-----------------------------------------------------------
Big 5 Sporting Goods Corporation obtained final approval of its
settlement resolving the class action lawsuit, Michael Kelly v.
Big 5 Sporting Goods Corporation, et al., Case No. 37-2009-
00095594-CU-MC-CTL, according to the Company's August 3, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended July 3, 2011.
On August 13, 2009, the Company was served with a complaint filed
in the California Superior Court for the County of San Diego,
entitled Michael Kelly v. Big 5 Sporting Goods Corporation, et
al., Case No. 37-2009-00095594-CU-MC-CTL, alleging violations of
the California Business and Professions Code and California Civil
Code. The complaint was brought as a purported class action on
behalf of persons who purchased certain tennis, racquetball and
squash rackets from the Company. The plaintiff alleges, among
other things, that the Company employed deceptive pricing,
marketing and advertising practices with respect to the sale of
such rackets. The plaintiff seeks, on behalf of the class members,
unspecified amounts of damages and/or restitution; attorneys' fees
and costs; and injunctive relief to require the Company to
discontinue the allegedly improper conduct. On July 20, 2010, the
plaintiff filed with the court a Motion for Class Certification.
The plaintiff and the Company engaged in mediation on September 1,
2010 and again on November 22, 2010. During mediation, the parties
agreed to settle the lawsuit. On January 27, 2011, the plaintiff
filed a motion to preliminarily approve the settlement with the
court. On March 21, 2011, the court granted preliminary approval
of the settlement. On July 15, 2011, the plaintiff filed with the
court a motion for final approval of the settlement. On July 29,
2011, the court granted final approval of the settlement and
entered judgment on the settlement. Under the terms of the
settlement, the Company agreed that class members who submit valid
and timely claim forms will receive a refund of the purchase price
of a class racket, up to $50 per racket, in the form of either a
gift card or a check. Additionally, the Company agreed to pay
plaintiff's attorneys' fees and costs, an enhancement payment to
the class representative and claims administrator's fees.
Furthermore, if the total amount paid by the Company for the class
payout, plaintiff's attorneys' fees and costs, class
representative enhancement payment and claims administrator's fees
is less than $4.0 million, then the Company will issue merchandise
vouchers to a charity for the balance of the deficiency in the
manner provided in the settlement agreement. The Company's
estimated total cost pursuant to this settlement is reflected in a
legal settlement accrual recorded in the fourth quarter of fiscal
2010. The Company admitted no liability or wrongdoing with respect
to the claims set forth in the lawsuit. The settlement constitutes
a full and complete settlement and release of all claims related
to the lawsuit.
BIG 5: Continues to Defend Nine Suits Over Credit Card Purchases
----------------------------------------------------------------
Big 5 Sporting Goods Corporation continues to defend itself
against nine class action lawsuits filed by people who were asked
to provide their personal identification information at the time
they used their credit cards at the Company's stores in
California, according to the Company's August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended July 3, 2011.
The Company was served on the following dates with the following
nine complaints, each of which was brought as a purported class
action on behalf of persons who made purchases at the Company's
stores in California using credit cards and were requested or
required to provide personal identification information at the
time of the transaction: (1) on February 22, 2011, a complaint
filed in the California Superior Court in the County of Los
Angeles, entitled Maria Eugenia Saenz Valiente v. Big 5 Sporting
Goods Corporation, et al., Case No. BC455049, alleging violations
of the California Civil Code and Business and Professions Code;
(2) on February 22, 2011, a complaint filed in the California
Superior Court in the County of Los Angeles, entitled Scott
Mossler v. Big 5 Sporting Goods Corporation, et al., Case No.
BC455477, alleging violations of the California Civil Code; (3) on
February 28, 2011, a complaint filed in the California Superior
Court in the County of Los Angeles, entitled Yelena Matatova v.
Big 5 Sporting Goods Corporation, et al., Case No. BC455459,
alleging violations of the California Civil Code; (4) on March 8,
2011, a complaint filed in the California Superior Court in the
County of Los Angeles, entitled Neal T. Wiener v. Big 5 Sporting
Goods Corporation, et al., Case No. BC456300, alleging violations
of the California Civil Code; (5) on March 22, 2011, a complaint
filed in the California Superior Court in the County of San
Francisco, entitled Donna Motta v. Big 5 Sporting Goods
Corporation, et al., Case No. CGC-11-509228, alleging violations
of the California Civil Code, negligence, invasion of privacy and
unlawful intrusion; (6) on March 30, 2011, a complaint filed in
the California Superior Court in the County of Alameda, entitled
Steve Holmes v. Big 5 Sporting Goods Corporation, et al., Case No.
RG11563123, alleging violations of the California Civil Code; (7)
on March 30, 2011, a complaint filed in the California Superior
Court in the County of San Francisco, entitled Robin Nelson v. Big
Sporting Goods Corporation, et al., Case No. CGC-11-508829,
alleging violations of the California Civil Code, negligence,
invasion of privacy and unlawful intrusion; (8) on April 8, 2011,
a complaint filed in the California Superior Court in the County
of San Joaquin, entitled Pamela B. Smith v. Big 5 Sporting Goods
Corporation, et al., Case No. 39-2011-00261014-CU-BT-STK, alleging
violations of the California Civil Code; and (9) on May 31, 2011,
a complaint filed in the California Superior Court in the County
of Los Angeles, entitled Deena Gabriel v. Big 5 Sporting Goods
Corporation, et al., Case No. BC462213, alleging violations of the
California Civil Code. Each plaintiff alleges, among other things,
that customers making purchases with credit cards at the Company's
stores in California were improperly requested to provide their
zip code at the time of such purchases. Each plaintiff seeks, on
behalf of the class members, some or all of the following:
statutory penalties; attorneys' fees; costs; restitution of
property; disgorgement of profits; and injunctive relief. On
June 16, 2011, the Judicial Council of California issued an Order
Assigning Coordination Trial Judge designating the California
Superior Court in the County of Los Angeles as having jurisdiction
to coordinate and to hear all nine of the cases. The Company
intends to defend each suit vigorously. Because these disputes
remain in the preliminary stages and, among other things,
discovery is still ongoing, the Company is not able to estimate a
range of potential loss in the event of an unfavorable outcome in
any of these cases at the present time. If any of these cases are
resolved unfavorably to the Company, such litigation, the costs of
defending it and any resulting required change in the business
practices of the Company could have a material negative impact on
the Company's results of operations and financial condition.
BJ'S RESTAURANTS: Discovery Ongoing in Suit Over On-Call Time
-------------------------------------------------------------
Discovery continues in the class action lawsuit alleging BJ's
Restaurants, Inc., failed to pay team members wages for on-call
time, according to the Company's August 3, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 28, 2011.
On February 4, 2009, a team member filed a putative class action
complaint in Fresno County, California, Superior Court on behalf
of himself and other current and former team members. The
complaint alleges causes of action for failure to pay wages for
on-call time in violation of the California Labor Code, violation
of California Business and Professional Code, and penalties for
failure to pay wages in a timely manner. The complaint also seeks
unspecified damages, a constructive trust, restitution, injunctive
relief, interest, attorneys' fees and costs. On August 14, 2009,
a first amended complaint was filed, in which two other team
members joined the action as plaintiffs. The Company answered the
operative complaint denying the allegations and is engaging in
continuing discovery. The Company is vigorously defending its
position in this action.
BJ'S RESTAURANTS: Reaches Deal to Settle Misclassification Suit
---------------------------------------------------------------
BJ's Restaurants, Inc., reached a settlement in principle in the
class action lawsuit alleging it misclassified California
managers, according to the Company's August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 28, 2011.
On August 25, 2009, a former team member filed a putative class
action in Los Angeles County, California, Superior Court on behalf
of himself and other current and former team members working as
restaurant managers in California. The complaint, as amended,
alleges the Company's California managers were misclassified as
exempt from overtime and other California law requirements and
alleges causes of action for failure to pay overtime wages,
failure to provide meal and rest periods, failure to pay wages in
a timely manner, failure to provide accurate wage statements,
failure to keep accurate payroll records, penalties for unpaid
wages, and failure to reimburse class members for business
expenses in violation of the California Labor Code and unfair
competition in violation of the California Business and
Professions Code. The complaint seeks unspecified damages,
restitution, injunctive relief, interest, attorneys' fees and
costs. In January 2010, on the Company's motion, the Court
ordered the venue of the case transferred to Orange County. The
Company responded to the third amended complaint, the operative
complaint.
The parties reached a settlement in principle of this action in
July 2011. The plaintiff will file a motion for preliminary
approval with the court within the next month. The Company says
the terms of this settlement are not considered to be material to
its consolidated financial position.
BOIRON USA: Faces Class Action Over False Claims on Oscillo
-----------------------------------------------------------
Courthouse News Service reports that Boiron USA sells "a sugar
pill" it calls Oscillo with false claims that it can "cure the
flu," a class action claims in Superior Court.
A copy of the Complaint in Gonzales v. Boiron, Inc., et al.,
Case No. 37-2011-00095740 (Calif. Super. Ct., San Diego Cty.), is
available at:
http://www.courthousenews.com/2011/08/05/SnakeOil.pdf
The Plaintiff is represented by:
Scott J. Ferrell, Esq.
Ryan M. Ferrell, Esq.
NEWPORT TRIAL GROUP
895 Dove Street, Suite 425
Newport Beach, CA 92660
E-mail: sferrell@trialnewport.com
rferrell@trialnewport.com
CAL-MAINE FOODS: Continues to Defend Antitrust Class Suits
----------------------------------------------------------
Cal-Maine Foods Inc. continues to defend itself from antitrust
cases involving the shell egg industry, according to the Company's
August 4, 2011, Form 10-K filing with the U.S. Securities and
Exchange Commission for the fiscal year ended May 28, 2011.
Since September 25, 2008, the Company has been named as one of
several defendants in twenty-four antitrust cases involving the
United States shell egg industry. In sixteen of these cases, the
named plaintiffs sued on behalf of themselves and a putative class
of others who claim to be similarly situated. In fourteen of
those putative class actions, the named plaintiffs allege that
they are retailers or distributors that purchased shell eggs and
egg products directly from one or more of the defendants. In the
other two putative class actions, the named plaintiffs are
individuals or companies who allege that they purchased shell eggs
and egg products indirectly from one or more of the defendants --
that is, they purchased from retailers that had previously
purchased from defendants or other parties. In the remaining
eight cases, the plaintiffs sued for their own alleged damages and
are not seeking to certify a class.
The Judicial Panel on Multidistrict Litigation consolidated all of
the putative class actions (as well as certain other cases in
which the Company was not a named defendant) for pretrial
proceedings in the United States District Court for the Eastern
District of Pennsylvania. The Pennsylvania court has organized
the putative class actions around two groups (direct purchasers
and indirect purchasers) and has named interim lead counsel for
the named plaintiffs in each group.
Six of the eight non-class suits were filed in the same court that
is presiding over the putative class actions. One of these cases
was voluntarily dismissed without prejudice by the plaintiff.
Another of these cases was filed in the United States District
Court for the Western District of Pennsylvania, but the defendants
have transferred it to the Eastern District, and it has been
consolidated for pretrial proceedings with the other cases. The
remaining non-class suit was filed in the District Court of
Wyandotte County, Kansas. The defendants removed this case to the
United States District Court for the District of Kansas and then
requested that it be transferred to the Eastern District of
Pennsylvania and consolidated with the Multidistrict Litigation
proceedings in that court. The Judicial Panel on Multidistrict
Litigation granted that transfer request, and the case has now
been consolidated in the Eastern District of Pennsylvania. The
plaintiffs in this action have filed a motion to remand the case
back to the District Court of Wyandotte County, Kansas, but that
motion has not been decided.
The named plaintiffs in the direct purchaser case filed a
consolidated complaint on January 30, 2009. On April 30, 2009, the
Company filed motions to dismiss the direct purchasers'
consolidated complaint. The direct purchaser plaintiffs did not
respond to those motions. Instead, the direct purchaser
plaintiffs announced a potential settlement with one defendant.
The final hearing on approval of that settlement has been held,
but the court has not yet ruled. If it is approved, the
settlement would not require the settling party to pay any money.
Instead, the settling defendant, while denying all liability,
would provide cooperation in the form of documents and witness
interviews to the plaintiffs' attorneys. After announcing this
potential settlement with one defendant, the direct purchaser
plaintiffs filed an amended complaint on December 11, 2009. On
February 5, 2010, the Company joined with other defendants in
moving to dismiss the direct purchaser plaintiffs' claims for
damages outside the four-year statute of limitations period and
claims arising from a supposed conspiracy in the egg products
sector. The court heard oral argument on these motions but has
not yet ruled. On February 26, 2010, the Company filed its answer
and affirmative defenses to the direct purchaser plaintiffs'
amended complaint. On June 4, 2010, the direct purchaser
plaintiffs announced a potential settlement with a second
defendant. The final hearing on approval of this settlement has
also been held, but the court has not ruled. If this settlement
is approved, then the defendant would pay a total of $25 million
and would provide other consideration in the form of documents,
witness interviews, and declarations. This settling defendant
denied all liability in its potential agreement with the direct
purchaser plaintiffs and stated publicly that it settled merely to
avoid the cost and uncertainty of continued litigation.
The named plaintiffs in the indirect purchaser case filed a
consolidated complaint on February 27, 2009. On April 30, 2009,
the Company filed motions to dismiss the indirect purchasers'
consolidated complaint. The indirect purchaser plaintiffs did not
respond to those motions. Instead, the indirect purchaser
plaintiffs filed an amended complaint on April 8, 2010. On May 7,
2010, the Company joined with other defendants in moving to
dismiss the indirect purchaser plaintiffs' claims for damages
outside the four-year statute of limitations period, claims
arising from a supposed conspiracy in the egg products sector,
claims arising under certain state antitrust and consumer frauds
statutes, and common-law claims for unjust enrichment. The court
heard oral argument on these motions but has not yet ruled. On
June 4, 2010, the Company filed its answer and affirmative
defenses to the indirect purchaser plaintiffs' amended complaint.
The cases in which plaintiffs do not seek to certify a class were
filed between November 16, 2010 and January 25, 2011. The Company
has not yet answered or moved to dismiss any of these cases.
In all of the cases, the plaintiffs allege that the Company and
certain other large domestic egg producers conspired to reduce the
domestic supply of eggs in a concerted effort to raise the price
of eggs to artificially high levels. In each case, plaintiffs
allege that all defendants agreed to reduce the domestic supply of
eggs by (a) manipulating egg exports and (b) implementing
industry-wide animal welfare guidelines that reduced the number of
hens and eggs.
Both groups of named plaintiffs in the putative class actions seek
treble damages and injunctive relief on behalf of themselves and
all other putative class members in the United States. Both
groups of named plaintiffs in the putative class actions allege a
class period starting on January 1, 2000 and running "through the
present." The direct purchaser putative class action case alleges
two separate sub-classes -- one for direct purchasers of shell
eggs and one for direct purchasers of egg products. The direct
purchaser putative class action case seeks relief under the
Sherman Act. The indirect purchaser putative class action case
seeks relief under the Sherman Act and the statutes and common-law
of various states, the District of Columbia, and Puerto Rico.
In six of the non-class cases, the plaintiffs seek damages and
injunctive relief under the Sherman Act. In one of the non-class
cases, the plaintiff seeks damages and injunctive relief under the
Sherman Act and the Ohio antitrust act (known as the Valentine
Act). In the remaining non-class case, the plaintiffs seek
damages and injunctive relief under the Kansas Restraint of Trade
Act.
The Pennsylvania court has entered a series of orders in the
putative class actions related to case management and scheduling.
There is no definite schedule in either putative class action case
for discovery, class certification proceedings, or filing motions
for summary judgment. No trial date has been set in either
putative class action case. The non-class cases were filed so
recently that the court has not set any schedule for them.
The Company intends to continue to defend these cases as
vigorously as possible based on defenses which the Company
believes are meritorious and provable
CAREER EDUCATION: "Amador" Suit Settlement Hearing Set for Aug. 22
------------------------------------------------------------------
The hearing to consider Career Education Corporation's motions to
disallow requests submitted on behalf of students purporting to
opt out of settlement, as well as a motion for final approval of a
class action settlement, is set for August 22, 2011, according to
the Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On September 27, 2007, Allison Amador and 36 other current and
former students of the California Culinary Academy ("CCA") filed a
complaint captioned Amador, et al. v. California Culinary Academy
and Career Education Corporation in the California Superior Court
in San Francisco. Plaintiffs plead their original complaint as a
putative class action and allege four causes of action: fraud;
constructive fraud; violation of the California Unfair Competition
Law; and violation of the California Consumer Legal Remedies Act.
Plaintiffs contend that CCA made a variety of misrepresentations
to them, primarily oral, during the admissions process. The
alleged misrepresentations relate generally to the school's
reputation, the value of the education, the competitiveness of the
admissions process, and the students' employment prospects upon
graduation, including the accuracy of statistics published by CCA.
On April 3, 2008, the same counsel representing plaintiffs in the
Amador action filed the Adams action on behalf of Jennifer Adams
and several other unnamed members of the Amador putative class,
captioned Adams, et al. v. California Culinary Academy and Career
Education Corporation. The Adams action also is styled as a class
action and is based on the same allegations underlying the Amador
action and attempts to plead the same four causes of action pled
in the Amador action. The Adams action has been deemed related to
the Amador action and is being handled by the same judge. The
Adams action has been stayed.
Plaintiffs filed a Fourth Amended Complaint on or about March 19,
2010, alleging the same causes of action, but included a new claim
based on violations of the California Education Code, which was
recently reinstated by the California legislature. Defendants
filed a motion to dismiss this new claim. The motion was taken
under submission by the Court and has not been ruled on.
In October 2010, the parties reached agreement on all the material
terms of a settlement and executed a formal settlement agreement
as of November 1, 2010. The settlement is subject to court
approval. The monetary component of the settlement involves
payment by the Company of approximately $40.8 million to pay
claims by all students who enrolled in CCA and/or graduated from
CCA from September 28, 2003 through October 8, 2008. The payment
includes plaintiffs' attorneys' fees and certain expenses to be
incurred in connection with the implementation of the settlement.
During 2010, the Company recorded a pretax charge of $40.8 million
which represents the Company's best estimate of the loss related
to this matter. The settlement has been preliminarily approved by
the Court and the parties are in the process of implementing the
settlement terms. The Company disbursed $40.0 million during the
first quarter of 2011, as required by the terms of the agreement.
On July 25, 2011, the Company filed a motion seeking an order
disallowing the requests submitted on behalf of 42 of the students
purporting to opt out of the settlement in order to reserve their
right to pursue individual claims. This motion alleges that these
opt outs were untimely or otherwise improperly submitted. On
July 25, 2011, the Company filed a second motion relating to the
opt out process. This motion was filed based on concerns about
plaintiffs' counsel's apparent role in either soliciting,
encouraging or advising class members to opt out of the
settlement, and in filing a lawsuit on their behalf while the
settlement approval process is pending. This motion seeks a
variety of relief, including the right to rescind the settlement,
opposing plaintiffs' counsel's adequacy and fees, and other
equitable relief to attempt to remedy the effect of these
activities. These motions, along with the motion for final
approval of the settlement, are set for August 22, 2011.
On June 3, 2011, the same attorneys representing the class in the
Amador action filed a separate complaint in the San Francisco
County Superior Court entitled Abarca v. California Culinary
Academy, Inc., et al, on behalf of 115 individuals who are opt
outs in the Amador action and/or non-class members, and therefore
not subject to the Amador settlement. On June 15, 2011, the same
attorneys filed another action in the San Francisco County
Superior Court entitled Andrade, et al. v. California Culinary
Academy, Inc., et al., on behalf of another 31 individuals who are
opt outs in the Amador action and/or non-class members, and
therefore not subject to the Amador settlement. Both the Abarca
and Andrade complaints, neither of which is being prosecuted as a
class action, allege the same claims as were previously alleged in
the Amador action, plus claims for breach of contract and
violations of the repealed California Education Code. The
plaintiffs in both cases seek damages, including consequential
damages, punitive damages and attorneys' fees. The Company has
not responded to either complaint.
Because of the many questions of fact and law that may arise as
discovery and pre-trial proceedings progress, the outcome of the
Abarca and Andrade legal proceedings is uncertain at this point.
Based on information available to it at present, the Company
cannot reasonably estimate a potential range of loss for these
actions because these matters are in their early stages, and
involve many unresolved issues of fact and law. Accordingly, the
Company has have not recognized any liability associated with
these actions.
CAREER EDUCATION: Discovery in TCPA-Violations Suits Ongoing
------------------------------------------------------------
Parties in the class action lawsuits alleging Career Education
Corporation violated the Telephone Consumer Protection Act are
currently engaged in written and other fact discovery, according
to the Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On August 4, 2010, a putative class action lawsuit was filed in
the Circuit Court of Cook County, Illinois, by Sheila Fahey,
captioned Fahey, et al v. Career Education Corporation, alleging
that she had received an unauthorized text message advertisement
in violation of the Telephone Consumer Protection Act. On
September 3, 2010, CEC removed this case to the U.S. District
Court for the Northern District of Illinois. On November 22,
2010, CEC filed a motion to dismiss the Fahey case. That motion
is still pending. The Court has stayed any further activity on
the Fahey case until resolution of an appeal in the Seventh
Circuit of a case involving issues similar to those raised in the
Motion to Dismiss. On August 18, 2010, the same counsel
representing plaintiffs in the Fahey action filed a similar
lawsuit in the U.S. District Court for the Northern District of
Illinois on behalf of Sergio Rojas alleging similar violations of
the TCPA. The lawsuit is styled Rojas, et al v. Career Education
Corporation. Rojas, like Fahey, seeks class certification of his
claims. The alleged classes are defined to include persons who
received unauthorized text message advertisements from CEC. Rojas
and Fahey each seek an award trebling the statutory damages to the
class members, together with costs and reasonable attorneys' fees.
The Court has established a deadline of September 30, 2011, for
the parties to conclude all fact discovery in the Rojas case. All
other matters in the case, including additional briefing on
plaintiff's Motion for Class Certification, will be addressed
following the conclusion of fact discovery. The Court denied
plaintiff's Motion to Consolidate the Rojas and Fahey cases. The
parties are currently engaged in written and other fact discovery.
Because of the many questions of fact and law that may arise, the
outcome of this legal proceeding is uncertain at this point. Based
on information available to it at present, the Company cannot
reasonably estimate a potential range of loss for this action
because these matters are in their early stages, and involve many
unresolved issues of fact and law. Moreover, the Company does not
know the number of class members, if any, entitled to recovery.
Accordingly, the Company has not recognized any liability
associated with these actions.
CAREER EDUCATION: Hearing on Arbitration Plea Set for Sept. 30
--------------------------------------------------------------
A hearing on Career Education Corporation's motion to compel
arbitration of the claims asserted in the lawsuit commenced by
Daniel Vasquez and Cherish Herndon is set for September 30, 2011,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On June 23, 2008, a putative class action lawsuit was filed in the
Los Angeles County Superior Court entitled Daniel Vasquez and
Cherish Herndon v. California School of Culinary Arts, Inc. and
Career Education Corporation. The plaintiffs allege causes of
action for fraud, constructive fraud, violation of the California
Unfair Competition Law and violation of the California Consumer
Legal Remedies Act. The plaintiffs allege improper conduct in
connection with the admissions process during the alleged class
period. The alleged class is defined as including "all persons
who purchased educational services from California School of
Culinary Arts, Inc. ("CSCA"), or graduated from CSCA, within the
limitations periods applicable to the herein alleged causes of
action (including, without limitation, the period following the
filing of the action)." Defendants successfully demurred to the
constructive fraud claim and the Court has dismissed it.
Defendants also successfully demurred to plaintiffs' claims based
on alleged violations of California's former Educational Reform
Act.
The plaintiffs have filed an amended complaint, in which they
assert the same claims against the Company, but have added claims
against approximately 15 student lenders. The plaintiffs allege
the student lenders are contractually liable for damages incurred
as a result of conduct by the Company by virtue of certain "holder
clauses" included in their loan documents.
On or about April 19, 2011, the same attorneys representing the
plaintiffs in the Vasquez action filed two separate complaints in
the Los Angeles County Superior Court, alleging essentially the
same claims against the Company and the lenders on behalf of
approximately 400 individual students. In both of these actions,
which are not class actions, plaintiffs seek compensatory and
punitive damages, disgorgement and restitution of tuition monies
received, attorneys' fees, costs and injunctive relief. The
Company has not responded to the new complaints and the Court has
ordered that both actions be stayed pending a decision in Vasquez
on a motion for class certification.
The parties are engaged in class discovery and the Court is
expected to set a hearing on class discovery during the third
quarter of 2011.
The Company has filed a motion to compel arbitration of the claims
asserted by the class representatives. The motion is set for
hearing on September 30, 2011.
Because of the many questions of fact and law that have already
arisen and that may arise in the future, the outcome of these
legal proceedings is uncertain at this point. Based on
information available to it at present, the Company cannot
reasonably estimate a range of potential loss, if any, for these
actions because its possible liability depends on an assessment of
the appropriate measure of damages, if the Company were to be
found liable and whether, in the case of the Vasquez action, a
class is certified and, if so, the size of any such class.
Accordingly, the Company has not recognized any liability
associated with these actions.
CAREER EDUCATION: "Lilley" Suit Proceedings Still Stayed
--------------------------------------------------------
Circuit court proceedings in the lawsuit captioned Lilley, et al.
v. Career Education Corporation, et al., remains stayed pending
an appeal on class certification, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On February 11, 2008, a class action complaint captioned Lilley,
et al. v. Career Education Corporation, et al., was filed in the
Circuit Court of Madison County, Illinois, naming as defendants
Career Education Corporation and Sanford-Brown College, Inc.
Plaintiffs filed amended complaints on September 5, 2008 and
September 24, 2010. The five plaintiffs named in the amended
complaint are former students who attended a medical assistant
program at Sanford-Brown College located in Collinsville,
Illinois. The class is alleged to be all persons who enrolled in
that program since July 1, 2003. The amended class action
complaint asserts claims for alleged violations of the Illinois
Private Business and Vocational Schools Act, for alleged unfair
conduct and deceptive conduct under the Illinois Consumer Fraud
and Deceptive Business Practices Act, as well as common law claims
of fraudulent misrepresentation and fraudulent omission.
In the amended complaint filed on September 24, 2010, the
plaintiffs allege that the school's enrollment agreements
contained false and misleading information regarding placement
statistics, job opportunities and salaries and that Admissions,
Financial Aid and Career Services personnel used standardized
materials that allegedly contained false and/or deceptive
information. Plaintiffs also allege that the school misused a
standardized admissions test to determine program placement when
the test was not intended for that purpose; failed to provide
allegedly statutorily required loan repayment information; and
misrepresented the transferability of credits. Plaintiffs seek
compensatory, treble and punitive damages, disgorgement and
restitution of all tuition monies received from medical assistant
students, attorneys' fees, costs and injunctive relief.
Defendants filed a motion to dismiss the amended complaint on
October 20, 2010. On October 27, 2010, the Court granted
defendants' motion with respect to plaintiffs' fraudulent omission
claims. The Court denied the motion with respect to the statutory
claims under the Private Schools Act and the Illinois Consumer
Fraud Act and the common law fraudulent misrepresentation claim.
By Order dated December 3, 2010, the Court certified a class
consisting of all persons who attended SBC in Collinsville,
Illinois and enrolled in the Medical Assisting Program during the
period from July 1, 2003, through November 29, 2010. This class
consists of approximately 2,300 members. Defendants filed a
petition for leave to appeal the trial court's class certification
order to the Fifth District Court of Appeals. On February 10,
2011, the Fifth District Court of Appeals granted defendants'
petition for leave to appeal. While that appeal is pending, all
proceedings in the Circuit Court are stayed.
Because of the many questions of fact and law that have already
arisen and that may arise in the future, the outcome of this legal
proceeding is uncertain at this point. Based on information
available to it at present, the Company cannot reasonably estimate
a range of potential loss, if any, for this action because of the
inherent difficulty in assessing the appropriate measure of
damages and the number of potential class members who might be
entitled to recover damages, if the Company were to be found
liable. Accordingly, the Company has not recognized any liability
associated with this action.
CAREER EDUCATION: To Execute Settlement Agreement in "Kelly" Suit
-----------------------------------------------------------------
Career Education Corporation will be executing an agreement in
connection with the settlement of the lawsuit filed by Edward J.
Kelly, et al., according to the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
On December 20, 2010, Edward J. Kelly, Jon Pizzica, and
Christopher Steinbrunn filed a collective action complaint,
captioned Kelly, et al. v. Career Education Corporation, et al.,
in the United States District Court for the Western District of
Pennsylvania against Career Education Corporation alleging that
CEC had violated the Fair Labor Standards Act ("FLSA") by failing
to pay plaintiffs for all of the hours that they worked, including
overtime hours (the "Kelly lawsuit"). Plaintiffs formerly worked
as Admissions Representatives at Le Cordon Bleu Institute of
Culinary Arts, Inc. in Pittsburgh, Pennsylvania ("LCB-
Pittsburgh"). The Kelly lawsuit is brought on behalf of all
current and former Admissions Representatives at all of CEC's
culinary arts strategic business units for the period commencing
three years prior to the filing of the collective action complaint
to the present. In their collective action complaint, plaintiffs
in the Kelly lawsuit seek unspecified back overtime pay,
attorneys' fees and costs, and liquidated and/or compensatory
damages. On March 8, 2011, the Court granted conditional
collective action certification in the Kelly lawsuit as to
Admissions Representatives who worked at LCB-Pittsburgh only.
Notice of the Kelly lawsuit has not been disseminated to the
class. As of April 20, 2011, 11 other former Admissions
Representatives who worked at LCB-Pittsburgh joined the litigation
by filing consent to join forms with the Court.
On April 19, 2011, CEC, without admitting any liability, reached
an agreement in principle to settle both the Kelly lawsuit and a
related Pennsylvania state court lawsuit. The settlement will
require the consolidation of the lawsuits and approval by the
Court. The settlement will resolve the consolidated lawsuit on a
collective action and class action basis. As a result of the
settlement, and following the execution thereof, both the Kelly
and the related state court lawsuit will be dismissed with
prejudice. The Company recorded a charge of $0.2 million which
represents its best estimate as of June 30, 2011.
No further updates were reported in the Company's latest SEC
filing.
CAREER EDUCATION: "Surrett" Parties Still Engaged in Discovery
--------------------------------------------------------------
Parties to the lawsuit captioned Surrett, et al. v. Western
Culinary Institute, Ltd., and Career Education Corporation are
still currently engaged in merits discovery, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On March 5, 2008, original named plaintiffs Shannon Gozzi and
Megan Koehnen filed a complaint in Portland, Oregon, in the
Circuit Court of the State of Oregon in and for Multnomah County.
Plaintiffs filed the complaint individually and as a putative
class action and alleged two claims for equitable relief:
violation of Oregon's Unlawful Trade Practices Act ("UTPA") and
unjust enrichment. Plaintiffs filed an amended complaint on April
10, 2008, which added two claims for money damages: fraud and
breach of contract. Plaintiffs allege that the Company's
subsidiary, Western Culinary Institute, Ltd. ("WCI") made a
variety of misrepresentations to them, relating generally to WCI's
placement statistics, students' employment prospects upon
graduation from WCI, the value and quality of an education at WCI,
and the amount of tuition students could expect to pay as compared
to salaries they may earn after graduation. WCI subsequently
moved to dismiss certain of plaintiffs' claims under Oregon's
UTPA; that motion was granted on September 12, 2008. Shannon
Gozzi subsequently withdrew as a named plaintiff and former named
plaintiff Meghan Koehnen's claims have been dismissed. Jennifer
Schuster became a plaintiff, and when Ms. Koehnen's claims were
dismissed, she became the sole named plaintiff. The parties
completed written discovery on class issues. On February 5, 2010,
the Court entered a formal Order granting class certification on
part of plaintiff's UTPA and fraud claims purportedly based on
omissions, denying certification of the rest of those claims and
denying certification of the breach of contract and unjust
enrichment claims. The class consists of students who enrolled at
WCI between March 5, 2006, and March 1, 2010, excluding those who
dropped out or were dismissed from the school for academic
reasons. The class consists of approximately 2,600 members.
Because Ms. Schuster was not a member of the certified class (she
enrolled before March 5, 2006), plaintiff's counsel recently
substituted in a new class representative for her named Nathan
Surrett pursuant to a stipulation among the parties which
provided, among other things, that WCI retains the right to
challenge whether the new class representative is adequate (with
plaintiff retaining the burden of proof on that issue). Plaintiffs
filed a Fifth Amended Complaint on December 7, 2010, which
included individual and class allegations by Mr. Surrett. Class
notice was sent out on April 22, 2011, and the opt-out period
expired on June 20, 2011.
The parties are currently engaged in merits discovery.
Because of the many questions of fact and law that have already
arisen, and that may arise in the future, the outcome of this
legal proceeding is uncertain at this point. Based on information
available to it at present, the Company cannot reasonably estimate
a range of potential loss, if any, for this action because of the
inherent difficulty in assessing the appropriate measure of
damages and the number of class members who might be entitled to
recover damages, if the Company were to be found liable.
Accordingly, the Company has not recognized any liability
associated with this action.
CENDANT CORP: Continues to Defend "Frank Cooper" Class Suit
-----------------------------------------------------------
Cendant Corporation and Century 21 Real Estate Corporation
continue to defend themselves against a class action lawsuit in
New Jersey alleging consumer fraud, according to Realogy Corp.'s
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
In 2002, Frank K. Cooper Real Estate #1, Inc. filed a putative
class action against Cendant Corp. and Cendant's subsidiary,
Century 21 Real Estate Corporation (N.J. Super. Ct. L. Div.,
Morris County, New Jersey). The complaint alleges breach of
certain provisions of the Real Estate Franchise Agreement entered
into between Century 21 and the plaintiffs, breach of the implied
duty of good faith and fair dealing, violation of the New Jersey
Consumer Fraud Act and breach of certain express and implied
fiduciary duties. The complaint alleges, among other things, that
Cendant diverted money and resources from Century 21 franchisees
and allotted them to NRT owned brokerages and otherwise improperly
charged expenses to advertising funds. The complaint seeks
unspecified compensatory and punitive damages, injunctive relief,
interest, attorney's fees and costs. The New Jersey Consumer
Fraud Act, if applicable, provides for treble damages, attorney's
fees and costs as remedies for violation of the Act. On
August 17, 2010, the court granted plaintiffs' renewed motion to
certify a class. The certified class includes Century 21
franchisees at any time between August 1, 1995 and April 17, 2002
whose franchise agreements contain New Jersey choice of law and
venue provisions and who have not executed releases releasing the
claim (unless the release was a provision of a franchise renewal
agreement).
A case management order was entered on November 29, 2010, that
includes, among other deadlines, a trial date of April 16, 2012.
On December 20, 2010, the court held a status conference to
address plaintiffs' motion regarding notice to be issued to the
class, the language of the notice, publication of the notice and
how class members can opt out of the class. As directed by a
court order, Century 21 has delivered to plaintiffs' counsel and
Rust Consulting, Inc. (the "Notice Administrator") lists of the
names and contact information for (1) franchisees that meet the
class definition and (2) franchisees that would have met the class
definition but for the fact that they signed a waiver of claims
against Century 21. Pursuant to the court order, the Notice
Administrator has advised the Company that the notice of pendency
of the action was mailed to possible class members on March 4,
2011, and a summary of that notice has been published in various
print and online media. Following many months of effort directed
at class identification, the case has now moved to very active
discovery on the merits. Motions were made seeking to enjoin
certain Century 21 contractual practices associated with
amendments or financial settlements that result in franchisees
signing waivers of claims asserted on their behalf as class
members in the Cooper Litigation. On June 3, 2011, the court
denied these motions. Plaintiffs have filed a motion to extend
discovery by 120 days and have filed a motion seeking to
invalidate two categories of releases that the Company relied upon
in excluding approximately 1,750 former franchisees from the
class. Specifically, plaintiffs seek to include 250 franchisees
who had signed term extension documents that the plaintiffs allege
were obtained as a provision of a franchise renewal agreement.
Plaintiffs also seek to include about 1,750 franchisees (including
the aforementioned 250), alleging that they did not release claims
against Cendant because the releases included the word "affiliate"
rather than "parent" as a released party. The Company opposed
these motions. At a hearing held on July 22, 2011, the court
largely denied the motion to extend discovery and, following a
hearing held on July 25, 2011, is reviewing the motion relating to
the invalidation of certain releases. This class action involves
substantial, complex litigation. Class action litigation is
inherently unpredictable and subject to significant uncertainties.
The resolution of the Cooper Litigation could result in
substantial losses and there can be no assurance that such
resolution will not have a material adverse effect on the
Company's results of operations, financial condition or liquidity.
CLEAR CHANNEL: Expert Discovery in "Live Concerts" Suits Ongoing
----------------------------------------------------------------
Expert discovery is currently ongoing in connection with the class
action lawsuits filed against Clear Channel Communications Inc.
and its subsidiary, according to the Company's August 3, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarterly period ended June 30, 2011.
The Company and a subsidiary are co-defendants with Live Nation
(which was spun off as an independent company in December 2005) in
22 putative class actions filed by different named plaintiffs in
various district courts throughout the country beginning in May
2006. These actions generally allege that the defendants
monopolized or attempted to monopolize the market for "live rock
concerts" in violation of Section 2 of the Sherman Act. Plaintiffs
claim that they paid higher ticket prices for defendants' "rock
concerts" as a result of defendants' conduct. They seek damages
in an undetermined amount. On April 17, 2006, the Judicial Panel
for Multidistrict Litigation centralized these class action
proceedings in the Central District of California. The district
court has certified classes in five "template" cases involving
five regional markets: Los Angeles, Boston, New York, Chicago and
Denver. Fact discovery has closed, and expert discovery is
ongoing.
CLECO POWER: Continues to Defend Customer Class Suits in Louisiana
------------------------------------------------------------------
Cleco Power LLC continues to defend itself from two class action
lawsuits filed by customers in Louisiana, according to the
Company's August 3, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
On March 9, 2010, a complaint was filed in the 27th Judicial
District Court of St. Landry Parish, State of Louisiana, on behalf
of three Cleco Power customers in Opelousas, Louisiana. The
complaint alleges that Cleco Power overcharged the plaintiffs by
applying to customers in Opelousas the same retail rates as Cleco
Power applies to all of its retail customers. The plaintiffs
allege that Cleco Power should have established, solely for
customers in Opelousas, retail rates that are separate and
distinct from the retail rates that apply to other customers of
Cleco Power and that Cleco Power should not collect from customers
in Opelousas the storm surcharge approved by the LPSC following
Hurricanes Katrina and Rita. Cleco Power currently operates in
Opelousas pursuant to a franchise granted to Cleco Power by the
City of Opelousas in 1986 and an operating and franchise agreement
dated May 14, 1991, pursuant to which Cleco Power operates its own
electric facilities and leases and operates electric facilities
owned by the City of Opelousas. In April 2010, Cleco Power filed
a petition with the LPSC appealing to its expertise in declaring
that the ratepayers of Opelousas have been properly charged the
rates that are applicable to Cleco Power's retail customers and
that no overcharges have been collected. In addition, Cleco Power
removed the purported class action lawsuit filed on behalf of
Opelousas electric customers from the state court to the U.S.
District Court for the Western District of Louisiana in April
2010, so that it could be properly addressed under the terms of
the Class Action Fairness Act. On May 11, 2010, a second class
action lawsuit was filed in the 27th Judicial District Court of
St. Landry Parish, State of Louisiana, repeating the allegations
of the first complaint, which was submitted on behalf of 249
Opelousas residents. Cleco Power has responded in the same manner
as with the first class action lawsuit. On September 29, 2010,
the federal court remanded both cases to the state court in which
they were originally filed for further proceedings. On
January 21, 2011, the presiding judge in the state court
proceeding ruled that the jurisdiction to hear the two class
actions resides in the state court and not with the LPSC as argued
by both Cleco and the LPSC Staff. Both Cleco and the LPSC Staff
appealed this ruling to the Third Circuit Court of Appeals for the
State of Louisiana, and await a decision by such court. On
February 7, 2011, the administrative law judge in the LPSC
proceeding ruled that the LPSC has jurisdiction to decide the
claims raised by the class action plaintiffs. The customers have
not stated an amount of overcharges they seek to recover. In view
of the uncertainty of the claims, management is not able to
predict or give a reasonable estimate of the possible range, if
any, of these claims.
COMCAST CORP: Class Certification Appeal Remains Pending
--------------------------------------------------------
Comcast Corporation's interlocutory appeal from a class
certification decision remains pending with the U.S. Court of
Appeals for the Third Circuit, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
Comcast is a defendant in two purported class actions originally
filed in December 2003 in the United States District Courts for
the District of Massachusetts and the Eastern District of
Pennsylvania. The potential class in the Massachusetts case, which
has been transferred to the Eastern District of Pennsylvania, is
Comcast's customer base in the "Boston Cluster" area, and the
potential class in the Pennsylvania case is Comcast's customer
base in the "Philadelphia and Chicago Clusters," as those terms
are defined in the complaints. In each case, the plaintiffs allege
that certain customer exchange transactions with other cable
providers resulted in unlawful horizontal market restraints in
those areas and seek damages under antitrust statutes, including
treble damages.
Classes of Philadelphia Cluster and Chicago Cluster customers were
certified in May 2007 and October 2007, respectively. In March
2009, as a result of a Third Circuit Court of Appeals decision
clarifying the standards for class certification, the order
certifying the Philadelphia Cluster class was vacated without
prejudice to the plaintiffs filing a new motion. In January 2010,
in its decision on the plaintiffs' new motion, the Eastern
District of Pennsylvania certified a class subject to certain
limitations. In June 2010, the Third Circuit Court of Appeals
granted Comcast's petition for an interlocutory appeal from the
class certification decision. Oral agreement on the appeal was
held in January 2011. In March 2010, Comcast moved for summary
judgment dismissing all of the plaintiffs' claims in the
Philadelphia Cluster; the summary judgment motion is stayed
pending the class certification appeal. The plaintiffs' claims
concerning the other two clusters are stayed pending determination
of the Philadelphia Cluster claims.
COMCAST CORP: Petition for Rehearing Pending in "Unbundling" Suits
------------------------------------------------------------------
A petition for rehearing is currently pending following
affirmation of an order dismissing a class action complaint
against Comcast Corporation, according to the Company's August 3,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
Comcast is also among the defendants in a purported class action
filed in the United States District Court for the Central District
of California in September 2007. The potential class is comprised
of all persons residing in the United States who have subscribed
to an expanded basic level of video service provided by one of the
defendants. The plaintiffs allege that the defendants who produce
video programming have entered into agreements with the defendants
who distribute video programming via cable and satellite
(including Comcast), which preclude the distributor defendants
from reselling channels to customers on an "unbundled" basis in
violation of federal antitrust laws. The plaintiffs seek treble
damages and injunctive relief requiring each distributor defendant
to resell certain channels to its customers on an "unbundled"
basis. In October 2009, the Central District of California issued
an order dismissing the plaintiffs' complaint with prejudice. In
June 2011, a panel of the Ninth Circuit Court of Appeals affirmed
the District Court's order. In July 2011, the plaintiffs filed a
petition for a panel rehearing and a rehearing en banc.
COMCAST CORP: Moves to Compel Arbitration in Consolidated Suit
--------------------------------------------------------------
Comcast Corporation's motion to compel arbitration of most claims
asserted in a consolidated class action lawsuit filed by cable
customers is pending, according to the Company's August 3, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
Comcast is the defendant in 22 purported class actions filed in
federal district courts throughout the country. All of these
actions have been consolidated by the Judicial Panel on
Multidistrict Litigation in the United States District Court for
the Eastern District of Pennsylvania for pre-trial proceedings. In
a consolidated complaint filed in November 2009 on behalf of all
plaintiffs in the multidistrict litigation, the plaintiffs allege
that Comcast improperly "tie" the rental of set-top boxes to the
provision of premium cable services in violation of Section 1 of
the Sherman Antitrust Act, various state antitrust laws and
unfair/deceptive trade practices acts in California, Illinois and
Alabama. The plaintiffs also allege a claim for unjust enrichment
and seek relief on behalf of a nationwide class of Comcast's
premium cable customers and on behalf of subclasses consisting of
premium cable customers from California, Alabama, Illinois,
Pennsylvania and Washington. In January 2010, Comcast moved to
compel arbitration of the plaintiffs' claims for unjust enrichment
and violations of the unfair/deceptive trade practices acts of
Illinois and Alabama. In September 2010, the plaintiffs filed an
amended complaint alleging violations of additional state
antitrust laws and unfair/deceptive trade practices acts on behalf
of new subclasses in Connecticut, Florida, Minnesota, Missouri,
New Jersey, New Mexico and West Virginia. In the amended
complaint, plaintiffs omitted their unjust enrichment claim, as
well as their state law claims on behalf of the Alabama, Illinois
and Pennsylvania subclasses. In June 2011, the plaintiffs filed
another amended complaint alleging only violations of Section 1 of
the Sherman Antitrust Act, antitrust law in Washington and
unfair/deceptive trade practices acts in California and
Washington. The plaintiffs seek relief on behalf of a nationwide
class of Comcast's premium cable customers and on behalf of
subclasses consisting of premium cable customers from California
and Washington. In July 2011, Comcast moved to compel arbitration
of most of the plaintiffs' claims and to stay the remaining claims
pending arbitration.
DENDREON CORP: Hagens Berman Files Securities Class Action
----------------------------------------------------------
Seattle-based Hagens Berman Sobol Shapiro LLP on August 5 filed a
class-action lawsuit in the United States District Court for the
Western District of Washington on behalf of shareholders of
Dendreon Corp. after the company's stock plunged by more than $22
per share when the company withdrew its earnings guidance for the
entire fiscal year based on failure to market and sell its
prostate cancer therapy Provenge.
After the news was released August 3, 2011, the Seattle-based
company's stock dropped by over 60 percent, reducing the company's
market value by over $3 billion.
According to the suit, Dendreon executives repeatedly issued false
and misleading statements to the investment community regarding
Provenge, leading investors to believe that the medical community
would quickly adopt the drug to treat prostate cancer. The suit
contends that the company knew -- or recklessly disregarded
knowledge -- that the drug's high price would severely hamper its
adoption.
"We intend to prove that Dendreon painted a very optimistic view
of Provenge to the market when in fact the drug's high price
limited its potential for wider adoption," said Steve Berman,
attorney for the plaintiffs. "When the sales numbers illustrated
this incontrovertible truth, the company was forced to own up to
the drug's failure, devastating investors across the country."
Dendreon previously projected that it would earn between $350 and
$400 million on sales of Provenge. According to media sources,
the drug cost over $93,000 per patient, and only extends the lives
of prostate cancer patients by an average of four months.
According to the same reports, doctors have adopted the drug
slowly for fear of delays in reimbursement for the costly
treatment.
The lawsuit also claims that several insiders within Dendreon sold
shares of the company while the price was artificially inflated,
including Mitchell H. Gold, the company's Chief Executive Officer
and President, who sold 128,000 shares for $4.84 million, SEC
records show.
The lawsuit seeks to recover damages on behalf of all purchasers
of common stock of Dendreon between January 7, 2011, and August 3,
2011.
Investors in Dendreon who purchased common shares between
January 7, 2011, and August 3, 2011, are encouraged to contact
Hagens Berman at DNDN@hbsslaw.com or by phone at 206-623-7292.
Additional information is also available at
http://www.hbsslaw.com/dendreon
About Hagens Berman
Seattle-based Hagens Berman Sobol Shapiro LLP --
http://www.hbsslaw.com-- is one of the top class-action law firms
in the nation, with offices in Boston, Chicago, Colorado Springs,
Los Angeles, Minneapolis, New York, Phoenix, San Francisco and
Washington, D.C. Founded in 1993, the firm represents plaintiffs
in class actions and multi-state, large-scale litigation that seek
to protect the rights of investors, consumers, workers and
whistleblowers.
DINEEQUITY INC: Files Stay Request Pending Petition for Rehearing
-----------------------------------------------------------------
DineEquity, Inc., seeks a stay in the collective action captioned
Gerald Fast v. Applebee's International, Inc., pending its
petition for rehearing with the Supreme Court, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
The Company is currently defending a collective action in United
States District Court for the Western District of Missouri,
Central Division filed on July 14, 2006 under the Fair Labor
Standards Act styled Gerald Fast v. Applebee's International,
Inc., in which named plaintiffs claim that tipped workers in
company restaurants perform excessive amounts of non-tipped work
for which they should be compensated at the minimum wage. The
court has conditionally certified a nationwide class of servers
and bartenders who have worked in company-operated Applebee's
restaurants since June 19, 2004. Unlike a class action, a
collective action requires potential class members to "opt in"
rather than "opt out." On February 12, 2008, 5,540 opt-in forms
were filed with the court.
In cases of this type, conditional certification of the plaintiff
class is granted under a lenient standard. On January 15, 2009,
the Company filed a motion seeking to have the class de-certified
and the plaintiffs filed a motion for summary judgment, both of
which were denied by the court.
The parties stipulated to a bench trial which was set to begin on
September 8, 2009 in Jefferson City, Missouri. Just prior to
trial, however, the court vacated the trial setting in order to
submit key legal issues to the Eighth Circuit Court of Appeals for
review on interlocutory appeal. On April 21, 2011, the Eighth
Circuit Court of Appeals issued its decision on the interlocutory
appeal, affirming the trial court's ruling that the tip credit is
subject to a 20% limit on "related duties in a tipped occupation
that are not themselves tip producing" based on guidance in the
Department of Labor's Field Operations Handbook. On May 5, 2011,
the Company filed a petition for rehearing en banc with the Eighth
Circuit, which was denied on July 6, 2011 with four judges
dissenting. The Company has filed for a stay in the Eighth
Circuit pending a request to the Supreme Court seeking review
there.
The Company believes it has meritorious defenses and intend to
vigorously defend this case. An estimate of the possible loss, if
any, or the range of the loss cannot be made and, therefore, the
Company has not accrued a loss contingency related to this matter.
DIRECT BRANDS: Sued in Calif. Over Deceptive Business Practices
---------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
Direct Brands and Book Span offer people a "one-time" membership
"deal" and then force them to buy stuff at inflated prices and
charge them penalties if they don't buy enough stuff.
A copy of the Complaint in Cornett v. Direct Brands, Inc., et al.,
Case No. 11-cv-01745 (S.D. Calif.) (Lorenz, J.), is available at:
http://www.courthousenews.com/2011/08/05/InternetScam.pdf
The Plaintiff is represented by:
Jay Edelson, Esq.
Rafey S. Balabanian, Esq.
Bradley M. Baglien, Esq.
Christopher L. Dore, Esq.
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, IL 60654
Telephone: (312) 589-6370
E-mail: jedelson@edelson.com
rbalabanian@edelson.com
bbaglien@edelson.com
cdore@edelson.com
- and -
Sean Reis, Esq.
EDELSON MCGUIRE LLC
30021 Tomas Street, Suite 300
Rancho Santa Margarita, CA 92688
Telephone: (949) 459-2124
E-mail: sreis@edelson.com
DPL INC: Enters Into Deal to Settle Consolidated Federal Action
---------------------------------------------------------------
DPL Inc. has entered into an agreement to settle a consolidated
federal action filed against the Company in connection with its
proposed merger with The AES Corporation, according to the
Company's August 3, 2011, Form 8-K filing with the U.S. Securities
and Exchange Commission.
Following the Company's announcement on April 20, 2011, that it
had entered into an Agreement and Plan of Merger dated April 19,
2011 with The AES Corporation and Dolphin Sub, Inc., a direct
wholly-owned subsidiary of Parent, twelve putative class action
lawsuits were filed in connection with the merger and the Merger
Agreement. One of these lawsuits was dismissed without prejudice
and the three federal lawsuits pending in the U.S. District Court
for the Southern District of Ohio were consolidated.
On July 29, 2011, the Company, the Company's directors, AES and
Merger Sub entered into a memorandum of understanding with the
plaintiffs in the consolidated federal action. The MOU reflects
an agreement in principle to settle the claims asserted in the
consolidated federal action. The MOU provides that in
consideration for the settlement of the consolidated federal
action, DPL will make certain supplemental disclosures concerning
the merger in the definitive proxy statement to be mailed to
shareholders in connection with DPL's annual shareholder meeting
at which the merger will be considered. The disclosures will
include a summary of the levered and unlevered free cash flows
used in the financial projections prepared by management of the
Company and in the discounted cash flow analysis prepared by the
Company's financial advisor. The MOU also provides that the
parties will work in good faith to complete reasonable and
appropriate confirmatory discovery as agreed to by the parties
prior to any shareholder vote on the merger and to enter into and
file with the District Court a stipulation of settlement and such
other related documentation as may be necessary and appropriate to
obtain prompt approval from the District Court and the dismissal
of the consolidated federal action with prejudice. After
submission of the stipulation of settlement, the District Court
will schedule a hearing regarding, among other things, approval of
the proposed settlement and any application by plaintiffs' counsel
for an award of attorneys' fees and expenses.
There can be no assurance that the merger will be consummated,
that the parties will ultimately enter into a stipulation of
settlement or that the District Court will approve the settlement
even if the parties enter into such stipulation. In such event,
the proposed settlement as contemplated by the MOU may be
terminated. The settlement will not affect the amount of the
merger consideration that DPL's shareholders are entitled to
receive in the merger.
DPL and its board of directors believe that these lawsuits are
without merit and are seeking to settle them to eliminate the
burden and expense of litigation and to provide additional
information to its shareholders at a time and in a manner that
would not cause any further delay in the annual meeting or the
consummation of the merger. Absent such settlement, DPL intends
to vigorously defend against all of the claims.
DUN & BRADSTREET: One Appeal From IPO Settlement Still Pending
--------------------------------------------------------------
The Dun & Bradstreet Corporation disclosed in its August 3, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011, that one appeal from the
approval of the settlement of 300 coordinated cases remains
pending.
On November 15, 2001, a putative shareholder class action lawsuit
was filed against Hoover's Inc. ("Hoover's"), now a subsidiary of
The Dun & Bradstreet Corp., certain of its then current and former
officers and directors (the "Individual Defendants"), and one of
the underwriters of Hoover's July 1999 initial public offering
("IPO"). The lawsuit was filed in the U.S. District Court for the
Southern District of New York on behalf of purchasers of Hoover's
stock between July 20, 1999 and December 6, 2000. The operative
complaint alleges violations of the Securities Act of 1933 and the
Securities Exchange Act of 1934 against Hoover's and the
Individual Defendants. Plaintiffs allege that the underwriter
allocated stock in Hoover's IPO to certain investors in exchange
for commissions and agreements by those investors to make
additional purchases of stock in the aftermarket at prices above
the IPO price. Plaintiffs allege that the prospectus for Hoover's
IPO was false and misleading because it did not disclose these
arrangements.
The defense of the action is being coordinated with more than 300
other nearly identical actions filed against other companies. The
parties in the approximately 300 coordinated cases, including the
Company's, reached a settlement. The insurers for the issuer
defendants in the coordinated cases will make the settlement
payment on behalf of the issuers, including Hoover's. Hoover's
would not be required to incur a liability as a result of this
settlement. On October 6, 2009, the Court granted final approval
to the settlement. Objectors to the settlement appealed its
approval to the United States Court of Appeals for the Second
Circuit. One appeal was dismissed and the second appeal was
remanded to the district court to determine if the appellant is a
class member with standing to appeal.
The Company believes that it does not have a probable or
reasonably possible loss exposure given the approved settlement.
However, given the appeals and the uncertainty of their impact
should they be granted, the Company currently cannot accurately
predict the ultimate outcome of the matter.
E.I. DUPONT: Mulls Recall of Imprelis Herbicide Amid Suits
----------------------------------------------------------
AboutLawsuits.com reports that DuPont is reportedly planning to
recall Imprelis herbicide, amid multiple class action lawsuits
alleging that the popular weedkiller is damaging and killing trees
at parks, golf courses and other properties throughout the United
States.
Since DuPont Imprelis herbicide was approved for sale in
October 2010, the manufacturer has received a growing number of
complaints that suggest it is doing more than just killing weeds,
causing thousands of mature trees to die.
Last month, the first DuPont Imprelis class action lawsuit was
filed in Delaware on behalf of several Michigan-area country clubs
and property owners. Since then, at least two other Imprelis
lawsuits have been filed on behalf of Iowa residents who allege
that the herbicide killed or damaged trees on their property.
While DuPont promoted Imprellis as a herbicide to target broadleaf
weeds, such as dandelioon, clover, plantains, wild violet and
ground ivy, the company advised consumers in June 2011 not to use
Imprellis near Norway spruce and white pines.
Since Memorial Day, Imprelis is suspected of causing the death of
thousands of shallow-rooted trees on lawns, golf courses, parks
and cemeteries throughout the U.S., including willows, poplars and
conifers. Lawsuits over Imprelis allege that tens of thousands of
additional trees are likely to be killed as a result of the
weedkiller.
Val Brickates Kennedy of MarketWatch, citing the U.S.
Environmental Protection Agency's Web site, said DuPont is
considering recalling and discontinuing the sale of its popular
weed-killer due to the complaints.
Reuters said the EPA is preparing to issue a "stop sale" order and
issued a letter to DuPont earlier last week strongly encouraging
the company to release thousands of confidential documents
involving the problems with Imprelis.
The letter informed DuPont that the EPA was concerned that the
company has claimed that certain toxicity studies for Imprelis
should not be made public because they are "confidential business
information." The EPA said it believes it is in the public
interest that the information be released. The agency informed
DuPont it also believes Imprelis' labeling is inadequate in
advising of the product's potential risk to large plants such as
trees.
DuPont has now confirmed that it plans to stop selling the
herbicide and is in discussions with the EPA on the most effective
way to implement an Imprelis recall, including a product return
and refund program.
ECOLAB INC: Nalco Merger Prompts Filing of Class Suit in Illinois
-----------------------------------------------------------------
Following Ecolab Inc. and Nalco Holding Company's announcement of
a planned merger transaction on July 20, 2011, on August 1, 2011,
Ecolab was served with a purported class action lawsuit, filed in
Illinois state court, by a purported Nalco shareholder alleging
that the directors of Nalco breached their fiduciary duties in
connection with Nalco's decision to enter into the merger
agreement, and that Ecolab aided and abetted such breach. The
plaintiff seeks declaratory and equitable relief, including an
order enjoining consummation of the merger. Ecolab believes that
the allegations are without merit and intends to vigorously defend
itself against the lawsuit, according to the Company's August 4,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarterly period ended June 30, 2011.
ELECTRONIC ARTS: Sued in N.J. Over Virtual Golfing Video Game
-------------------------------------------------------------
Nestor F. Sebastian at Courthouse News Service reports that
virtual golfers say in a class action that Electronic Arts sold
them the game "Tiger Woods PGA Tour 12: The Masters," without
telling them they would have to pay more money to complete the
virtual golf circuit. Tiger Woods is not a party to this
complaint.
Keith Casella sued EZ Corp. for the class, in Monmouth County
Court.
The game, which sells for $59.99, allows customers playing in
"career" mode to accumulate points and increase their rankings
through performance, giving them the power to buy virtual
equipment and upgrade their skills.
At issue is the "downloadable content" feature, which is
distributed through the Internet and released separately from the
main video game. The extra, downloadable content tracks cost $15
to $35, according to the complaint.
Mr. Casella says EA sells the games by claiming that "players can
participate in a succession of golf tournaments, particularly the
famed Augusta Masters tournament, as well as 14 additional
courses." But it never told customers that buying the game would
give them access to all of the courses in the Tiger 12 program
that players needed to complete the career tract.
"This undisclosed policy frustrates the legitimate expectations of
purchasers of TW 12 who had no reason to believe that they would
be unable to complete all of the TW12 courses in 'career' mode,"
Ms. Casella says.
He seeks class damages for breach of contract, breach of warranty
and consumer fraud.
A copy of the Complaint in Casella v. EA Corporation Inc., Case
No. 3319-11 (N.J. Super. Ct.), is available at:
http://www.courthousenews.com/2011/08/05/GolfGame.pdf
The Plaintiff is represented by:
Bruce D. Greenberg, Esq.
Marissa L. Quigley, Eq.
LITE DEPALMA GREENBERG, LLC
Two Gateway Center, 12th Floor
Newark, NJ 07102-5585
Telephone: (973) 623-3000
E-mail: bgreenberg@litedepalma.com
mquigley@litedepalma.com
EMDEON INC: Weiss & Lurie Files Securities Class Action
-------------------------------------------------------
Weiss & Lurie has filed a class action lawsuit on behalf of all
shareholders of Emdeon Inc. The complaint alleges, among other
things, that Emdeon's Board of Directors failed to act in the best
interest of shareholders and breached its fiduciary duties by
approving Blackstone Capital Partners VI L.P.'s attempt to acquire
a controlling interest in Emdeon for $19.00 per Emdeon share,
which will result in Emdeon becoming a private company. The
transaction is expected to close in second half of 2011, subject
to customary closing conditions, including shareholder and
regulatory approvals.
General Atlantic and Hellman & Friedman have agreed to vote shares
owned by them representing, in the aggregate, approximately 70% of
the Company's outstanding shares, in favor of the transaction.
However, Hellman & Friedman will maintain a significant minority
equity interest in Emdeon after the transaction is complete.
Furthermore, prior to the deal's announcement, several analysts
had set the price target for Emdeon stock at or above $20 per
share, with a high target of $21.00 per share.
If you own Emdeon shares and would like more information about
your rights as a shareholder or additional information concerning
the lawsuit, please contact Richard Acocelli or Michael Rogovin
either by e-mail at info@weisslurie.com or by telephone at (888)
593-4771.
Weiss & Lurie -- http://www.weisslurie.com-- is a national class
action and shareholder rights law firm with offices in New York
City and Los Angeles.
EXCO RESOURCES: Class Suit Remains Pending in Texas State Court
---------------------------------------------------------------
A consolidated class action lawsuit filed against Exco Resources,
Inc., remains pending in a Texas state court.
Since November 3, 2010, two putative shareholder class actions
have been filed against the Company and all of the members of its
board of directors in state district courts in Dallas County,
Texas. The purported class actions allege that the Company and
its directors breached fiduciary duties allegedly owed to public
shareholders by attempting to consummate a transaction based on
the proposal by Douglas H. Miller, the Company's Chairman and
Chief Executive Officer. Mr. Miller, on October 29, 2010,
indicated an interest in acquiring all of the outstanding shares
of the Company's stock not already owned by him for a cash
purchase price of $20.50 per share. The plaintiffs seek
unspecified damages, an order rescinding any transaction based on
Mr. Miller's proposal, an accounting from the defendants for any
profits or special benefits they may have received, and an award
of attorneys' fees and costs.
The Company's board of directors established a special committee
on November 4, 2010 comprised of two independent directors to,
among other things, evaluate and determine the Company's response
to the October 29, 2010 proposal and to evaluate the allegations
raised in the derivative lawsuits. The special committee retained
Kirkland & Ellis LLP and Jones Day as its legal counsel and
Barclays Capital, Inc. and Evercore Partners as its financial
advisors to assist it in, among other things, evaluating and
determining the Company's response to the proposal.
All of the state court proceedings have been consolidated into one
court and are now proceeding as a consolidated derivative action
and a consolidated class action. Separate lead plaintiffs'
counsel has been appointed for the consolidated derivative action
and the consolidated direct class action. Currently, there are
three lawsuits pending in Texas state and federal courts related
to Mr. Miller's proposal: the consolidated derivative action and
consolidated direct class action are pending in state court and
one derivative action is pending in federal court. On April 18,
2011, the Company and the members of the Board moved to dismiss
the consolidated state court derivative action.
There are no updates on the consolidated class action lawsuit,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
FARMERS INSURANCE: Settles Med-Pay Class Action in Oklahoma
-----------------------------------------------------------
Farmers Insurance on August 5 disclosed that it entered into a
settlement of a nationwide class action lawsuit, In Re Farmers
Med-Pay Litigation, pending in the District Court of Canadian
County, Oklahoma.
The settlement includes Farmers Insurance Company, Inc., Farmers
Insurance Exchange, Truck Insurance Exchange, Fire Insurance
Exchange, Mid-Century Insurance Company, Farmers Group, Inc.,
Illinois Farmers Insurance Company, and certain related entities.
The Court preliminarily approved the settlement on June 20, 2011.
Plaintiffs alleged that Farmers failed to pay reasonable expenses
for necessary medical services related to automobile accidents
under Medical Payments and Personal Injury Protection coverage in
automobile policies based on Farmers' use of certain claim
adjustment systems and procedures. Farmers denies all of
Plaintiffs' claims in the lawsuit. However, Farmers agreed to
resolve the lawsuit to avoid the burden and expense of continued
litigation.
The Settlement Class includes all persons who submitted claims for
payment of medical bills related to an automobile accident under
Med-pay or PIP coverage if (a) the claim was adjusted from
January 1, 2001 to February 9, 2009 based upon a recommended
reduction from Zurich Services Corporation, (b) the claim was paid
at less than the amount billed, and (c) total Med-pay or PIP
payments were less than the respective limits of coverage. The
Class also includes medical providers who were assigned the right
to assert these claims.
Individuals or medical providers with questions about the lawsuit
or the settlement can visit
http://www.MedpayClaimsAdministration.comor call 1-877-846-0588
for more information and to get a claim form. Claim forms must be
postmarked by December 29, 2011. Those affected by this
settlement can submit a claim for benefits or they can ask to be
excluded from, or object to, the settlement and its terms. The
deadline for exclusions and objections is October 29, 2011. The
Court will decide whether to grant final approval of the
Settlement at a Hearing currently scheduled for November 29, 2011.
Farmers Insurance Group of Companies -- http://www.farmers.com--
is the country's 3rd largest insurer of both personal lines
passenger automobile and homeowners insurance, and also provides a
wide range of other insurance and financial services products.
Farmers Insurance serves more than 10 million households with more
than 20 million individual policies across all 50 states through
the efforts of over 50,000 exclusive and independent agents and
nearly 24,000 employees.
FMC CORP: Still Defends Hydrogen Peroxide-Related Suits in Canada
-----------------------------------------------------------------
FMC Corporation continues to defend itself against lawsuits in
Canada, which were filed against hydrogen peroxide producers,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
In 2005, putative direct and indirect purchaser class action
complaints were filed against six U.S. hydrogen peroxide producers
(and certain of their foreign affiliates) in various federal and
state courts alleging violations of U.S. antitrust laws. In 2009,
FMC reached an agreement to settle with the direct purchaser class
for $10 million, with a pro rata credit for any claims the Company
might wind up paying to plaintiffs which decided to opt out of the
class action. The Company recorded the $10 million as a component
of "Restructuring and other charges (income)" in the Company's
consolidated statements of income for the year ended December 31,
2008. Some class members (predominantly paper producers) opted out
of this class settlement and pursued their claims directly against
FMC and the other defendants. FMC settled or obtained the
dismissal of these opt-out plaintiffs, as well as the indirect
purchaser class claims, for an aggregate net cost of $2.0 million,
which the Company recorded as a component of "Restructuring and
other charges (income)" in its consolidated statements of income
for the year ended December 31, 2010. As a result, all U.S.
litigation against FMC regarding alleged price fixing in the
hydrogen peroxide industry is now concluded.
The Company says that it still faces putative class actions along
with five other major hydrogen peroxide producers in provincial
courts in Ontario, Quebec and British Columbia under the laws of
Canada. The other five defendants have settled these claims for a
total of approximately $20.6 million. On September 28, 2009, the
Ontario Superior Court of Justice certified a class of direct and
indirect purchasers of hydrogen peroxide. The Company's motion
for leave to appeal the class certification decision was denied in
June 2010. Since then, the case has been largely dormant. The
plaintiffs have yet to provide the Company with a document
request, nor have they produced any documents. Since the
proceedings are in the preliminary stages with respect to the
merits, the Company is unable to develop a reasonable estimate of
its potential exposure of loss at this time. The Company intends
to vigorously defend these matters.
FPIC INSURANCE: Faces Suit Over Proposed Merger With TDC
--------------------------------------------------------
FPIC Insurance Group, Inc., is facing a putative stockholder class
action lawsuit in Florida over its proposed merger with The
Doctors Company, according to the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
On May 24, 2011, FPIC and The Doctors Company, a California
domiciled reciprocal inter-insurance exchange ("TDC"), and
Fountain Acquisition Corp., a Florida corporation and a wholly
owned subsidiary of TDC ("Merger Sub"), entered into an Agreement
and Plan of Merger, pursuant to which, subject to the satisfaction
or waiver of the conditions therein, Merger Sub will merge with
and into FPIC (the "Merger"), with FPIC surviving the Merger as
the surviving corporation and a wholly owned subsidiary of TDC.
On June 29, 2011, FPIC, FPIC's Board of Directors, TDC and a
subsidiary of TDC were named in a putative stockholder class
action complaint, styled Pierre Sasseville v. John Byers, et al.,
No. 16-2011-CA-005311-XXXX-MA, filed in the Circuit Court of the
Fourth Judicial Circuit, Duval County, Florida, by a purported
shareholder of FPIC. The complaint generally alleges that the
directors of FPIC breached their fiduciary duties by approving the
Merger for an allegedly unfair price and as the result of an
allegedly unfair sale process. The complaint also alleges that
FPIC, TDC and Merger Sub aided and abetted the directors' alleged
breaches of their fiduciary duties and that FPIC failed to provide
material information to shareholders with respect to the proposed
acquisition of FPIC by TDC. The complaint seeks, among other
things, a declaration that the action can proceed as a class
action, an order enjoining the completion of the acquisition,
attorneys' fees and such other relief as the court deems just and
proper.
FRESH DEL MONTE: Appeal in Hawaiian Suit Remains Pending
--------------------------------------------------------
An appeal from a final judgment dismissing all remaining claims
and terminating a class action lawsuit against Fresh Del Monte
Produce Inc.'s subsidiaries remains pending, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 1,
2011.
In 1997, plaintiffs from Costa Rica and Guatemala named certain of
the Company's U.S. subsidiaries in a purported class action in
Hawaii. On June 28, 2007, plaintiffs voluntarily dismissed the
Company's U.S. subsidiaries named in the action without ties to
Hawaii. At a hearing held on June 9, 2009, the court granted
summary judgment in favor of the Company's remaining U.S.
subsidiaries with ties to Hawaii, holding that the claims of the
remaining plaintiffs are time-barred. A final judgment dismissing
all remaining claims and terminating the action was entered on
July 28, 2010. On August 24, 2010, plaintiffs filed a notice of
appeal. The appeal is fully briefed and remains pending.
No further updates were reported in the Company's latest SEC
filing.
FRESH DEL MONTE: Still Defends Extra Sweet Pineapple Litigation
---------------------------------------------------------------
Fresh Del Monte Produce Inc. continues to defend itself and its
subsidiaries from lawsuits commenced on behalf of direct and
indirect purchasers of Del Monte Gold(R) Extra Sweet pineapples,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
July 1, 2011.
On August 2, 2004, a consolidated complaint was filed against two
of the Company's subsidiaries in the U.S. District Court for the
Southern District of New York. This consolidated action was
brought as a putative class action on behalf of all direct and
indirect purchasers of Del Monte Gold(R) Extra Sweet pineapples
from March 1, 1996, through the present and merges four actions
brought by fruit wholesalers and two actions brought by individual
consumers. The consolidated complaint alleges claims for: (i)
monopolization and attempted monopolization; (ii) restraint of
trade; (iii) unfair and deceptive trade practices; and (iv) unjust
enrichment. On May 27, 2005, the Company's subsidiaries filed a
motion to dismiss the indirect and direct purchasers' claims for
unjust enrichment. On June 29, 2005, plaintiffs filed a joint
motion for class certification. On February 20, 2008, the court
denied plaintiffs' motion for class certification of the indirect
purchasers and only granted class certification of the direct
purchasers' claims for monopolization and attempted
monopolization, which was uncontested by the Company's
subsidiaries. Also on February 20, 2008, the court granted the
motion of the Company's subsidiaries to dismiss the direct
purchasers' claims for unjust enrichment and denied as moot the
motion to dismiss the indirect purchasers' state law claims on the
basis of the court's denial of plaintiffs' motion for class
certification of the indirect purchasers. On
August 13, 2008, the Company's subsidiaries filed a motion for
summary judgment on plaintiffs' remaining claims. Plaintiffs
filed an opposition to the motion on October 6, 2008, which the
Company's subsidiaries replied to on December 8, 2008. On
September 30, 2009, the court granted the motion for summary
judgment in favor of the Company's subsidiaries. On October 29,
2009, plaintiffs filed a notice of appeal. On November 3, 2010,
the appellate court affirmed the District Court's decision
granting summary judgment in favor of the Company's subsidiaries.
On March 5, 2004, an alleged individual consumer filed a putative
class action complaint against the Company's subsidiaries in the
state court of Tennessee on behalf of consumers who purchased
(other than for resale) Del Monte Gold(R) Extra Sweet pineapples
in Tennessee from March 1, 1996, to May 6, 2003. The complaint
alleges violations of the Tennessee Trade Practices Act and the
Tennessee Consumer Protection Act. On February 18, 2005, the
Company's subsidiaries filed a motion to dismiss the complaint.
On May 15, 2006, the court granted the motion in part, dismissing
plaintiffs' claim under the Tennessee Consumer Protection Act.
Between March 17, 2004, and March 18, 2004, three alleged
individual consumers separately filed putative class action
complaints against the Company and its subsidiaries in the state
court of California on behalf of residents of California who
purchased (other than for re-sale) Del Monte Gold(R) Extra Sweet
pineapples between March 1, 1996 and May 6, 2003. On November 9,
2005, the three actions were consolidated under one amended
complaint with a single claim for unfair competition in violation
of the California Business and Professional Code. On
September 26, 2008, plaintiffs filed a motion to certify a class
action. On August 20, 2009, the court denied class certification.
On October 19, 2009, plaintiffs filed a notice of appeal of the
court's order denying class certification, which appeal remains
pending.
On April 19, 2004, an alleged individual consumer filed a putative
class action complaint against the Company's subsidiaries in the
state court of Florida on behalf of Florida residents who
purchased (other than for re-sale) Del Monte Gold(R) Extra Sweet
pineapples between March 1, 1996, and May 6, 2003. The only
surviving claim under the amended complaint alleges violations of
the Florida Deceptive and Unfair Trade Practices Act relating only
to pineapples purchased since April 19, 2000. The Company's
subsidiaries filed an answer to the surviving claim on October 12,
2006. On August 5, 2008, plaintiffs filed a motion to certify a
class action. The Company's subsidiaries filed an opposition on
January 22, 2009, to which plaintiffs filed a reply on May 11,
2009.
No further updates were reported in the Company's latest SEC
filing.
KINDER MORGAN: Going Private Class Suits Settlement Now Final
-------------------------------------------------------------
The settlement of the consolidated cases against Kinder Morgan
Inc.'s subsidiary is now final and effective, according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2011.
Beginning on May 29, 2006, the day after the proposal for the
Going Private Transaction was announced, and in the days
following, eight putative Class Action lawsuits were filed in
Harris County (Houston), Texas and seven putative Class Action
lawsuits were filed in Shawnee County (Topeka), Kansas against,
among others, Kinder Morgan Kansas, Inc., its Board of Directors
(later dismissed), the Special Committee of the Board of
Directors, and several corporate officers.
The plaintiffs challenged the proposed transaction as inadequate
and unfair to Kinder Morgan Kansas, Inc.'s public stockholders.
They alleged that Kinder Morgan Kansas, Inc.'s Board of Directors
and certain members of senior management breached their fiduciary
duties and the Sponsor Investors aided and abetted the alleged
breaches of fiduciary duty in entering into the merger agreement.
They sought, among other things, to enjoin the merger, rescission
of the merger agreement, disgorgement of any improper profits
received by the defendants, and attorneys' fees.
On November 19, 2008, by agreement of the parties, the Texas trial
court issued an order staying all proceedings in the Texas actions
until such time as a final judgment shall be issued in the Kansas
actions. The effect of this stay is that the consolidated matters
will proceed only in the Kansas trial court.
On September 8, 2010, the parties entered into a $200 million
settlement agreement to resolve the consolidated class action
cases that were pending before the Kansas trial court. On
November 19, 2010, the settlement was approved by the Kansas trial
court, and in December 2010 the $200 million settlement amount was
paid into an escrow account that is subject to the jurisdiction of
the court.
On December 2, 2010, a Notice of Appeal of the Kansas trial
court's approval of the settlement was filed by Ernest Browne,
Jr., a former owner of 185 shares of Kinder Morgan Kansas, Inc.,
in the Court of Appeals for the State of Kansas at Case No.
11-105562-A. Browne filed an amended Notice of Appeal on
January 7, 2011. On March 30, 2011, Browne filed a Stipulation of
Dismissal of his appeal which was entered by the Kansas Court of
Appeals on March 31, 2011, ending the appeal of this matter. On
April 11, 2011, the Kansas trial court entered an order noting
that the settlement of these consolidated cases was now final and
effective.
In February 2011, the Company entered into a $45.8 million
settlement agreement with its Directors and Officers insurance
policy insurers (Insurers) regarding certain coverage for the
litigation. The Insurers made payments of $45.8 million to the
Company in March of 2011.
LOEWS CORP: Fairness Hearing in Antitrust Suit Set for September
----------------------------------------------------------------
A fairness hearing to determine the final settlement of a
consolidated class action lawsuit against Loews Corporation's
subsidiary is scheduled for September 2011, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In August 2005, CNA Financial Corporation and certain insurance
subsidiaries were joined as defendants, along with other insurers
and brokers, in multidistrict litigation pending in the United
States District Court for the District of New Jersey, In re
Insurance Brokerage Antitrust Litigation, Civil No. 04-5184. The
plaintiffs' consolidated class action complaint alleges bid
rigging and improprieties in the payment of contingent commissions
in connection with the sale of insurance that violated federal and
state antitrust laws, the federal Racketeer Influenced and Corrupt
Organizations Act and state common law. After discovery, the
District Court dismissed the federal antitrust claims and the RICO
claims, and declined to exercise supplemental jurisdiction over
the state law claims. The plaintiffs appealed the dismissal of
their complaint to the Third Circuit Court of Appeals. In August
2010, the Court of Appeals affirmed the District Court's dismissal
of the antitrust claims and the RICO claims against CNA and
certain insurance subsidiaries, but vacated the dismissal of one
portion of those claims against some other parties and remanded
them for further proceedings on motions to dismiss. The Court of
Appeals also vacated and remanded the dismissal of the state law
claims against CNA and certain insurance subsidiaries and other
parties to allow for further proceedings relating to motions to
dismiss before the District Court. In November 2010, CNA and
certain insurance subsidiaries filed in the district court a
motion to dismiss the remaining state law claims pending against
them. In March 2011, CNA and certain insurance subsidiaries, along
with certain other defendants, entered into a memorandum of
settlement understanding with the plaintiffs to settle all claims
asserted, or which could have been asserted, in the class action
lawsuit. After negotiating additional terms, the parties executed
final settlement documents and the plaintiffs filed a motion for
preliminary approval of the settlement in May 2011. In June 2011,
the Court entered an order preliminarily approving the settlement.
A fairness hearing is scheduled in September 2011 to determine
final settlement, after providing notice to the class and an
opportunity for any objections to be heard. As currently
structured, the settlement will not have a material impact on
CNA's results of operations.
MASTERCARD INC: Appeals Still Pending in New Mexico & California
----------------------------------------------------------------
MasterCard Incorporated continues to defend itself from appeals
filed in consumer class action lawsuits pending in New Mexico and
California, according to the Company's August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Commencing in October 1996, several class action suits were
brought by a number of U.S. merchants against MasterCard
International and Visa U.S.A., Inc. challenging certain aspects of
the payment card industry under U.S. federal antitrust law. Those
suits were later consolidated in the U.S. District Court for the
Eastern District of New York. The plaintiffs claimed that
MasterCard's "Honor All Cards" rule (and a similar Visa rule),
which required merchants who accept MasterCard cards to accept for
payment every validly presented MasterCard card, constituted an
illegal tying arrangement in violation of Section 1 of the Sherman
Act. Plaintiffs claimed that MasterCard and Visa unlawfully tied
acceptance of debit cards to acceptance of credit cards. In June
2003, MasterCard International signed a settlement agreement to
settle the claims brought by the plaintiffs in this matter, which
the Court approved in December 2003. In January 2005, the Second
Circuit Court of Appeals issued an order affirming the District
Court's approval of the settlement agreement thus making it final.
In July 2009, MasterCard International entered into an agreement
with the plaintiffs to prepay MasterCard International's remaining
payment obligations under the settlement agreement at a discount.
In August 2009, the court entered a final order approving the
prepayment agreement. The agreement became final pursuant to its
terms in September 2009 as there were no appeals of the court's
approval, and the prepayment was subsequently made in September
2009.
In addition, individual or multiple complaints have been brought
in nineteen different states and the District of Columbia alleging
state unfair competition, consumer protection and common law
claims against MasterCard International (and Visa) on behalf of
putative classes of consumers. The claims in these actions largely
mirror the allegations made in the U.S. merchant lawsuit and
assert that merchants, faced with excessive merchant discount
fees, have passed these overcharges to consumers in the form of
higher prices on goods and services sold. MasterCard has been
successful in dismissing cases in seventeen of the jurisdictions
as courts have granted MasterCard's motions to dismiss for failure
to state a claim or plaintiffs have voluntarily dismissed their
complaints. However, there are outstanding cases in New Mexico and
California. In June 2010, the court issued an order granting
MasterCard's motion to dismiss the complaint in the New Mexico
action. The plaintiffs have filed a notice of appeal of that
decision and briefing on the appeal has been completed. With
respect to the California state actions, in September 2009, the
parties to the California state court actions executed a
settlement agreement which required a payment by MasterCard of
$6 million, subject to approval by the California state court. In
August 2010, the court executed an order granting final approval
of the settlement, subsequent to which MasterCard made the payment
required by the settlement agreement. Appeals from the settlement
approval order were filed and briefing on the appeals is
completed.
At this time, it is not possible to determine the outcome of, or
estimate the liability related to, the remaining consumer cases
and no provision for losses has been provided in connection with
them. The consumer class actions are not covered by the terms of
the settlement agreement in the U.S. merchant lawsuit.
MASTERCARD INC: Continues to Defend Interchange Litigation
----------------------------------------------------------
MasterCard Incorporated remains a defendant in several class
action lawsuits arising from interchange fees in connection with
purchase transactions initiated with the payment system's cards,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
In June 2005, a purported class action lawsuit was filed by a
group of merchants in the U.S. District Court of Connecticut
against MasterCard International Incorporated, Visa U.S.A., Inc.,
Visa International Service Association and a number of member
banks alleging, among other things, that MasterCard's and Visa's
purported setting of interchange fees violates Section 1 of the
Sherman Act, which prohibits contracts, combinations and
conspiracies that unreasonably restrain trade. In addition, the
complaint alleges MasterCard's and Visa's purported tying and
bundling of transaction fees also constitutes a violation of
Section 1 of the Sherman Act. The suit seeks treble damages in an
unspecified amount, attorneys' fees and injunctive relief. Since
the filing of this complaint, there have been approximately fifty
similar complaints (the majority of which are styled as class
actions, although a few complaints are on behalf of individual
merchant plaintiffs) filed on behalf of merchants against
MasterCard and Visa (and in some cases, certain member banks) in
federal courts in California, New York, Wisconsin, Pennsylvania,
New Jersey, Ohio, Kentucky and Connecticut. In October 2005, the
Judicial Panel on Multidistrict Litigation issued an order
transferring these cases to Judge Gleeson of the U.S. District
Court for the Eastern District of New York for coordination of
pre-trial proceedings in MDL No. 1720. In April 2006, the group of
purported class plaintiffs filed a First Amended Class Action
Complaint. Taken together, the claims in the First Amended Class
Action Complaint and in the complaints brought on the behalf of
the individual merchants are generally brought under both Section
1 of the Sherman Act and Section 2 of the Sherman Act, which
prohibits monopolization and attempts or conspiracies to
monopolize a particular industry. Specifically, the complaints
contain some or all of the following claims: (1) that MasterCard's
and Visa's setting of interchange fees (for both credit and off-
line debit transactions) violates Section 1 of the Sherman Act;
(2) that MasterCard and Visa have enacted and enforced various
rules, including the no surcharge rule and purported anti-steering
rules, in violation of Section 1 or 2 of the Sherman Act; (3) that
MasterCard's and Visa's purported bundling of the acceptance of
premium credit cards to standard credit cards constitutes an
unlawful tying arrangement; and (4) that MasterCard and Visa have
unlawfully tied and bundled transaction fees. In addition to the
claims brought under federal antitrust law, some of these
complaints contain certain unfair competition law claims under
state law. These interchange-related litigations seek treble
damages, as well as attorneys' fees and injunctive relief. In June
2006, MasterCard answered the complaint and moved to dismiss or,
alternatively, moved to strike the pre-2004 damage claims that
were contained in the First Amended Class Action Complaint and
moved to dismiss the Section 2 claims that were brought in the
individual merchant complaints. In January 2008, the district
court dismissed the plaintiffs' pre-2004 damage claims. In May
2008, the court denied MasterCard's motion to dismiss the Section
2 monopolization claims. Fact discovery has been proceeding and
was generally completed by November 2008. Briefs have been
submitted on plaintiffs' motion for class certification. The court
heard oral argument on the plaintiffs' class certification motion
in November 2009. The parties are awaiting a decision on the
motion.
In January 2009, the class plaintiffs filed a Second Consolidated
Class Action Complaint. The allegations and claims in this
complaint generally mirror those in the first amended class action
complaint although plaintiffs have added additional claims brought
under Sections 1 and 2 of the Sherman Act against MasterCard, Visa
and a number of banks alleging, among other things, that the
networks and banks have continued to fix interchange fees
following each network's initial public offering. In March 2009,
MasterCard and the other defendants in the action filed a motion
to dismiss the Second Consolidated Class Action Complaint in its
entirety, or alternatively, to narrow the claims in the complaint.
The parties have fully briefed the motion and the court heard oral
argument on the motion in November 2009. The parties are awaiting
decisions on the motions.
In July 2006, the group of purported class plaintiffs filed a
supplemental complaint alleging that MasterCard's initial public
offering of its Class A Common Stock in May 2006 (the "IPO") and
certain purported agreements entered into between MasterCard and
its member financial institutions in connection with the IPO: (1)
violate Section 7 of the Clayton Act because their effect
allegedly may be to substantially lessen competition, (2) violate
Section 1 of the Sherman Act because they allegedly constitute an
unlawful combination in restraint of trade and (3) constitute a
fraudulent conveyance because the member banks are allegedly
attempting to release without adequate consideration from the
member banks MasterCard's right to assess the member banks for
MasterCard's litigation liabilities in these interchange-related
litigations and in other antitrust litigations pending against it.
The plaintiffs seek unspecified damages and an order reversing and
unwinding the IPO. In September 2006, MasterCard moved to dismiss
all of the claims contained in the supplemental complaint. In
November 2008, the district court granted MasterCard's motion to
dismiss the plaintiffs' supplemental complaint in its entirety
with leave to file an amended complaint. In January 2009, the
class plaintiffs repled their complaint directed at MasterCard's
IPO by filing a First Amended Supplemental Class Action Complaint.
The causes of action in the complaint generally mirror those in
the plaintiffs' original IPO-related complaint although the
plaintiffs have attempted to expand their factual allegations
based upon discovery that has been garnered in the case. The class
plaintiffs seek treble damages and injunctive relief including,
but not limited to, an order reversing and unwinding the IPO. In
March 2009, MasterCard filed a motion to dismiss the First Amended
Supplemental Class Action Complaint in its entirety. The parties
have fully briefed the motion to dismiss and the court heard oral
argument on the motion in November 2009. The parties are awaiting
a decision on the motion. In July 2009, the class plaintiffs and
individual plaintiffs served confidential expert reports detailing
the plaintiffs' theories of liability and alleging damages in the
tens of billions of dollars. The defendants served their expert
reports in December 2009 rebutting the plaintiffs' assertions both
with respect to liability and damages. In February 2011, both the
defendants and the plaintiffs served a number of dispositive
motions seeking summary judgment on all or portions of the claims
in the complaints. Briefing on these motions was completed in July
2011. The court has scheduled a trial date of September 12, 2012.
The trial date is subject to further delay based upon the timing
of any rulings on the outstanding motions by the parties and any
objections or appeals of those decisions along with other factors.
MasterCard and the other defendants have been participating in
separate court-recommended mediation sessions with the individual
merchant plaintiffs (who account for less than 5% of the purchase
volume of the class plaintiffs) and the class plaintiffs. Although
substantial progress has been made in the mediation with the
individual merchant plaintiffs, there has not been similar
progress with the class plaintiffs. In particular, the class
plaintiffs' confidential demands to MasterCard include
unacceptable financial components as well as unacceptable changes
to MasterCard's business practices and, accordingly, MasterCard
cannot ascertain whether the mediation or any settlement efforts
will be successful. As a result of, among other things, varied
progress in mediation and settlement negotiations, numerous yet-
unresolved motions in the proceedings, and the uncertainty of the
potential outcomes of these and related issues, an estimate of a
reasonably possible loss is not possible to ascertain at this
time.
On February 7, 2011, MasterCard and MasterCard International
Incorporated entered into each of: (1) an omnibus judgment sharing
and settlement sharing agreement with Visa Inc., Visa U.S.A. Inc.
and Visa International Service Association and a number of member
banks; and (2) a MasterCard settlement and judgment sharing
agreement with a number of member banks. The agreements provide
for the apportionment of certain costs and liabilities which
MasterCard, the Visa parties and the member banks may incur,
jointly and/or severally, in the event of an adverse judgment or
settlement of one or all of the cases in the interchange merchant
litigations. Among a number of scenarios addressed by the
agreements, in the event of a global settlement involving the Visa
parties, the member banks and MasterCard, MasterCard would pay 12%
of the monetary portion of the settlement. In the event of a
settlement involving only MasterCard and the member banks with
respect to their issuance of MasterCard cards, MasterCard would
pay 36% of the monetary portion of such settlement.
In October 2008, the Antitrust Division of the DOJ issued a civil
investigative demand to MasterCard and other payment industry
participants seeking information regarding certain rules relating
to merchant point of acceptance rules. Subsequently, MasterCard
received requests for similar information from ten State Attorneys
General. In October 2010, MasterCard, the DOJ and seven of the
State Attorneys General executed a stipulation and proposed final
judgment, subject to court review and approval, pursuant to which
MasterCard agreed to make certain modifications to its rules to
conform to MasterCard's existing business practices, and therefore
to specify, among other things, the ways in which merchants may
steer customers to preferred payment forms. On July 20, 2011, the
court approved the settlement. The settlement resolves the DOJ's
investigation, and all ten State Attorneys General have closed
their investigations of MasterCard.
MASTERCARD INC: Continues to Defend Price-Fixing Suits in Canada
----------------------------------------------------------------
MasterCard Incorporated continues to defend itself against class
action lawsuits pending in Canada alleging that it and other banks
engaged in a price-fixing conspiracy, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
In December 2010, the Canadian Competition Bureau (the "CCB")
filed an application with the Canadian Competition Tribunal to
strike down certain MasterCard rules related to interchange fees,
including the "honor all cards" and "no surcharge" rules. Also in
December 2010, MasterCard learned that a purported class action
lawsuit had been commenced against it in Quebec on behalf of
Canadian merchants and consumers. That suit essentially repeats
the allegations and arguments of the CCB application to the
Canadian Competition Tribunal and seeks compensatory and punitive
damages in unspecified amounts, as well as injunctive relief. In
March 2011, a second purported class action lawsuit was commenced
in British Columbia against MasterCard, Visa and a number of large
Canadian banks, and in May 2011 a third purported class action
lawsuit was commenced in Ontario against the same defendants.
These suits allege that MasterCard, Visa and the banks have
engaged in a price fixing conspiracy to increase or maintain the
fees paid by merchants on credit card transactions and that
MasterCard's and Visa's rules force merchants to accept all
MasterCard and Visa credit cards and prevent merchants from
charging more for payments with MasterCard and Visa premium cards.
The second suit seeks compensatory damages in unspecified amounts,
and the third suit seeks compensatory damages of $5 billion. The
second and third suits also seek punitive damages in unspecified
amounts, as well as injunctive relief, interest and legal costs.
If the CCB's challenges and/or the class action law suits were
ultimately successful, such negative decisions could have a
significant adverse impact on the revenues of MasterCard's
Canadian customers and on MasterCard's overall business in Canada
and, in the case of the private lawsuits, could result in
substantial damage awards.
MATCH.COM LLC: Sued in N.Y. Over Deceptive Business Practices
-------------------------------------------------------------
Courthouse News Service reports that more than 90% of the
potential dates on Match.com are canceled subscribers, people who
never subscribed, duplicates, or phantoms the company created to
snare its $40 a month subscription fee, a class action claims in
Federal Court.
A copy of the Complaint in Kaposi v. Match.com, LLC, Case No.
11-cv-01913 (N.D. Tex.), is available at:
http://www.courthousenews.com/2011/08/05/DatePhantoms.pdf
The Plaintiff is represented by:
Austin Tighe, Esq.
Vic Feazell, Esq.
Ali Gallagher, Esq.
FEAZELL & TIGHE, LLP
6618 Sitio Del Rio Boulevard,
Building C-l01
Austin, TX 78730
Telephone: (512) 372-8100
E-mail: austin@feazell-tighe.com
- and -
Norah Hart, Esq.
TREUHAFT & ZAKARIN, LLP
305 Broadway, 14th Floor
New York, NY 10007
Telephone: (212) 897-5865 Phone
E-mail: nhart@consumerclasslaw.com
MF GLOBAL: Dismissed Cases Vs. Subsidiary Still Subject to Appeal
-----------------------------------------------------------------
Two dismissed class action lawsuits filed against MF Global
Holdings Ltd.'s subsidiary remain subject to possible appeals.
In May 2009, investors in a venture set up by Nicholas Cosmo sued
Bank of America and MF Global Inc., among others, in the United
States District Court for the Eastern District of New York, in two
separate class actions and one case brought by certain
individuals, alleging that MFGI, among others, aided and abetted
Cosmo and related entities in a Ponzi scheme in which investors
lost $400 million. MFGI made motions to dismiss all of these
cases which were granted with prejudice. The time when plaintiffs
are able to appeal the dismissal will not begin to run until the
action against the remaining defendants is decided.
No updates were reported in the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
MF Global Holdings Ltd. -- http://www.mfglobal.com/-- is a
leading broker-dealer in cash and derivatives, providing seamless
execution, clearing, and settlement services in exchange-traded
and over-the-counter markets. A leader by volume on multiple
exchanges, the firm delivers insight and access across a broad
range of products. MF Global helps its diverse client base meet
their unique trading and hedging needs through customized
solutions, market expertise, and value-added research.
MF GLOBAL: Motion to Dismiss Moore Capital Suit Remains Pending
---------------------------------------------------------------
A New York court has yet to rule on a motion to dismiss an amended
consolidated class action complaint against a subsidiary of MF
Global Holdings Ltd.
On August 4, 2010, MF Global Inc. was added as a defendant to a
consolidated class action complaint filed against Moore Capital
Management and related entities in the United States District
Court for the Southern District of New York which alleged claims
of manipulation and aiding and abetting manipulation in violation
of the Commodities Exchange Act. Specifically, the complaint
alleged that, between October 25, 2007 and June 6, 2008, Moore
Capital directed MFGI, as its executing broker, to enter "large"
market on close orders (at or near the time of the close) for
platinum and palladium futures contracts, which allegedly caused
artificially inflated prices. On August 10, 2010, MFGI was added
as a defendant to a related class action complaint filed against
the Moore-related entities on behalf of a class of plaintiffs who
traded the physical platinum and palladium commodities in the
relevant time frame, which alleges price fixing under the Sherman
Act and violations of the civil Racketeer Influenced and Corrupt
Organizations Act. On September 30, 2010, plaintiffs filed an
amended consolidated class action complaint that includes all of
the allegations and claims identified on behalf of subclasses of
traders of futures contracts of platinum and palladium and
physical platinum and palladium. A motion to dismiss was heard on
February 4, 2011. Plaintiffs' claimed damages have not been
quantified.
No updates were reported in the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
MF Global Holdings Ltd. -- http://www.mfglobal.com/-- is a
leading broker-dealer in cash and derivatives, providing seamless
execution, clearing, and settlement services in exchange-traded
and over-the-counter markets. A leader by volume on multiple
exchanges, the firm delivers insight and access across a broad
range of products. MF Global helps its diverse client base meet
their unique trading and hedging needs through customized
solutions, market expertise, and value-added research.
MOODY'S CORP: 2nd Cir. Refuses to Give Plaintiffs Leave to Appeal
-----------------------------------------------------------------
The United States Court of Appeals for the Second Circuit denied
plaintiffs' petition for leave to appeal in the consolidated class
action lawsuit against Moody's Corporation, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
Two purported class action complaints have been filed by purported
purchasers of the Company's securities against it and certain of
its senior officers, asserting claims under the federal securities
laws. The first was filed by Raphael Nach in the U.S. District
Court for the Northern District of Illinois on July 19, 2007. The
second was filed by Teamsters Local 282 Pension Trust Fund in the
U.S. District Court for the Southern District of New York on
September 26, 2007. Both actions have been consolidated into a
single proceeding entitled In re Moody's Corporation Securities
Litigation in the U.S. District Court for the Southern District of
New York. On June 27, 2008, a consolidated amended complaint was
filed, purportedly on behalf of all purchasers of the Company's
securities during the period February 3, 2006, through October 24,
2007. Plaintiffs allege that the defendants issued false and/or
misleading statements concerning the Company's business conduct,
business prospects, business conditions and financial results
relating primarily to MIS's ratings of structured finance products
including RMBS, CDO and constant-proportion debt obligations. The
plaintiffs seek an unspecified amount of compensatory damages and
their reasonable costs and expenses incurred in connection with
the case. The Company moved for dismissal of the consolidated
amended complaint in September 2008. On February 23, 2009, the
court issued an opinion dismissing certain claims and sustaining
others. On January 22, 2010, plaintiffs moved to certify a class
of individuals who purchased Moody's Corporation common stock
between February 3, 2006, and October 24, 2007, which the Company
opposed.
On March 31, 2011, the court issued an opinion denying plaintiffs'
motion to certify the proposed class. On April 14, 2011,
plaintiffs filed a petition in the United States Court of Appeals
for the Second Circuit seeking discretionary permission to appeal
the decision. The Company filed its response to the petition on
April 25, 2011. On July 20, 2011, the Second Circuit issued an
order denying plaintiffs' petition for leave to appeal.
NALCO HOLDING: Defends Class Suit Over Ecolab Merger
----------------------------------------------------
Nalco Holding Company is defending itself against a class action
lawsuit over its planned merger with Ecolab Inc., according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
Following Ecolab Inc. ("Ecolab") and Nalco Holding Company's
announcement of a planned merger transaction on July 20, 2011, a
purported class action lawsuit was filed against Nalco, members of
Nalco's board of directors and Ecolab in the Circuit Court of the
Eighteenth Judicial Circuit (DuPage County, State of Illinois):
Jack Mozenter v. Nalco Holding Co., Ecolab, Inc., et al., No.
2011MR001043. The lawsuit purports to represent a class of Nalco
stockholders opposed to the terms of the merger agreement. The
lawsuit alleges that the planned merger transaction is the result
of an unfair and inadequate process, the consideration to be
received by Nalco's stockholders in the merger is inadequate and
that the members of Nalco's board of directors breached their
fiduciary duties. The lawsuit also alleges that Ecolab aided and
abetted the Nalco board of directors in the breach of their
fiduciary duties to Nalco's stockholders. The lawsuit seeks, among
other things, injunctive relief enjoining Ecolab and Nalco from
proceeding with the merger unless Nalco implements procedures to
obtain the highest possible price for its stockholders and
directing the Nalco board of directors to exercise its fiduciary
duties to obtain a transaction in the best interests of Nalco's
stockholders. The Company believes that the lawsuit is without
merit and intend to defend the lawsuit vigorously.
NALCO HOLDING: Continues to Defend Class Suits Over COREXIT Use
---------------------------------------------------------------
Nalco Holding Company continues to defend itself against class
action lawsuits related to the Deepwater Horizon incident,
alleging negligence of its use of its oil dispersant product,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On April 22, 2010, the deepwater drilling platform, the Deepwater
Horizon, operated by a subsidiary of BP plc, sank in the Gulf of
Mexico after a catastrophic explosion and fire that began on
April 20, 2010. A massive oil spill resulted. Approximately one
week following the incident, subsidiaries of BP plc, under the
authorization of the responding federal agencies, formally
requested Nalco Company, an indirect subsidiary of Nalco Holding
Company, to supply large quantities of COREXIT(R) 9500, a Nalco
oil dispersant product listed on the U.S. EPA National Contingency
Plan Product Schedule. Nalco Company responded immediately by
providing available COREXIT and increasing production to supply
the product to BP's subsidiaries for use, as authorized and
directed by agencies of the federal government throughout the
incident. Prior to the incident, Nalco Holding Company and its
subsidiaries had not provided products or services or otherwise
had any involvement with the Deepwater Horizon platform. On
July 15, 2010, BP announced that it had capped the leaking well,
and the application of dispersants by the responding parties
ceased shortly thereafter.
On May 1, 2010, the President appointed retired U.S. Coast Guard
Commandant Admiral Thad Allen to serve as the National Incident
Commander in charge of the coordination of the response to the
incident at the national level. The EPA directed numerous tests of
all the dispersants on the National Contingency Plan Product
Schedule, including those provided by Nalco Company, "to ensure
decisions about ongoing dispersant use in the Gulf of Mexico are
grounded in the best available science." The Company cooperated
with this testing process and continued to supply COREXIT 9500, as
requested by BP and government authorities. After review and
testing of a number of dispersants, on June 30, 2010, and on
August 2, 2010, the EPA released toxicity data for eight oil
dispersants. The data is available on the EPA Web site at:
http://www.epa.gov/bpspill/dispersants-testing.html
The use of dispersants by the responding parties has been one tool
used by the government and BP to avoid and reduce damage to the
Gulf area from the spill. Since the spill occurred, the EPA and
other federal agencies have closely monitored conditions in areas
where dispersant has been applied. The Company has encouraged
ongoing monitoring and review of COREXIT and other dispersants and
have cooperated fully with the governmental review and approval
process. However, in connection with its provision of COREXIT,
Nalco Company has been named in several lawsuits.
Putative Class Action Litigation
In June, July and August 2010, and in April 2011, Nalco Company
was named, along with other unaffiliated defendants, in eight
putative class action complaints filed in either the United States
District Court for the Eastern District of Louisiana (Parker, et
al. v. Nalco Company, et al., Civil Action No. 2:10-cv-01749-CJB-
SS; Harris, et al. v. BP, plc, et al., Civil Action No. 2:10-cv-
02078-CJB-SS; Irelan v. BP Products, Inc., et al., Civil Action
No. 11-cv-00881; Adams v. Louisiana, et al., Civil Action No. 11-
cv-01051), the United States District Court for the Southern
District of Alabama, Southern Division (Lavigne, et al. v. BP PLC,
et al., Civil Action No. 1:10-cv-00222-KD-C; Wright, et al. v. BP,
plc, et al., Civil Action No. 1:10-cv-00397-B) or the United
States District Court for the Northern District of Florida,
Pensacola Division (Walsh, et al. v. BP, PLC, et al., Civil Action
No. 3:10-cv-00143-RV-MD; Petitjean, et al. v. BP, plc, et al.,
Case No. 3:10-cv-00316-RS-EMT) on behalf of various potential
classes of persons who live and work in or derive income from the
Coastal Zone. The Parker, Lavigne and Walsh cases have since been
voluntarily dismissed. Each of the remaining actions contains
substantially similar allegations, generally alleging, among other
things, negligence relating to the use of the Company's COREXIT
dispersant in connection with the Deepwater Horizon oil spill. The
plaintiffs in each of these putative class action lawsuits are
generally seeking awards of unspecified compensatory and punitive
damages, and attorneys' fees and costs.
Other Related Federal Claims
In July, August, September, October and December 2010, Nalco
Company was also named, along with other unaffiliated defendants,
in eight complaints filed by individuals in either the United
States District Court for the Eastern District of Louisiana (Ezell
v. BP, plc, et al., Case No. 2:10-cv-01920-KDE-JCW), the United
States District Court for the Southern District of Alabama,
Southern Division (Monroe v. BP, plc, et al., Case No. 1:10-cv-
00472-M; Hill v. BP, plc, et al., Civil Action No. 1:10-cv-00471-
CG-N; Hudley v. BP, plc, et al., Civil Action No. 10-cv-00532-N),
the United States District Court for the Northern District of
Florida, Tallahassee Division (Capt Ander, Inc. v. BP, plc, et
al., Case No. 4:10-cv-00364-RH-WCS), the United States District
Court for the Southern District of Mississippi, Southern Division
(Trehern v. BP, plc, et al., Case No. 1:10-cv-00432-HSO-JMR) or
the United States District Court for the Southern District of
Texas (Chatman v. BP Exploration & Production, Civil Action No.
10-cv-04329; Brooks v. Tidewater Marine LLC, et al., Civil Action
No. 11-cv-00049).
In April 2011, Nalco Company was also named in Best v. British
Petroleum plc, et al., Civil Action No. 11-cv-00772 (E.D. La.);
Black v. BP Exploration & Production, Inc., et al. Civil Action
No. 2:11-cv-867, (E.D. La.); Pearson v. BP Exploration &
Production, Inc., Civil Action No. 2:11-cv-863, (E.D. La.);
Alexander, et al. v. BP Exploration & Production, et al., Civil
Action No. 11-cv-00951 (E.D. La.); and Coco v. BP Products North
America, Inc.,et al. (E.D. La.). The complaints generally allege,
among other things, negligence and injury resulting from the use
of the Company's COREXIT dispersant in connection with the
Deepwater Horizon oil spill. The complaints seek unspecified
compensatory and punitive damages, and attorneys' fees and costs.
The Chatman case was voluntarily dismissed.
All of these cases pending against Nalco Company have been
administratively transferred for pre-trial purposes to a judge in
the United States District Court for the Eastern District of
Louisiana with other related cases under In Re: Oil Spill by the
Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20,
2010, Civil Action No. 10-md-02179 (E.D. La.) ("MDL 2179").
Pursuant to orders issued by Judge Barbier in MDL 2179, the claims
have been consolidated in several master complaints, including one
naming Nalco Company and others who responded to the Gulf Oil
Spill (known as the "B3 Bundle"). Plaintiffs are required by Judge
Barbier to prepare a list designating previously-filed lawsuits
that assert claims within the B3 Bundle regardless of whether the
lawsuit named each defendant named in the B3 Bundle master
complaint. The Company has received a draft list from the
plaintiffs' steering committee. The draft list identifies fifteen
cases in the B3 Bundle, some of which are putative class actions.
Six cases previously filed against Nalco Company are not included
in the B3 Bundle.
Pursuant to orders issued by Judge Barbier in MDL 2179, claimants
wishing to assert causes of action subject to one or more of the
master complaints may do so by filing a short-form joinder. A
short-form joinder is deemed to be an intervention into one or
more of the master complaints in MDL 2179. The deadline for filing
short form joinders was April 20, 2011. Of the individuals who
have filed short form joinders that intervene in the B3 Bundle,
Nalco Company has no reason to believe that these individuals are
different from those covered by the putative class actions. These
plaintiffs who have intervened in the B3 Bundle seek to recover
damages for alleged personal injuries, medical monitoring and/or
property damage related to the oil spill clean-up efforts.
Nalco Company, the incident defendants and the other responder
defendants have been named as third party defendants by Transocean
Deepwater Drilling, Inc. and its affiliates (the "Transocean
Entities") (In re the Complaint and Petition of Triton Asset
Leasing GmbH, et al, MDL No. 2179, Civil Action 10-2771). In April
and May 2011, the Transocean Entities, Cameron International
Corporation, Halliburton Energy Services, Inc., M-I L.L.C.,
Weatherford U.S., L.P. and Weatherford International, Inc.
(collectively, the "Cross Claimants") filed cross claims in MDL
2179 against Nalco Company and other unaffiliated cross
defendants. The Cross Claimants generally allege, among other
things, that if they are found liable for damages resulting from
the Deepwater Horizon explosion, oil spill and/or spill response,
they are entitled to indemnity or contribution from the cross
defendants.
In April and June 2011, in support of its defense of the claims
against it, Nalco Company filed counterclaims against the Cross
Claimants. In its counterclaims, Nalco Company generally alleges
that if it is found liable for damages resulting from the
Deepwater Horizon explosion, oil spill and/or spill response, it
is entitled to contribution or indemnity from the Cross Claimants.
NICOR INC: Court Dismisses "Lock 12 Plan" Class Action
------------------------------------------------------
In March 2011, a putative class action lawsuit was filed against
Nicor, Inc., and Nicor Advanced Energy. The plaintiff alleged
that the marketing and sale of the Lock 12 plan offered by Nicor
Advanced Energy violated the Illinois Consumer Fraud and Deceptive
Business Practices Act and resulted in unjust enrichment of Nicor
and Nicor Advanced Energy. The plaintiff sought compensatory
damages, interest, costs and attorneys fees on behalf of the class
of former Nicor Gas customers who switched to the Lock 12 plan.
In July 2011, Nicor and Nicor Advanced Energy entered into a
settlement for an immaterial amount with the plaintiff and the
lawsuit has been dismissed with prejudice, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 30, 2011.
NICOR INC: To Enter Into Stipulation Following MOU in Class Suits
-----------------------------------------------------------------
Nicor Inc. will seek to enter into a stipulation following its
entry into a memorandum of understanding to resolve class action
lawsuits commenced in connection with its proposed merger with AGL
Resources Inc., according to the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Nicor, its board of directors, AGL Resources and one or both of
AGL Resources' acquisition subsidiaries and, in one instance,
Nicor's Executive Vice President and Chief Financial Officer have
been named as defendants in six putative class action lawsuits
brought by purported Nicor shareholders challenging Nicor's
proposed merger with AGL Resources, two of which, including the
lawsuit that named Nicor's Executive Vice President and Chief
Financial Officer as a defendant, have subsequently been
voluntarily dismissed. The first action, Joseph Pirolli v. Nicor
Inc., et al. was filed on December 7, 2010 in the Eighteenth
Circuit Court of DuPage County, Illinois, County Department,
Chancery Division. Four other actions were filed between
December 10, 2010 and December 17, 2010 in the Circuit Court of
Cook County, Illinois, County Department, Chancery Division:
Maxine Phillips v. Nicor Inc., et al., filed December 10, 2010;
Plumbers Local #65 Pension Fund v. Nicor Inc., et al., filed
December 13, 2010; Gus Monahu v. Nicor Inc., et al., filed
December 17, 2010; and Roberto R. Vela v. Russ M. Strobel, et al.,
filed December 17, 2010. The sixth action, which is both an
individual action and a putative class action, was filed on
March 1, 2011 in the United States District Court for the Northern
District of Illinois, Eastern Division and captioned Maxine
Phillips v. Nicor Inc.,et al.
On January 10, 2011, the four actions filed in the Cook County
Court were consolidated. On February 18, 2011, plaintiffs in the
Consolidated Action filed an amended complaint. On February 28,
2011, the Phillips Action in the Cook County Court was voluntarily
dismissed and, on March 7, 2011, the Pirolli Action in DuPage
County Court was voluntarily dismissed. Accordingly, the
remaining cases pending are the Consolidated Action and the
Federal Action.
The Consolidated Amended Complaint alleges, among other things,
that: (a) the Nicor Board breached its fiduciary duties to Nicor
and its shareholders by (i) approving the sale of Nicor to AGL
Resources at an inadequate purchase price (and thus failing to
maximize value to Nicor shareholders), (ii) conducting an
inadequate sale process by agreeing to preclusive deal protection
provisions in the Merger Agreement and failing to solicit other
potential bids or alternative transactions and (iii) failing to
disclose material information regarding the proposed merger to
Nicor shareholders; and (b) AGL Resources, Nicor and the
acquisition subsidiaries aided and abetted these alleged breaches
of fiduciary duty. The Consolidated Amended Complaint seeks,
among other things, declaratory and injunctive relief, including
an order enjoining the defendants from consummating the proposed
merger.
The Federal Action asserts both individual and purported class
claims for breach of fiduciary duty and violations of the federal
securities laws. Among other things, plaintiffs allege that: (i)
Nicor and the Nicor board of directors violated Section 14(a) of
the Securities and Exchange Act of 1934 (sometimes referred to as
the Exchange Act) and Rule 14a-9 promulgated thereunder by issuing
a materially incomplete registration statement in connection with
the proposed merger; and (ii) the Nicor board of directors
violated Section 20(a) of the Exchange Act by virtue of its
control over the content and dissemination of that registration
statement. The Federal Action also claims that: (a) the Nicor
board of directors breached its fiduciary duties to Nicor and its
shareholders by (i) approving the sale of Nicor to AGL Resources
at an inadequate price (and thus failing to maximize value to
Nicor shareholders), (ii) conducting an inadequate sale process by
agreeing to preclusive deal protection provisions in the Merger
Agreement and failing to solicit other potential bids or
alternative transactions and (iii) failing to disclose material
information regarding the proposed merger; and (b) Nicor and AGL
Resources aided and abetted the alleged breaches of fiduciary
duty. The Federal Action seeks, among other things, damages and
declaratory and injunctive relief, including an order enjoining
the defendants from consummating the proposed merger.
On May 25, 2011, solely to avoid the costs, risks and
uncertainties inherent in litigation, Nicor and the other named
defendants signed a memorandum of understanding with the
plaintiffs to settle the Consolidated Action and the Federal
Action. This memorandum of understanding provides, among other
things, that the parties will seek to enter into a stipulation of
settlement which provides for the release of all asserted claims.
The asserted claims will not be released until such stipulation of
settlement is approved by the court. Additionally, as part of the
memorandum of understanding, Nicor and AGL Resources made certain
additional disclosures related to the proposed merger. Finally,
in connection with the proposed settlement, plaintiffs intend to
seek, and the defendants have agreed to pay, an award of attorneys
fees and expenses of $675,000, subject to court approval.
NL INDUSTRIES: Continues to Defend Suits Over Lead-Based Paints
---------------------------------------------------------------
NL Industries, Inc., remains a defendant in various lawsuits in
connection with the manufacture of lead pigments for use in paint
and lead-based paint, according to its August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
The company's former operations included the manufacture of lead
pigments for use in paint and lead-based paint. The company,
other former manufacturers of lead pigments for use in paint and
lead-based paint, and the Lead Industries Association, which
discontinued business operations in 2002, have been named as
defendants in various legal proceedings seeking damages for
personal injury, property damage and governmental expenditures
allegedly caused by the use of lead-based paints. Certain of
these actions have been filed by or on behalf of states, counties,
cities or their public housing authorities and school districts,
and certain others have been asserted as class actions.
These lawsuits seek recovery under a variety of theories,
including public and private nuisance, negligent product design,
negligent failure to warn, strict liability, breach of warranty,
conspiracy/concert of action, aiding and abetting, enterprise
liability, market share or risk contribution liability,
intentional tort, fraud and misrepresentation, violations of state
consumer protection statutes, supplier negligence and similar
claims.
The plaintiffs in these actions generally seek to impose on the
defendants responsibility for lead paint abatement and health
concerns associated with the use of lead-based paints, including
damages for personal injury, contribution and/or indemnification
for medical expenses, medical monitoring expenses and costs for
educational programs. To the extent the plaintiffs seek
compensatory or punitive damages in these actions, such damages
are generally unspecified. In some cases, the damages are
unspecified pursuant to the requirements of applicable state law.
A number of cases are inactive or have been dismissed or
withdrawn. Most of the remaining cases are in various pre-trial
stages. Some are on appeal following dismissal or summary
judgment rulings in favor of either the defendants or the
plaintiffs. In addition, various other cases (in which the
Company is not a defendant) are pending that seek recovery for
injury allegedly caused by lead pigment and lead-based paint.
Although the Company is not a defendant in these cases, the
outcome of these cases may have an impact on cases that might be
filed against the Company in the future.
The Company believes that these actions are without merit, and
intends to continue to deny all allegations of wrongdoing and
liability and to defend against all actions vigorously. The
Company does not believe it is probable that it has incurred any
liability with respect to all of the lead pigment litigation cases
to which the Company is a party, and liability to the Company that
may result, if any, in this regard cannot be reasonably estimated,
because:
* it has never settled any of the market share, risk
contribution, intentional tort, fraud, nuisance, supplier
negligence, breach of warranty, conspiracy,
misrepresentation, aiding and abetting, enterprise liability,
or statutory cases,
* no final, non-appealable adverse verdicts have ever been
entered against the Company, and
* it has never ultimately been found liable with respect to any
such litigation matters.
Accordingly, the Company says it has not accrued any amounts for
any of the pending lead pigment and lead-based paint litigation
cases. New cases may continue to be filed against us. The Company
cannot give its assurance that it will not incur liability in the
future in respect of any of the pending or possible litigation in
view of the inherent uncertainties involved in court and jury
rulings. The resolution of any of these cases could result in
recognition of a loss contingency accrual that could have a
material adverse impact on the Company's net income for the
interim or annual period during which such liability is recognized
and a material adverse impact on the Company's consolidated
financial condition and liquidity.
NORTHERN ILLINOIS: Defends Appliance Warranty Suits in Illinois
---------------------------------------------------------------
Northern Illinois Gas Company, doing business as Nicor Gas
Company, defends itself against class action lawsuits commenced by
customers, who purchased appliance warranty and service plans from
its subsidiary, according to the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
In the first quarter of 2011, three putative class actions were
filed in state court in Cook County, Illinois, against the
Company's subsidiary Nicor Energy Services Company and Nicor Gas,
and in one case against the Company parent, Nicor Inc. The
plaintiffs purport to represent a class of customers of Nicor Gas
who purchased appliance warranty and service plans from Nicor
Services and/or a class of customers of Nicor Gas who purchased
the Gas Line Comfort Guard product from Nicor Services. In these
actions, the plaintiffs variously allege that the marketing, sale
and billing of the Nicor Services appliance warranty and service
plans and Gas Line Comfort Guard violate the Illinois Consumer
Fraud and Deceptive Business Practices Act, constitute common law
fraud and result in unjust enrichment of Nicor Gas and Nicor
Services. The plaintiffs seek, on behalf of the classes they
purport to represent, actual and punitive damages, interest,
costs, attorneys fees and injunctive relief.
While the Company is unable to predict the outcome of these
matters or to reasonably estimate its potential exposure related
thereto, if any, and has not recorded a liability associated with
this contingency, the final disposition of these matters is not
expected to have a material adverse impact on the Company's
liquidity or financial condition.
NORTHWEST AIRLINES: Rabbi Can Pursue Class Action, 9th Cir. Says
----------------------------------------------------------------
Tim Hull at Courthouse News Service reports that a rabbi who says
Northwest Airlines kicked him out of its frequent-flier program
for complaining too much can pursue a class action, the United
States Court of Appeals for the Ninth Circuit ruled on August 5.
The federal appeals panel in Pasadena reversed a lower court and
moved Rabbi S. Binyomin Ginsberg's bad-faith lawsuit against the
airline forward, finding that a federal deregulation law does not
pre-empt a common-law contract claim.
After being dismissed from Northwest's WorldPerks frequent-flier
program, Rabbi Ginsberg filed a class action against the airline,
now part of Delta, two years ago in California's Southern
District. He claimed that Northwest had "revoked his membership
arbitrarily because he complained too frequently about the
services," according to the ruling.
U.S. District Judge Janis Sammartino dismissed the case, finding
that the Airline Deregulation Act (ADA) pre-empted the rabbi's
contract claims. The three-judge appellate panel disagreed,
reversing unanimously and cautioning the lower court that the
virtues of deregulation do not trump the common law.
"When Congress passed the ADA, it dismantled a federal regulatory
structure that had existed since 1958," Judge Robert Beezer wrote
for the panel. "By including a preemption clause, congress
intended to ensure that the states would not undo the deregulation
with regulation of their own. Congress's 'manifest purpose' was
to make the airline industry more efficient by unleashing the
market forces of competition -- it was not to immunize the airline
industry from liability for common law contract claims. Congress
did not intend to convert airlines into quasi-government agencies,
complete with sovereign immunity."
A copy of the Opinion in Ginsberg v. Northwest, Inc., et al., No.
09-56986 (9th Cir.), is available at http://is.gd/t9JSUB
OHIO EDUCATION ASSOC: Teachers Sue Over Compulsory Union Fees
-------------------------------------------------------------
Courthouse News Service reports that teachers say the Ohio
Education Association takes dues from their paychecks
unconstitutionally.
A copy of the Complaint in Thaxton, et al. v. Ohio Education
Association, et al., Case No. 11-cv-00707 (S.D. Ohio), is
available at:
http://www.courthousenews.com/2011/08/05/TeachvUnion.pdf
The Plaintiffs are represented by:
Erin E. Wilcox, Esq.
Milton L. Chappell, Esq.
NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, INC.
8001 Braddock Rd., Ste. 600
Springfield, VA 22151
Telephone: (703) 321-8510
OMEGA FLEX: Continues to Pursue Reimbursement of Class Suit Fees
----------------------------------------------------------------
In 2007, Omega Flex, Inc., instituted a legal complaint against a
former insurer, seeking reimbursement of amounts paid in defense
of a class action litigation, as well as supplementary payments
made in connection with the class action. After an adverse ruling
at the trial court level, the Company appealed the ruling, and in
January 2011, the appeals court found in the Company's favor,
reversing the trial court decision and establishing the insurer's
legal obligation to reimburse the Company for the defense costs.
The case will be remanded to the trial court for further
proceedings and determination of the amount payable to the
company, which the Company estimates to be in excess of
$3,000,000, together with attorneys' fees incurred in establishing
the insurer's defense obligations. The litigation has not been
fully resolved and while the Company believes they will ultimately
prevail, further developments in the case could reduce or
eliminate any potential recoveries, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
PANERA BREAD: Obtains Final Court Okay of Class Suit Settlement
---------------------------------------------------------------
Panera Bread Company has obtained final court approval of an
agreement settling a consolidated class action lawsuit with the
Western Washington Laborers-Employers Pension Trust as lead
plaintiff, according to the Company's August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 28, 2011.
On January 25, 2008 and February 26, 2008, purported class action
lawsuits were filed against the Company and three of the Company's
current or former executive officers by the Western Washington
Laborers-Employers Pension Trust and Sue Trachet, respectively, on
behalf of investors who purchased the Company's common stock
during the period between November 1, 2005 and July 26, 2006. Both
lawsuits were filed in the United States District Court for the
Eastern District of Missouri, St. Louis Division. Each complaint
alleged that the Company and the other defendants violated
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934,
as amended, and Rule 10b-5 under the Exchange Act in connection
with the Company's disclosure of system-wide net sales and
earnings guidance during the period from November 1, 2005 through
July 26, 2006. Each complaint sought, among other relief, class
certification of the lawsuit, unspecified damages, costs and
expenses, including attorneys' and experts' fees, and such other
relief as the Court might find just and proper. On June 23, 2008,
the lawsuits were consolidated and the Western Washington
Laborers-Employers Pension Trust was appointed lead plaintiff. On
August 7, 2008, the plaintiff filed an amended complaint, which
extended the class period to November 1, 2005 through July 26,
2007. Following the filing of motions by both parties and hearings
before the Court, on February 11, 2011, the parties filed with the
Court a Stipulation of Settlement regarding the class action
lawsuit. Under the terms of the Stipulation of Settlement, the
Company's primary directors and officers liability insurer
deposited $5.7 million into a settlement fund for payment to class
members, plaintiff's attorneys' fees and costs of administering
the settlement. The Stipulation of Settlement contains no
admission of wrongdoing. On February 22, 2011, the Court
preliminarily approved the settlement, and on June 22, 2011, the
Court granted final approval of the settlement and entered an
order dismissing the class action lawsuit with prejudice. The
settlement and dismissal became final on July 22, 2011. The amount
deposited by the Company's primary directors and officers
liability insurer into the settlement fund of $5.7 million is
included in other accounts receivable and accrued expenses in the
Company's Consolidated Balance Sheets as of June 28, 2011.
PANERA BREAD: "Sotoudeh" Class Suit Still Pending in California
---------------------------------------------------------------
A purported class action lawsuit filed by Nick Sotoudeh against
Panera Bread Company in California remains pending, according to
the Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 28, 2011.
On December 9, 2009, a purported class action lawsuit was filed
against the Company and one of its subsidiaries by Nick Sotoudeh,
a former employee. The lawsuit was filed in the California
Superior Court, County of Contra Costa. The complaint alleges,
among other things, violations of the California Labor Code,
failure to pay overtime, failure to provide meal and rest periods
and termination compensation and violations of California's Unfair
Competition Law. The complaint seeks, among other relief,
collective and class certification of the lawsuit, unspecified
damages, costs and expenses, including attorneys' fees, and such
other relief as the Court might find just and proper. Panera
Bread believes it and the other defendant have meritorious
defenses to each of the claims in this lawsuit and are prepared to
vigorously defend the lawsuit.
No updates were reported in the Company's latest SEC filing.
PANERA BREAD: Still Defends Employee Class Suit in Florida
----------------------------------------------------------
Panera Bread Company continues to defend itself from a purported
class action lawsuit filed in Florida by former employees of its
subsidiary, according to the Company's August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 28, 2011.
On December 16, 2010, a purported class action lawsuit was filed
against the Company by Denarius Lewis and Corey Weiner, former
employees of one of its subsidiaries, and Caroll Ruiz, an employee
of one of its franchisees. The lawsuit was filed in the United
States District Court for Middle District of Florida. The
complaint alleges, among other things, violations of the Fair
Labor Standards Act. The complaint seeks, among other relief,
collective and class certification of the lawsuit, unspecified
damages, costs and expenses, including attorneys' fees, and such
other relief as the Court might find just and proper. The Company
believes it and the other defendant have meritorious defenses to
each of the claims in this lawsuit and are prepared to vigorously
defend the lawsuit.
No updates were reported in the Company's latest SEC filing.
PANERA BREAD: Still Defends "Ortiz" Class Suit in Virginia
----------------------------------------------------------
Panera Bread Company continues to defend itself from a purported
class action lawsuit filed in Virginia by Jamie Ortiz, according
to the Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarterly period ended
June 28, 2011.
On December 20, 2010, a purported class action lawsuit was filed
against the Company by Jamie Ortiz, a former employee of one of
its subsidiaries. The lawsuit was filed in the United States
District Court for the Northern District of Virginia. The
complaint alleges, among other things, violations of the Fair
Labor Standards Act. Mr. Ortiz also has alleged several
individual claims for Title VII retaliation, defamation and
intentional infliction of emotional distress. The complaint
seeks, among other relief, collective, and class certification of
the lawsuit, unspecified damages, costs and expenses, including
attorneys' fees and such other relief as the Court might find just
and proper. The Company believes it has meritorious defenses to
each of the claims in this lawsuit and is prepared to vigorously
defend the lawsuit.
No updates were reported in the Company's latest SEC filing.
PETROHAWK ENERGY: Faces Suits Over Proposed BHP Billiton Merger
---------------------------------------------------------------
Petrohawk Energy Corporation is facing numerous lawsuits over its
proposed merger with BHP Billiton Limited, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On July 14, 2011, the Company entered into an agreement and plan
of merger with BHP Billiton Limited, a corporation organized under
the laws of Victoria, Australia (Guarantor), BHP Billiton
Petroleum (North America) Inc., a Delaware corporation (Parent)
and a wholly owned subsidiary of Guarantor, and North America
Holdings II Inc., a Delaware corporation (Merger Sub) and a wholly
owned subsidiary of Parent, pursuant to which Merger Sub will
commence an offer to acquire all of the outstanding shares of the
Company's common stock, par value $0.001 per share, for $38.75 per
share, net to the seller in cash, without interest. The Offer
commenced on July 25, 2011, and is expected to remain open until
August 19, 2011, subject to extension under certain circumstances.
If the Offer is consummated, it may result in a change of control
under the indentures governing the Company's senior notes.
Subsequent to the Company's execution of the Merger Agreement, the
Company and the members of its Board were named as defendants in
purported class action lawsuits brought by the Company's
stockholders challenging the proposed transaction (the Stockholder
Actions). The Stockholder Actions were filed in: the Court of
Chancery of the State of Delaware, Astor BK Realty Trust v.
Petrohawk Energy Corp., et al., C.A. No. 6675-CS, Grossman v.
Petrohawk Energy Corp., et al., C.A. No. 6688-CS, Marina
Gincherman, IRA v. Petrohawk Energy Corp., et al., C.A. No. 6700,
and Binkowski v. Petrohawk Energy Corp., et al., C.A. No. 6706,
and the District of Harris County, Texas, Iron Workers District
Counsel of Tennessee Valley & Vicinity Pension Plan v. Petrohawk
Energy Corp., et al., C.A. No. 42124, Iron Workers Mid-South
Pension Fund v. Petrohawk Energy Corp., et al., C.A. No. 42590,
and L.A. Murphy v. Wilson, et al., C.A. No. 42772. The Guarantor,
Parent and Purchaser are named as defendants in the Grossman,
Gincherman and the two Iron Workers actions, and the Guarantor and
Parent are named as defendants in the Binkowski action. The
Stockholder Actions seek certification of a class of the Company's
stockholders and generally allege, among other things, that: (i)
each member of the Board breached his fiduciary duties in
connection with the transactions contemplated by the Merger
Agreement by failing to maximize stockholder value, agreeing to
preclusive deal protection provisions, and failing to protect
against conflicts of interest; (ii) the Company aided and abetted
its directors' purported breaches of their fiduciary duties;
and/or (iii) the Guarantor, Parent and Purchaser parties aided and
abetted the purported breaches of fiduciary duties by the
Company's directors. The Stockholder Actions seek, among other
relief, an injunction prohibiting the transactions contemplated by
the Merger Agreement, rescission in the event such transactions
are consummated, damages and attorneys' fees and costs.
The Company believes the Stockholder Actions are without merit and
intends to defend itself vigorously.
PHI INC: 3rd Circuit Appeal in Delaware Class Suit Pending
----------------------------------------------------------
An appeal from an order dismissing claims filed by a class of
direct purchasers of PHI, Inc.'s helicopter services remains
pending, according to the Company's August 3, 2011 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Superior Offshore International Inc. v. Bristow Group Inc., ERA
Helicopters, LLC, Seacor Holdings Inc., ERA Group Inc., ERA
Aviation, Inc., and PHI, Inc., Civil Action No. 1:09-cv-00438 on
the docket of the United States District Court for the District of
Delaware, was filed on June 12, 2009, on behalf of a class defined
to include all direct purchasers of offshore helicopter services
in the Gulf of Mexico from the defendants at any time from
January 1, 2001 through December 31, 2005. The suit alleged that
the defendants acted jointly to fix, maintain, or stabilize prices
for offshore helicopter services during the above time frame in
violation of the federal antitrust laws. The plaintiff sought
unspecified treble damages, injunctive relief, costs, and
attorneys' fees. On September 14, 2010, the Court granted
defendants' motion to dismiss (filed on September 4, 2009) and
dismissed the complaint. On November 30, 2010, the court granted
plaintiff leave to amend the complaint, limited discovery to the
new allegations, and established a schedule for briefing
dispositive motions. The defendants filed a motion for summary
judgment on February 11, 2011. On June 23, 2011, the court
granted the defendants' motion for summary judgment, entered final
judgment in favor of the defendants, and dismissed all of the
plaintiff's claims. On July 22, 2011, the plaintiff filed a
notice of appeal with the U.S. Court of Appeals, Third Circuit.
PRINCIPAL FINANCIAL: Appeal From Certification Denial Pending
-------------------------------------------------------------
An appeal from the denial of a motion for certification of a
class action lawsuit against Principal Financial Group, Inc.'s
subsidiary is currently pending, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On November 8, 2006, a trustee of Fairmount Park Inc. Retirement
Savings Plan filed a putative class action lawsuit in the United
States District Court for the Southern District of Illinois
against Principal Life Insurance Company. Principal Life's motion
to transfer venue was granted and the case is now pending in the
Southern District of Iowa. The complaint alleged, among other
things, that Principal Life breached its alleged fiduciary duties
while performing services to 401(k) plans by failing to disclose,
or adequately disclose, to employers or plan participants the fact
that Principal Life receives "revenue sharing fees from mutual
funds that are included in its pre-packaged 401(k) plans" and
allegedly failed to use the revenue to defray the expenses of the
services provided to the plans. Plaintiff further alleged that
these acts constitute prohibited transactions under ERISA.
Plaintiff sought to certify a class of all retirement plans to
which Principal Life was a service provider and for which
Principal Life received and retained "revenue sharing" fees from
mutual funds. On August 27, 2008, the plaintiff's motion for
class certification was denied. On June 13, 2011, the court
entered a consent judgment resolving the claims of the plaintiff.
On July 12, 2011, plaintiff filed a notice of appeal related to
the issue of the denial of class certification. Principal Life
continues to aggressively defend the lawsuit.
PRINCIPAL FINANCIAL: Continues to Defend Cruise & Mullaney Suit
---------------------------------------------------------------
Principal Financial Group, Inc., continues to defend itself in In
re Principal U.S. Property Account Litigation pending in Iowa,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On December 2, 2009 and December 4, 2009, two plaintiffs, Cruise
and Mullaney, each filed putative class action lawsuits in the
United States District Court for the Southern District of New
York against the Company, Principal Life Insurance Company,
Principal Global Investors, LLC, and Principal Real Estate
Investors, LLC (the "Cruise/Mullaney Defendants"). The lawsuits
alleged the Cruise/Mullaney Defendants failed to manage the
Principal U.S. Property Separate Account ("PUSPSA") in the best
interests of investors, improperly imposed a "withdrawal freeze"
on September 26, 2008, and instituted a "withdrawal queue" to
honor withdrawal requests as sufficient liquidity became
available. Plaintiffs allege these actions constitute a breach of
fiduciary duties under ERISA. Plaintiffs seek to certify a class
including all qualified ERISA plans and the participants of those
plans that invested in PUSPSA between September 26, 2008, and the
present that have suffered losses caused by the queue. The two
lawsuits, as well as two subsequently filed complaints asserting
similar claims, have been consolidated and are now known as In re
Principal U.S. Property Account Litigation. On April 22, 2010, an
order was entered granting the motion made by the Cruise/Mullaney
Defendants for change of venue to the United States District Court
for the Southern District of Iowa. Plaintiffs filed an Amended
Consolidated Complaint adding five new plaintiffs on November 22,
2010, and the Cruise/Mullaney Defendants moved to dismiss the
amended complaint. The court denied the Cruise/Mullaney
Defendants' motion to dismiss on May 17, 2011. The Cruise/Mullaney
Defendants are aggressively defending the lawsuit.
ROYAL CARIBBEAN: Accounting Error Prompts Class Action
------------------------------------------------------
Johanna Jainchill, writing for USA Today, reports that Royal
Caribbean Cruises Ltd. is being hit with a class-action lawsuit
due to the accounting error the cruise company recently disclosed.
A law firm that specializes in stock fraud, Kahn Swick & Foti,
filed a class-action suit against Royal Caribbean in the U.S.
District Court in Miami last week, alleging that the company made
"a series of materially false and misleading statements related to
the Company's business and operations."
Subsequent to Royal Caribbean's July 28 revelation of the error,
the suit says, RCCL shares fell 13% on July 28 to below $31 per
share. The suit is being filed on behalf of Royal Caribbean
shareholders that purchased securities between Jan. 27 and
July 28, 2011.
The lawsuit alleges that the cruise company on July 28 "revealed
for the first time that it was performing below expectations," and
that errors in its previous earnings accounting had "resulted in
the revision of the company's past financial statements."
Royal Caribbean said that its second-quarter earnings per share of
47 cents were revised to 43 cents, and that full-year 2011
earnings would be reduced by 20 cents.
Royal Caribbean Chairman Richard Fain said he was "embarrassed" by
the error, which he said was made in 2009 and discovered by the
company's internal accounting team.
SAIA INC: Hearing on Dock Workers' Suit Settlement Set for Aug. 20
------------------------------------------------------------------
The United States District Court for the Central District of
California has set an August 20, 2011, hearing for preliminary
approval of a class action settlement against Saia, Inc.,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
The Company is a defendant in a lawsuit originally filed in July
2007 in California state court on behalf of California dock
workers alleging various violations of state labor laws. In August
2007, the case was removed to the United States District Court for
the Central District of California. The claims include the alleged
failure of the Company to provide rest and meal breaks and the
alleged failure to reimburse the employees for the cost of work
shoes, among other claims. In January 2008, the parties negotiated
a conditional class-wide settlement under which the Company would
pay $0.8 million to settle these claims. This pre-certification
settlement is subject to court approval. In March 2008, the
District Court denied preliminary approval and the named Plaintiff
filed a petition with the United States Court of Appeals for the
Ninth Circuit seeking permission to appeal this ruling. On
October 8, 2010, the Court of Appeals issued a memorandum vacating
the District Court's decision and remanding the matter to the
District Court for reconsideration of the Plaintiff's motion for
preliminary approval of the settlement. On January 10, 2011, the
District Court ordered a March 14, 2011 hearing on the plaintiff's
motion for preliminary approval of the class action and
conditional certification of the settlement class. The District
Court has requested supplemental briefing and scheduled an
August 20, 2011 hearing. The parties are updating information
regarding the putative settlement class. The proposed settlement
is reflected as a liability of $0.8 million at June 30, 2011 and
December 31, 2010.
SAIA INC: Continues to Defend Wage Suit Filed by Ex-Line Driver
---------------------------------------------------------------
Saia, Inc., remains a defendant in a lawsuit filed on
September 21, 2010 in the Superior Court of the State of
California, County of Bernardino. The lawsuit was brought by a
former line driver seeking to represent himself and similarly-
situated putative class members in connection with his claims
alleging various violations of state labor laws. The claims
include the alleged failure of the Company to provide rest and
meal breaks and the alleged failure to compensate for all time
worked. The plaintiff also seeks to recover civil penalties on
behalf of California in connection with alleged California Labor
Code violations pursuant to the Private Attorney General Statute
and is seeking class action certification. The Company has denied
any liability and intend to vigorously defend itself in opposing
the liability claims and class action certification. Given the
nature and status of the claims, the Company cannot yet determine
the amount or a reasonable range of potential loss, if any,
according to the Company's August 3, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
SECURITIES AMERICA: Judge Approves Class Action Settlement
----------------------------------------------------------
Suzanne Barlyn, writing for Dow Jones Newswires, reports that a
federal judge has approved a class action settlement that will
clear the way for Securities America and its parent company,
Ameriprise Financial, Inc. to pay around $150 million to hundreds
of aggrieved investors who lost money after purchasing allegedly
fraudulent private placements from the firm.
Judge W. Royal Furgeson Jr. in Dallas signed an order on August 4
approving an $80 million settlement between Securities America, a
Nebraska-based broker-dealer unit of Ameriprise, and class action
investors, according to court documents. A separate $70 million
settlement reached in April with investors who filed securities
arbitration claims against the firm was contingent on approval of
the class action settlement, according to lawyers.
Judge Furgeson, in a second order, also approved more than $18
million in fees for the class action lawyers, to be deducted from
the $80 million settlement. Lawyers will also be able to recoup
$360,000 in expenses and costs, according to the order.
The orders follow a hearing before Judge Furgeson.
Securities America faced potentially more than $300 million in
arbitration claims related to sales of private placements from
Provident Royalties LLC and Medical Capital Holdings Inc.
Regulators accused those two companies of fraud in 2009, and
clients allege the brokerage didn't conduct adequate due diligence
of the offerings.
A settlement with Massachusetts regulators in May requires
Securities America to pay $2.8 million in restitution to 63
investors in the state who also purchased the securities.
Ameriprise said in April that it decided to sell its Securities
America unit, which serves independent financial advisers across
the country.
SEI INVESTMENTS: Subsidiary Continues to Defend 'ETF' Class Suits
-----------------------------------------------------------------
A subsidiary of SEI Investments Company continues to defend itself
from a second amended consolidated complaint filed in connection
with the leveraged exchange traded funds advised by ProShares
Advisors LLC, according to the Company's August 4, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarterly period ended June 30, 2011.
One of SEI's principal subsidiaries, SEI Investments Distribution
Co., or SIDCO, has been named as a defendant in certain putative
class action complaints (the Complaints) related to leveraged
exchange traded funds (ETFs) advised by ProShares Advisors, LLC.
The first complaint was filed on August 5, 2009. To date, the
Complaints have been filed in the United States District Court for
the Southern District of New York and in the United States
District Court for the District of Maryland. The three complaints
filed in the District of Maryland have been voluntarily dismissed
by the plaintiffs. Two of them were subsequently re-filed in the
Southern District of New York. Two of the complaints filed in the
Southern District of New York have also been voluntarily dismissed
by plaintiffs.
The Complaints are purportedly made on behalf of all persons that
purchased or otherwise acquired shares in various ProShares
leveraged ETFs pursuant or traceable to allegedly false and
misleading registration statements, prospectuses and statements of
additional information. The Complaints name as defendants
ProShares Advisors, LLC; ProShares Trust; ProShares Trust II,
SIDCO, and various officers and trustees to ProShares Advisors,
LLC; ProShares Trust and ProShares Trust II. The Complaints
allege that SIDCO was the distributor and principal underwriter
for the various ProShares leveraged ETFs that were distributed to
authorized participants and ultimately shareholders. The
complaints allege that the registration statements for the
ProShares ETFs were materially false and misleading because they
failed adequately to describe the nature and risks of the
investments. The Complaints allege that SIDCO is liable for these
purportedly material misstatements and omissions under Section 11
of the Securities Act of 1933. The Complaints seek unspecified
compensatory and other damages, reasonable costs and other relief.
Defendants have moved to consolidate the complaints, which motion
has been granted. The Court appointed lead plaintiff on July 13,
2010, and an amended consolidated class action complaint was filed
on September 25, 2010 asserting substantially the same claims.
Defendants moved to dismiss on November 15, 2010. On December 16,
2010, lead plaintiff informed the Court and Defendants that lead
plaintiff elected to file a second amended consolidated complaint,
which was filed on January 31, 2011. Defendants filed a motion to
dismiss the second complaint on March 17, 2011. The Court has
permitted the parties to file supplemental briefing due July 13,
2011 with replies due July 20, 2011, after which the motion will
be fully briefed. While the outcome of this litigation is
uncertain given its early phase, SEI believes that it has valid
defenses to plaintiffs' claims and intends to defend the lawsuits
vigorously.
SEI INVESTMENTS: Class Certification Hearing Set for Oct. 4-6
-------------------------------------------------------------
A motion for class certification filed in the putative class
action lawsuit pending in Louisiana is set for hearing from
October 4 to 6, 2011, according to SEI Investments Company's
August 4, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2011.
SEI has been named in six lawsuits filed in Louisiana. Five
lawsuits were filed in the 19th Judicial District Court for the
Parish of East Baton Rouge, State of Louisiana. One of the five
actions purports to set forth claims on behalf of a class and also
names SEI Private Trust Company, or SPTC, as a defendant. Two of
the other actions also name SPTC as a defendant. All five actions
name various defendants in addition to SEI, and, in all five
actions, the plaintiffs purport to bring a cause of action under
the Louisiana Securities Act. The putative class action originally
included a claim against SEI and SPTC for an alleged violation of
the Louisiana Unfair Trade Practices Act. Two of the other five
actions include claims for violations of the Louisiana
Racketeering Act and possibly conspiracy. In addition, another
group of plaintiffs have filed a lawsuit in the 23rd Judicial
District Court for the Parish of Ascension, State of Louisiana,
against SEI and SPTC and other defendants asserting claims of
negligence, breach of contract, breach of fiduciary duty,
violations of the uniform fiduciaries law, negligent
misrepresentation, detrimental reliance, violations of the
Louisiana Securities Act and Louisiana Racketeering Act and
conspiracy. The underlying allegations in all the actions are
purportedly related to the role of SPTC in providing back-office
services to Stanford Trust Company. The petitions allege that SEI
and SPTC aided and abetted or otherwise participated in the sale
of "certificates of deposit" issued by Stanford International
Bank. Two of the five actions filed in East Baton Rouge have been
removed to federal court, and plaintiffs' motions to remand are
pending. These two cases have been transferred by the Judicial
Panel on Multidistrict Litigation to United States District Court
for the Northern District of Texas. The case filed in Ascension
was also removed to federal court and transferred by the Judicial
Panel on Multidistrict Litigation to the Northern District of
Texas. The schedule for responding to that complaint has not yet
been established. The plaintiffs in the remaining two cases in
East Baton Rouge have granted SEI an extension to respond to the
filings. SEI and SPTC filed exceptions in the putative class
action pending in East Baton Rouge, which the Court granted in
part and dismissed the claims under the Louisiana Unfair Trade
Practices Act and denied in part as to the other exceptions. SEI
and SPTC filed an answer to the East Baton Rouge putative class
action; plaintiffs filed a motion for class certification which is
set for hearing on October 4-6, 2011; and SEI and SPTC also filed
a motion for summary judgment against certain named plaintiffs
which the Court stated will not be set for hearing until after the
hearing on the class certification motion. While the outcome of
this litigation is uncertain given its early phase, SEI and SPTC
believe that they have valid defenses to plaintiffs' claims and
intend to defend the lawsuits vigorously.
SOLTA MEDICAL: Aesthera Continues to Defend Suit Over "Faxed Ads"
-----------------------------------------------------------------
Solta Medical, Inc.'s subsidiary continues to defend itself
against a class action lawsuit pending in Connecticut over
unsolicited fax advertisements, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On December 4, 2009, Aesthera Corporation was served with a class
action complaint filed in the United States District Court for the
District of Connecticut alleging that Aesthera caused unsolicited
fax advertisements to be sent to the plaintiffs in violation of
the Telephone Consumer Protection Act, or TCPA, and Connecticut
state law. The complaint purports to be filed on behalf of a
class, and it alleges that Aesthera caused unsolicited fax
advertisements to be sent from August 1, 2006 through the present.
Plaintiffs seek statutory damages under the TCPA and Connecticut
state law, attorneys' fees and costs of the action, and an
injunction to prevent any future violations. The Company acquired
Aesthera Corporation on February 26, 2010. In May 2010, the
Company reached an agreement in principle to settle the matter on
a class-wide basis by consenting to certification of a settlement
class to receive payment out of a settlement fund. On November 5,
2010, the plaintiffs filed an unopposed motion for certification
of a settlement class and for preliminary approval of the parties'
settlement. Discovery in this action has been stayed since May 6,
2010, and on December 9, 2010, the Court extended that stay until
March 9, 2011, so as to permit itself "an opportunity to review
and rule upon [plaintiffs'] pending motion." On April 15, 2011,
the Court denied plaintiffs' motion without prejudice on the
grounds that the proposed means of giving notice to the class --
i.e., via fax -- was not adequate. The Court directed the
plaintiffs to revise their motion to provide for notice to the
class via United States mail. The Court further directed that the
cost of this notice should be borne by Aesthera without reduction
to the amount of the settlement fund. If the process does not
result in approval of a settlement, then the Company anticipates
that the parties will engage in discovery and that Aesthera will
vigorously oppose certification of a class. The Company believes
that it has meritorious defenses in this action and intend to
defend the action vigorously if the proposed settlement is not
approved by the Court. The Company does not believe the final
disposition of this action will have a material adverse effect on
its financial statements and future cash flows.
STEC INC: Court Refuses to Dismiss Exchange Act Claims
------------------------------------------------------
The United States District Court for the Central District of
California denied STEC, Inc.'s motion to dismiss claims asserted
against it under the Exchange Act of 1934, according to the
Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
From November 6, 2009, through March 2, 2010, seven purported
class action complaints were filed against the Company and several
of its senior officers and directors in the United States District
Court for the Central District of California. The Court
consolidated the complaints and appointed Lead Plaintiffs. The
Court did not consider the sufficiency of Lead Plaintiff's initial
consolidated complaint and instead replaced the former Lead
Plaintiffs with a new Lead Plaintiff. The new Lead Plaintiff
filed a consolidated amended complaint that the Court dismissed
without prejudice. Thereafter, the new Lead Plaintiff filed a
second amended complaint, purportedly on behalf of all persons and
entities who acquired the Company's common stock between June 16,
2009, and February 23, 2010. The second amended complaint alleges
claims against the Company and several of its senior officers and
directors for violations of Section 10(b) of the Securities and
Exchange Act of 1934 and Rule 10b- 5 thereunder, and claims
against several of its senior officers and directors for
violations of Section 20A and Section 20(a) of the Exchange Act.
In addition, the second amended complaint alleges claims against
the Company, several of its senior officers and directors, and
four of its underwriters for violations of Section 11 and Section
12(a)(2) of the Securities Act of 1933, and claims against several
of the Company's senior officers and directors for violations of
Section 15 of the Securities Act. The second amended complaint
seeks compensatory damages for all damages sustained as a result
of the defendants' alleged actions and further seeks reasonable
costs and expenses, rescission, counsel fees, and other relief the
Court deems just and proper.
The defendants filed a motion to dismiss and on June 17, 2011, the
court entered an order granting the underwriters' motion to
dismiss the Securities Act claims without prejudice and denying
the Company's motion to dismiss the Exchange Act claims. The
Company believes the lawsuit is without merit and intends to
vigorously defend itself. No amounts have been recorded in the
consolidated financial statements for this matter as the Company
believes it is too early in the proceedings to determine an
outcome.
New Class Action Filed
On July 1, 2011, a purported class action complaint was filed
against the Company and several of its senior officers and
directors in the Superior Court of Orange County, California. The
complaint alleges claims against the Company, several of its
senior officers and directors, and four of its underwriters for
violations of Section 11 and Section 12(a)(2) of the Securities
Act, and further alleges claims against several of the Company's
senior officers and directors for violations of Section 15 of the
Securities Act. The complaint, which arises out of the same
underlying factual allegations as the consolidated federal court
class action, seeks compensatory damages and rescission or a
rescissory measure of damages where applicable, reasonable costs
and expenses, including counsel fees and expert fees, and other
relief the Court may deem just and proper.
The Company has not yet filed its response to the new state court
class action complaint. The Company believes the lawsuit is
without merit and intends to vigorously defend itself. No amounts
have been recorded in the consolidated financial statements for
this matter as the Company believes it is too early in the
proceedings to determine an outcome.
STEVEN J. BAUM: Sued Over Unfair Debt Collection Practices
----------------------------------------------------------
MFY Legal Services, Inc. and Harwood Feffer LLP filed suit on
August 4, 2011 against Steven J. Baum PC, a law firm that files
40% of the foreclosure actions in New York State, charging unfair
debt collection and deceptive practices in filing thousands of
foreclosure lawsuits.
Justice Deceived, a study of a representative sample of
foreclosure filings in Brooklyn and Queens before and after the
New York State Court's October 2010 rule requiring foreclosure law
firms to attest to the accuracy of every foreclosure summons and
complaint (the "Due Diligence Affirmation"), showed that four
large law firms filed hundreds of foreclosure cases, but failed to
file the documents that cause the case to be assigned to a judge
and trigger a state-mandated settlement conference. In 82% of
foreclosure cases filed in November 2010, lawyers failed to file
the required Request for Judicial Intervention and Due Diligence
Affirmation seven months after the case was filed.
"This is the biggest scandal since robo-signing," said Elizabeth
Lynch, an attorney at MFY Legal Services, a non-profit
organization, and author of the new report. "Homeowners are left
in limbo while they wait for the bank's law firm to file the
documents that will trigger a settlement conference, which is
their best chance of saving their home. Instead, the banks reject
their mortgage payments and charge additional fees and interest
that undercut homeowners' chances for a successful loan
modification."
In response to the robo-signing crisis, the New York State
Legislature required that attorneys filing foreclosure actions
attest to the accuracy of every foreclosure summons and complaint
and file such affirmation with their Request for Judicial
Intervention. When done properly, the case is assigned to a
judge, homeowners are notified of their right to a settlement
conference, and non-profit housing counseling agencies are also
notified so they can assist homeowners and refer them to legal
counsel.
"Steven J. Baum PC and other big firms are undermining the
protections homeowners have under the law," said Robert I.
Harwood, senior partner at Harwood Feffer LLP. "This case is about
getting everyone to play by the rules. If a law firm cannot
attest to the accuracy of the papers it is filing, it should not
file the case."
In its report, Justice Deceived, MFY recommends that the courts
take steps to ensure that homeowners have access to settlement
conferences regardless of what documents are filed, that documents
are filed as required by law, that housing counseling agencies are
informed of all filings, and that foreclosure cases be dismissed
if proper documents have not been filed by the second settlement
conference.
Justice Disserved and other details on the case can be found at
http://www.mfy.org
MFY Legal Services, Inc. is a non-profit provider of civil legal
assistance to New Yorkers who cannot afford attorneys.
Harwood Feffer LLP is a firm that specializes in complex, multi-
party litigation with an emphasis on securities and shareholder
class and derivative actions, ERISA and civil rights litigation,
antitrust matters and consumer litigation.
STREAM GLOBAL: Final Approval of Sirius Settlement Still Pending
----------------------------------------------------------------
Final approval of a settlement reached in a class action lawsuit
against Stream Global Services, Inc., alleging violation of
privacy rights remains pending.
Stream Global was named as a third-party defendant in a putative
class action captioned Kambiz Batmanghelich, on behalf of himself
and all others similarly situated and on behalf of the general
public, v. Sirius XM Radio, Inc., filed in the Los Angeles County
Superior Court on November 10, 2009, and removed to the United
States District Court for the Central District of California. The
Plaintiff alleges that Sirius XM Radio, Inc. recorded telephone
conversations between Plaintiff and members of the proposed class
of Sirius customers, on the one hand, and Sirius and its
employees, on the other, without the Plaintiff's and class
members' consent in violation of California's telephone recording
laws. The Plaintiff also alleges negligence and violation of the
common law right of privacy, and seeks injunctive relief. Stream
Global believes that it has meritorious defenses and it intends to
vigorously defend against these claims. On December 21, 2009,
Sirius XM Radio, Inc. filed a Third-Party Complaint in the action
against Stream Global, seeking indemnification for any defense
costs and damages that result from the putative class action. On
March 25, 2010, the Plaintiff filed an amended complaint that
added Stream Global as a defendant. In March 2011, the court
granted preliminary approval of a settlement proposal,
conditionally certified the settlement class, and approved the
form of class notice. Final approval of the settlement must still
be granted by the court, following the process set forth in the
court's preliminary approval order.
No updates were reported in the Company's August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Stream Global Services, Inc. is a leading global business process
outsourcing service provider specializing in customer relationship
management, including sales, customer care and technical support,
for Fortune 1000 companies. Its clients include leading
technology, computing, telecommunications, retail,
entertainment/media, and financial services companies. Its
service programs are delivered through a set of standardized best
practices and sophisticated technologies by a highly skilled
multilingual workforce with the ability to support 35 languages
across 50 locations in 22 countries.
SUPERMEDIA INC: Continues to Defend Securities Suits Vs. Officers
-----------------------------------------------------------------
Supermedia Inc. continues to defend a consolidated securities
class action lawsuit filed against its current and former
officers, according to the Company's August 3, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
On April 30, 2009, May 21, 2009, and June 5, 2009, three separate
putative class action securities lawsuits were filed in the U.S.
District Court for the Northern District of Texas, Dallas
Division, against certain of the Company's current and former
officers but not against the Company or its subsidiaries. The
suits were filed by Jan Buettgen, John Heffner, and Alan Goldberg
as three separate named plaintiffs on behalf of purchasers of the
Company's common stock between August 10, 2007 and March 31, 2009,
inclusive. On May 22, 2009, a putative class action securities
lawsuit was filed in the U.S. District Court for the Eastern
District of Arkansas against two of the Company's current officers
(but not against the Company or its subsidiaries). The suit was
filed by Wade L. Jones on behalf of purchasers of the Company's
bonds between March 27, 2008 and March 30, 2009, inclusive. On
August 18, 2009, the Wade Jones case from Arkansas federal
district court was transferred to be consolidated with the cases
filed in Texas. The complaints are virtually identical and
generally allege that the defendants violated federal securities
laws by issuing false and misleading statements regarding the
Company's financial performance and condition. Specifically, the
complaints allege violations by the defendants of Section 10(b) of
the Exchange Act, Rule 10b-5 under the Exchange Act and Section 20
of the Exchange Act. The plaintiffs are seeking unspecified
compensatory damages and reimbursement for litigation expenses.
Since the filing of the complaints, all four cases have been
consolidated into one court in the Northern District of Texas and
a lead plaintiff and lead plaintiffs' attorney have been selected
(the "Buettgen" case). On April 12, 2010, the Company filed a
motion to dismiss the entire Buettgen complaint. On August 11,
2010, in a one line order without an opinion, the Court denied the
Company's motion to dismiss. Subsequently, the Court entered a
scheduling order setting out a timetable for proceedings to
consider class certification and administratively closing the
case. The plaintiffs have filed their class certification motion
and the Company filed its opposition on January 14, 2011.
On May 19, 2011, the Court granted the plaintiffs' motion
certifying a class. Subsequently, the Fifth Circuit Court of
Appeals denied the Company's petition for an interlocutory appeal
of the class certification order. The Company plans to honor its
indemnification obligations and vigorously defend the lawsuit on
the defendants' behalf.
SuperMedia Inc. and its subsidiaries sell advertising solutions to
clients and place their advertising into various advertising
media. The Company's advertising media include Superpages yellow
page directories, Superpages.com, its online local search
resource, the Superpages.com network, an online advertising
network, Superpages direct mailers, and Superpages mobile, its
local search application for wireless subscribers. The Company
offers the SuperGuarantee program, which is a consumer focused
program designed to make it easier and faster for consumers to
find businesses they trust. The Company is the official publisher
of Verizon Communications Inc. print directories in the markets in
which Verizon is currently the incumbent local telephone exchange
carrier.
SUPERMEDIA INC: Continues to Defend "Bell" Retirees Class Suit
--------------------------------------------------------------
Supermedia Inc. continues to defend itself against a class action
lawsuit related to its pension plans, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On November 25, 2009, three former Bell retirees brought a class
action lawsuit in the U.S. District Court for the Northern
District of Texas, Dallas Division, against both the Verizon
employee benefits committee and pension plans and the Company's
employee benefits committee (the "EBC") and pension plans. All
three named plaintiffs are receiving the single life monthly
annuity pension benefits. All complain that Verizon
Communications, Inc., transferred them against their will from the
Verizon pension plans to the Company pension plans at or near the
Company's spin-off from Verizon. The complaint alleges that both
Verizon and Company defendants failed to provide requested plan
documents, which would entitle the plaintiffs to statutory
penalties under ERISA; that both Verizon and Company defendants
breached their fiduciary duty for refusal to disclose pension plan
information; and other class action counts aimed solely at the
Verizon defendants. The plaintiffs seek class action status,
statutory penalties, damages and a reversal of the employee
transfers. The Company defendants filed their motion to dismiss
the entire complaint on March 10, 2010. On October 18, 2010, the
Court ruled on the pending motion dismissing all the claims
against the Company pension plans and all of the claims against
the Company's EBC relating to the production of documents and
statutory penalties for failure to produce same. The only claims
remaining against the Company are procedural ERISA claims against
the Company's EBC. On November 1, 2010, the Company's EBC filed
its answer to the complaint. On November 4, 2010, the Company's
EBC filed a motion to dismiss one of the two remaining procedural
ERISA claims against the EBC. Pursuant to an agreed order, the
plaintiffs have obtained class certification against the Verizon
defendants and discovery has commenced. After obtaining
permission from the Court, the Plaintiffs filed another amendment
to the complaint, alleging a new count against the Company's EBC.
The Company's EBC filed another motion to dismiss the amended
complaint and all defendants plan to file a summary judgment
motion before the deadline set by the scheduling order. The
Company plans to honor its indemnification obligations and
vigorously defend the lawsuit on the defendants' behalf.
SuperMedia Inc. and its subsidiaries sell advertising solutions to
clients and place their advertising into various advertising
media. The Company's advertising media include Superpages yellow
page directories, Superpages.com, its online local search
resource, the Superpages.com network, an online advertising
network, Superpages direct mailers, and Superpages mobile, its
local search application for wireless subscribers. The Company
offers the SuperGuarantee program, which is a consumer focused
program designed to make it easier and faster for consumers to
find businesses they trust. The Company is the official publisher
of Verizon Communications Inc. print directories in the markets in
which Verizon is currently the incumbent local telephone exchange
carrier.
SUPERMEDIA INC: Awaits Ruling on 2nd Motion to Dismiss Class Suit
-----------------------------------------------------------------
Supermedia Inc. is awaiting a court ruling on its motion to
dismiss an amended class action complaint brought by a former
employee against the Company's officers, the Company disclosed in
its August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On December 10, 2009, a former employee with a history of
litigation against the Company filed a putative class action
lawsuit in the U.S. District Court for the Northern District of
Texas, Dallas Division, against certain of the Company's current
and former officers, directors and members of the Company's EBC.
The complaint attempts to recover alleged losses to the various
savings plans that were allegedly caused by the breach of
fiduciary duties in violation of ERISA by the defendants in
administrating the plans from November 17, 2006 to March 31, 2009.
The complaint alleges that: (i) the defendants wrongfully allowed
all the plans to invest in Idearc common stock, (ii) the
defendants made material misrepresentations regarding the
Company's financial performance and condition, (iii) the
defendants had divided loyalties, (iv) the defendants mismanaged
the plan assets, and (v) certain defendants breached their duty to
monitor and inform the EBC of required disclosures. The
plaintiffs are seeking unspecified compensatory damages and
reimbursement for litigation expenses. At this time, a class has
not been certified. The plaintiffs have filed a consolidated
complaint. The Company filed a motion to dismiss the entire
complaint on June 22, 2010. On March 16, 2011, the Court granted
the Company defendants' motion to dismiss the entire complaint;
however, the plaintiffs have replead their complaint. The Company
defendants have filed another motion to dismiss the new complaint.
The briefing on the motion is complete and the Company awaits the
order of the Court. The Company plans to honor its
indemnification obligations and vigorously defend the lawsuit on
the defendants' behalf.
SuperMedia Inc. and its subsidiaries sell advertising solutions to
clients and place their advertising into various advertising
media. The Company's advertising media include Superpages yellow
page directories, Superpages.com, its online local search
resource, the Superpages.com network, an online advertising
network, Superpages direct mailers, and Superpages mobile, its
local search application for wireless subscribers. The Company
offers the SuperGuarantee program, which is a consumer focused
program designed to make it easier and faster for consumers to
find businesses they trust. The Company is the official publisher
of Verizon Communications Inc. print directories in the markets in
which Verizon is currently the incumbent local telephone exchange
carrier.
TRANSOCEAN LTD: Securities Suits in New York Remain Pending
-----------------------------------------------------------
Two federal securities class action lawsuits filed against
Transocean Ltd. remain pending in a New York court, according to
the Company's August 3, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
Two federal securities law class actions are currently pending in
the U.S. District Court, Southern District of New York, naming the
Company and certain of its officers and directors as defendants.
One of these actions generally allege violations of Section 10(b)
of the Securities Exchange Act of 1934, Rule 10b-5 promulgated
under the Exchange Act and Section 20(a) of the Exchange Act in
connection with the April 2010 Macondo well blowout incident. The
plaintiffs are generally seeking awards of unspecified economic
damages, including damages resulting from the decline in the
Company's stock price after the Macondo well incident. The other
action was filed by a former GlobalSantaFe shareholder alleging
that the proxy statement related to the Company's shareholder
meeting in connection with the Company's merger with GlobalSantaFe
violated Section 14(a) of the Exchange Act, Rule 14a-9 promulgated
thereunder and Section 20(a) of the Exchange Act. The plaintiff
claims that GlobalSantaFe shareholders received inadequate
consideration for their shares as a result of the alleged
violations and seeks rescission and compensatory damages.
Headquartered in Vernier, Switzerland, Transocean Ltd. provides
offshore contract drilling services for oil and gas wells.
Specializing in technically demanding sectors of the offshore
drilling business with a particular focus on deepwater and harsh
environment drilling services, the Company contracts its drilling
rigs, related equipment and work crews predominantly on a dayrate
basis to drill oil and gas wells.
UNUM GROUP: Subsidiary Continues to Defend Class Suit in Maine
--------------------------------------------------------------
A U.S. subsidiary of Unum Group continues to defend itself from a
class action lawsuit filed in Maine, according to the Company's
August 3, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarterly period ended June 30, 2011.
In October 2010, Denise Merrimon, Bobby S. Mowery, and all others
similarly situated vs. Unum Life Insurance Company of America, was
filed in the United States District Court for the District of
Maine. This is a putative class action alleging that Unum
breached fiduciary duties owed to certain beneficiaries under
certain group life insurance policies when it paid life insurance
proceeds by establishing interest-bearing retained asset accounts
rather than by mailing checks. Plaintiffs seek to represent a
class of beneficiaries under group life insurance contracts that
were employee welfare benefit plans under ERISA and under which
Unum paid death benefits pursuant to a retained asset account.
Plaintiffs seek to recover on behalf of the class the difference
between the interest paid to them and amounts alleged to have been
realized by Unum through its investment of the retained assets.
Unum intends to vigorously defend the action.
WEBMD HEALTH: Five Law Firms File Class Action
----------------------------------------------
Joseph Goedert, writing for HDM Breaking News, reports that at
least five law firms have filed class action lawsuits against
online consumer health care content vendor WebMD Health Corp.,
charging the company with misrepresenting its financial position.
The lawsuits stem from WebMD's stock price falling 30% on July 18
after the company downgraded its financial performance for the
rest of 2011.
The suits allege that beginning with the release of its financial
results for the fourth quarter of 2010 on Feb. 23, 2011, the
company issued a series of financial statements that did not
reflect adverse material facts about sponsorship cancellations.
For instance, WebMD's press release on Feb. 23 quoted CEO Wayne
Gattinella as saying, "We enter 2011 strongly positioned to
benefit as biopharma and consumer products companies continue to
shift their marketing spend to online channels."
In subsequent months, company insiders sold $44.7 million in WebMD
stock, the suits allege.
Then on July 18, WebMD announced expectations for lower revenue
for the rest of the year and possibly beyond. Factors affecting
the new financial forecast include extended internal and
regulatory review of biopharmaceutical sponsorship programs that
are causing delays in launching the programs, unexpected delays or
cancellations of new sponsorships sold in previous quarters that
were scheduled to launch this year, and lower licensing revenue
resulting from fewer anticipated new customers. The company
expects during the third quarter to launch new sponsorship
services, and for advertising and sponsorship revenue growth to
improve starting in mid-2012.
WebMD did not quickly respond to a request for comment. A copy of
one of the lawsuits is available at:
http://www.rgrdlaw.com/media/cases/70_Complaint.pdf
WELLCARE HEALTH: Appeal Delays Issuance of $112.5 Million Notes
---------------------------------------------------------------
Wellcare Health Plans, Inc., disclosed in its August 3, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011, that a stockholder appeal has
delayed the time when the Company must issue the $112,500,000 in
notes, required under the settlement of a consolidated class
action lawsuit.
Putative class action complaints were filed in October 2007 and in
November 2007. These putative class actions, entitled Eastwood
Enterprises, L.L.C. v. Farha, et al. and Hutton v. WellCare Health
Plans, Inc. et al., respectively, were filed in Federal Court
against the Company, Todd Farha, its former chairman and chief
executive officer, and Paul Behrens, its former senior vice
president and chief financial officer. Messrs. Farha and Behrens
were also officers of various subsidiaries of the Company. The
Eastwood Enterprises complaint alleged that the defendants
materially misstated the Company's reported financial condition
by, among other things, purportedly overstating revenue and
understating expenses in amounts unspecified in the pleading in
violation of the Securities Exchange Act of 1934, as amended
("Exchange Act"). The Hutton complaint alleged that various public
statements supposedly issued by the defendants were materially
misleading because they failed to disclose that the Company was
purportedly operating its business in a potentially illegal and
improper manner in violation of applicable federal guidelines and
regulations. The complaint asserted claims under the Exchange Act.
Both complaints sought, among other things, certification as a
class action and damages. The two actions were consolidated, and
various parties and law firms filed motions seeking to be
designated as Lead Plaintiff and Lead Counsel. In an order issued
in March 2008, the Federal Court appointed a group of five public
pension funds from New Mexico, Louisiana and Chicago (the "Public
Pension Fund Group") as Lead Plaintiffs. In October 2008, an
amended consolidated complaint was filed in this class action
asserting claims against the Company, Messrs. Farha and Behrens,
and adding Thaddeus Bereday, its former senior vice president and
general counsel, as a defendant.
In January 2009, the Company and certain other defendants filed a
joint motion to dismiss the amended consolidated complaint,
arguing, among other things, that the complaint failed to allege a
material misstatement by defendants with respect to its compliance
with marketing and other health care regulations and failed to
plead facts raising a strong inference of scienter with respect to
all aspects of the purported fraud claim. The Federal Court denied
the motion in September 2009 and the Company and the other
defendants filed its answer to the amended consolidated complaint
in November 2009. In April 2010, the Lead Plaintiffs filed their
motion for class certification. On June 18, 2010, the USAO filed
motions seeking to intervene and for a temporary stay of discovery
of this matter. Discovery was stayed through March 17, 2011.
In August 2010, the Company reached agreement with the Lead
Plaintiffs on the material terms of a settlement to resolve these
matters. In December 2010, the terms of the settlement were
documented in a formal settlement agreement (the "Stipulation
Agreement") that was subject to approval by the Federal Court
following notice to all class members. On February 9, 2011, the
Federal Court entered an order preliminarily approving the
settlement and scheduled the final settlement hearing for May 4,
2011.
On May 4, 2011, the Federal Court entered an order approving the
Stipulation Agreement. As required by the Stipulation Agreement,
in March 2011, the Company paid $52,500,000 into an escrow account
for the benefit of the class. The Stipulation Agreement also
provides, among other things, that the Company make an additional
cash payment to the class of $35,000,000 and accordingly, in
May 2011, the Company delivered to the escrow agent on behalf of
the class, a $35,000,000 non-negotiable, non-interest bearing
promissory note that was due and payable in full on July 31, 2011.
This note was issued on May 5, 2011, and is included as a part of
the Company's current liabilities in the Note payable related to
investigation resolution line item in its Condensed Consolidated
Balance Sheet as of June 30, 2011. This amount was paid in full on
July 28, 2011.
The Stipulation Agreement also requires, among other things, that
the Company issue to the class tradable unsecured subordinated
notes having an aggregate face value of $112,500,000, with a fixed
coupon of 6% and a maturity date of December 31, 2016.
Additionally, the Company will be required to pay to the class an
additional $25,000,000 if the Company experiences a change in
control at a share price of $30.00 or more within three years of
the date of the Stipulation Agreement.
On June 3, 2011, an individual stockholder, who may not qualify as
a member of the class, filed a notice of appeal. In response, the
Lead Plaintiffs moved to require this stockholder to post an
appeal bond. Recently, the Federal Court issued an order
requiring the individual stockholder to post an appeal bond to
cover the costs of the appeal, however the stockholder did not
post a bond by the required deadline. This appeal has delayed the
time when the Company must issue the $112,500,000 in notes, which
will not occur until forty-five days after the settlement is
deemed final. The Company is unable to determine at this time
when the settlement will be finalized.
As a result of the settlement having been reached and the issuance
of the $35,000,000 note payable, the Company's estimate of the
remaining resolution amount for this matter is $112,500,000. The
Company has discounted the liability for the resolution of this
matter and accrued this amount, plus interest, at its estimated
fair value, which amounted to approximately $111,397,000 at
June 30, 2011. Approximately $5,215,000 and $106,182,000 have
been included in the current and long-term portions, respectively,
of Amounts accrued related to investigation resolution in the
Company's Condensed Consolidated Balance Sheet as of June 30,
2011.
WELLS FARGO: Wants Judge to Resolve Class Contradictions
--------------------------------------------------------
Steve Korris, writing for The Madison St. Clair Record, reports
that Wells Fargo and Fifth Third banks call on Madison County
Associate Judge Thomas Chapman to resolve contradictions they see
between two orders that retired circuit Judge Daniel Stack signed
when he certified a class action against them.
Judge Stack granted summary judgment to defendants on all claims
but negligence last November, and he certified a class action on
negligence.
The class consists of 649 individuals in 38 states who completed
2,013 transactions in connection with tax free bond issues of
$40,550,000, for seven nursing homes.
The nonprofit bond issuer, Malachi Corporation, defaulted on the
bonds.
Wells Fargo moved for reconsideration of class certification in
June, claiming Judge Stack's summary judgment order cleared them
of any role in any negligence.
David Wells of St. Louis wrote that the class certification order
failed to incorporate findings within the summary judgment order.
"As a result, the class certification order and the summary
judgment order are contradictory," he wrote.
He wrote that the obligation to pay the bonds rested exclusively
on Malachi.
"The bonds were unrated, and as such involved a high degree of
risk as explicitly stated in the official statements," he wrote.
He wrote that proceedings in Wisconsin and Minnesota recovered
most of the proceeds through sale of the nursing homes.
He wrote that Judge Stack applied Illinois law even though only 57
individuals reside there.
He wrote that Judge Stack failed to analyze variations in laws of
38 states.
"Applying Illinois law to the entire class of bondholders violates
due process and controlling Illinois law," he wrote.
"This motion was not filed sooner due to the parties failing to
agree until recently on the judicial assignment of this case."
Fifth Third joined the motion in July.
So did bond counsel Gilmore and Bell, and investment adviser Blue
and Company.
Christopher Threlkeld, of Lucco and Brown in Edwardsville,
represents the class.
Wells practices at Thompson Coburn. Catherine Schroeder of the
same firm worked on the brief. So did Patrick McLaughlin, of
Dorsey and Whitney in Minneapolis.
Judge Chapman plans a hearing Aug. 30.
WYETH CANADA: B.C. Supreme Court Certifies HRT Class Action
-----------------------------------------------------------
Klein Lyons on August 5 disclosed that the British Columbia
Supreme Court has certified a class action on behalf of Canadian
women who suffered breast cancer after taking hormone replacement
therapy. The case is Stanway v. Wyeth Canada Inc. et al. The
Defendants are the makers of Premarin and Premplus which are sold
as prescription drugs for relief of symptoms of menopause. The
Plaintiff, Dianna Stanway of Sechelt, British Columbia, took
Premarin for 7 years. She stopped taking the drug after reading
news reports linking it to breast cancer. This came too late
however, as she was diagnosed with ductal and lobular breast
cancer just 2 months after she had stopped taking the drug. The
Plaintiff alleges that the Defendants marketed their hormone
replacement products for decades without sufficient research as to
their safety, and that the Defendants failed to investigate
warning signs, dating back to the 1970s, concerning the risks
posed by their drugs. Worse, the Plaintiff alleges that the
Defendants used "ghostwriting" in scientific journals to distort
and downplay these risks.
Explains Ms. Stanway, "I never would have taken Premarin if I had
been told of the risks. Fortunately, I won my battle with breast
cancer. Not everyone is so lucky. I want my lawsuit to help all
Canadian women, and their families, who have been harmed by this
drug."
Ms. Stanway's lawyer, Douglas Lennox, states: "This case concerns
important public health issues. When information about the risks
of breast cancer and HRT was first published, sales of the
Defendants' products plunged in Canada and in countries around the
world. This was followed by an unprecedented drop in the rates of
breast cancer in Canada and in other countries. This
epidemiological evidence suggests that the Defendants' products
may have been responsible for literally thousands of needless
cancers."
David Klein, also counsel for Ms. Stanway, adds, "We look forward
to bringing this case to trial. Many similar lawsuits have
already been successfully tried to conclusion in the United
States, resulting in repeated verdicts against the Defendants.
This has lead to the settlement of more than 3300 cases in that
country. Pfizer Inc., which purchased the Defendants two years
ago, recently set aside $772 million to resolve remaining claims
in the United States. The drug is the same, no matter which side
of the border it is sold on. The harm is the same. It is time
for the Defendants to also compensate injured Canadian women."
About Klein Lyons
For over 20 years, Klein Lyons -- http://www.kleinlyons.com--
has been helping car accident victims and class-action clients
across Canada. If you have been injured by no fault of your own,
Klein Lyons offers dedicated expertise in motor vehicle accidents,
personal injury and class action law.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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USA, and Beard Group, Inc., Frederick, Maryland USA. Leah
Felisilda, Noemi Irene A. Adala, Joy A. Agravante, Julie Anne
Lopez, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
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