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C L A S S A C T I O N R E P O R T E R
Tuesday, August 16, 2011, Vol. 13, No. 161
Headlines
ACE LIMITED: Continues to Defend Suits Over Business Practices
ALLIED HEALTHCARE: Faces Merger-Related Class Suit in New York
AMAG PHARMACEUTICALS: Continues to Defend "Silverstrand" Suit
AMAG PHARMACEUTICALS: Faces 7 Suits Over Proposed Allos Merger
AMERICAN INTERNATIONAL: Continues to Defend Securities Suit in NY
AMERICAN INTERNATIONAL: Continues to Defend ERISA Lawsuit in NY
AMERICAN INTERNATIONAL: Securities Suit Still Pending in Ontario
AMERICAN INTERNATIONAL: Accrued for NY Suit Full Settlement Amt.
AMERICAN INTERNATIONAL: Final Fairness Hearing Set for Sept. 14
AMERICAN INTERNATIONAL: Continues to Face "Caremark" Suit in Ala.
AT&T INC: Class Action Over Defective U-Verse Phone Dismissed
ATRICURE INC: Insurance Carrier Pays Class Claim in "Levine" Suit
CAMBREX CORP: Continues to Defend Lorazepam and Clorazepate Suit
CITIGROUP INC: Appeal From Dismissal of ARS-Related Suit Pending
CITIGROUP INC: Appeal in ERISA-Violations Suit Remains Pending
CITIGROUP INC: Awaits Ruling in Interchange Fees-Related Suit
CITIGROUP INC: Motion to Consolidate LIBOR-Related Suits Pending
CITIGROUP INC: Motion to Dismiss Research-Related Suit Pending
CITIGROUP INC: Plaintiffs Seek Class Standing in CDO-Related Suit
CITIGROUP INC: Plea for Class Standing in Bond Suit Still Pending
CONSTELLATION ENERGY: Continues to Defend Suit Over Exelon Merger
CONSTELLATION ENERGY: Continues to Defend Securities Suit in Md.
CONTINENTAL RESOURCES: Discovery in Royalty Fee Suit Ongoing
DEPUY ORTHOPAEDICS: Locals Can Join Class Action at No Cost
DYNEX CAPITAL: Trial in "Teamsters" Class Suit Set for November
DYNEX CAPITAL: Unit Continues to Defend Suit in Pennsylvania
EBIX INC: Holzer Holzer & Fistel Files Class Action in Georgia
EMERGENT BIOSOLUTIONS: Court Dismisses Trubion-Related Class Suit
EQT CORP: Balks at Ruling on Coalbed Methane Class Action
EQUITY LIFESTYLE: Continues to Defend Wage Claim Class Suits
EXPEDITORS INTERNATIONAL: Plea to Dismiss N.Y. Suit Still Pending
GAMESTOP CORP: Faces Class Action Over Unsolicited Text Ads
GREAT SOUTHERN: Continues to Defend Overdraft Fees Suit
HARLAND CLARK: LaserPro-Related Class Suits Still Pending
HAWAII SCHOOL: Faces Class Action Over Sexual Abuse
HAWAIIAN ELECTRIC: Continues to Defend Suit Over Overdraft Fees
HEARTWARE INTERNATIONAL: Faces Suit by Preferred Stockholders
JONES FINANCIAL: Unit Continues to Defend Suit Over Certificates
JONES FINANCIAL: Motion to Dismiss Lehman-Related Suit Pending
KEYCORP: Motion to Dismiss Madoff-Related Suit Still Pending
KINETIC CONCEPTS: Faces Two Shareholder Suits in Texas Over Merger
KOHLBERG CAPITAL: Plaintiff Has Until Aug. 22 to Amend Complaint
LEGGETT & PLATT: Continues to Defend Antitrust Suits in Ohio
LEXMARK INT'L: Appeal From $8.3MM Award in "Molina" Suit Pending
LINCOLN EDUCATIONAL: Awaits Ruling on Motion to Dismiss Class Suit
LOOPNET INC: Signs MOU to Settle Merger-Related Class Suits
MANNKIND CORP: Continues to Defend Consolidated Shareholder Suit
MOHAWK INDUSTRIES: Court Refuses to Dismiss Polyurethane Suit
NASCAR HOLDINGS: Sued for Sending Unsolicited Spam Text Messages
NEW YORK LAW: Manipulates Employment Statistics, Suit Says
NEXCEN BRANDS: Dec. 2 Class Action Settlement Hearing Set
NORTHWEST PIPE: Awaits Ruling on Motion to Dismiss "Plumbers" Suit
OCWEN FINANCIAL: Obtains Final Approval of Class Suit Settlement
OKLAHOMA: Judge Delays DHS Class Action Trial Until February 2012
ORMAT TECHNOLOGIES: Certification Motion Pending in Nevada Suit
PHILIPS LIGHTING: Recalls 1.86-MM Dimmable Reflector Flood Lamps
PITNEY BOWES: Awaits Decision on Plea to Dismiss NECA-IBEW Suit
PITNEY BOWES: Still Awaits Order on Plea to Dismiss Suit vs. Unit
RADIANT SYSTEMS: Court Consolidates 3 Merger-Related Suits
SATCON TECHNOLOGY: Holzer Holzer & Fistel Files Class Action
SONY: Aware of Data Breach Risk, Playstation Class Action Claims
SOUTHERN COPPER: Awaits Ruling in Suit Over Minera Mexico Merger
SOUTHERN COPPER: Awaits Order on Plea to Consolidate "AMC" Suits
SOUTHWEST AIR: Sued for Illegally Collecting Taxes on Tickets
SPIRIT AEROSYSTEMS: Continues to Defend Age Discrimination Suit
SPIRIT AEROSYSTEMS: Continues to Defend ERISA Class Suit in Kansas
STATE STREET: Continues to Defend "Deceptive Practice" Suit
STATE STREET: Continues to Defend Shareholder-Related Suits
SUN HEALTHCARE: Unit Awaits Court Okay of Class Suit Settlement
TEXAS ROADHOUSE: Continues to Defend "Crenshaw" Suit in Mass.
TRANSATLANTIC HOLDINGS: Continues to Defend Merger-Related Suits
TYSON FOODS: Remains a Defendant in "Thompson" Suit
TYSON FOODS: FLSA MDL Parties Continue to Work on Remaining Suits
TYSON FOODS: Awaits Ruling on Motion to Certify "Weissman" Lawsuit
VALHI INC: Appeals in Lead Pigment Litigation Still Pending
VENTAS INC: Continues to Defend NHP-Related Suits in Calif. & Md.
VERIZON CALIFORNIA: Accused of Defrauding Phone Customers
VIVUS INC: Oct. 5 Hearing Set for Motion to Dismiss "Kovtun" Suit
WARNER CHILCOTT: Continues to Defend ACTONEL Suits in Canada
WARNER CHILCOTT: Continues to Defend FLSA Suit in Illinois
WELLS FARGO: AARP Class Action May Include Past HECM Borrowers
XL GROUP: Fairness Hearing Set for September in Suit vs. Unit
YAHOO! INC: Appeals in Consolidated Suit vs. Unit Still Pending
YAHOO! INC: Continues to Defend Securities Suit in California
*********
ACE LIMITED: Continues to Defend Suits Over Business Practices
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ACE Limited continues to defend itself against various class
action lawsuits related to its business practices, according to
the Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
ACE, ACE INA Holdings Inc., and ACE USA, Inc., along with a number
of other insurers and brokers, were named in a series of federal
putative nationwide class actions brought by insurance
policyholders. The Judicial Panel on Multidistrict Litigation
(JPML) consolidated these cases in the District of New Jersey. On
August 1, 2005, plaintiffs in the New Jersey consolidated
proceedings filed two consolidated amended complaints -- one
concerning commercial insurance and the other concerning employee
benefit plans. The employee benefit plans litigation against ACE
has been dismissed.
In the commercial insurance complaint, the plaintiffs named ACE,
ACE INA Holdings Inc., ACE USA, Inc., ACE American Insurance Co.,
Illinois Union Insurance Co., and Indemnity Insurance Co. of North
America. They allege that certain brokers and insurers, including
certain ACE entities, conspired to increase premiums and allocate
customers through the use of "B" quotes and contingent
commissions. In addition, they allege that the broker defendants
received additional income by improperly placing their clients'
business with insurers through related wholesale entities that
acted as intermediaries between brokers and insurers. Plaintiffs
also allege that broker defendants tied the purchase of primary
insurance to the placement of such coverage with reinsurance
carriers through the broker defendants' reinsurance broker
subsidiaries. The complaint asserts the following causes of action
against ACE: Federal Racketeer Influenced and Corrupt
Organizations Act (RICO), federal antitrust law, state antitrust
law, aiding and abetting breach of fiduciary duty, and unjust
enrichment.
In 2006 and 2007, the Court dismissed plaintiffs' first two
attempts to properly plead a case without prejudice and permitted
plaintiffs one final opportunity to re-plead. The amended
complaint, filed on May 22, 2007, purported to add several new ACE
defendants: ACE Group Holdings, Inc., ACE US Holdings, Inc.,
Westchester Fire Insurance Company, INA Corporation, INA Financial
Corporation, INA Holdings Corporation, ACE Property and Casualty
Insurance Company, and Pacific Employers Insurance Company.
Plaintiffs also added a new antitrust claim against Marsh, ACE,
and other insurers based on the same allegations as the other
claims but limited to excess casualty insurance. In 2007, the
Court granted defendants' motions to dismiss plaintiffs' antitrust
and RICO claims with prejudice. The Court also declined to
exercise supplemental jurisdiction over plaintiffs' state law
claims and dismissed those claims without prejudice. Plaintiffs
appealed to the United States Court of Appeals for the Third
Circuit. On August 16, 2010, the Third Circuit affirmed, in part,
and vacated, in part, the District Court's previous dismissals
with instructions for further briefing at the District Court on
remand. Defendants renewed their motions consistent with the Third
Circuit's instructions. On June 28, 2011, the District Court
administratively terminated defendants' motions without prejudice
to re-file after adjudication of issues related to a proposed
class settlement involving a number of other parties. The Court
set September 14, 2011 for a fairness hearing on the proposed
settlement, but did not indicate when it would finally resolve all
issues such that ACE may re-file its motions to dismiss.
As of August 3, 2011, plaintiffs have not specified an amount of
alleged damages and the Court has not decided defendants' renewed
motions to dismiss. The Court has also not determined if this case
may proceed as a class action and has, therefore, not determined
the size or scope of any class. As a result, ACE is unable to
reasonably estimate the potential loss or range of losses, if any,
arising from this litigation.
There are a number of federal actions brought by policyholders
based on allegations similar to the allegations in the
consolidated federal actions that were filed in, or transferred
to, the United States District Court for the District of New
Jersey for coordination ("tag-along cases"). All proceedings in
these tag-along cases are currently stayed.
* New Cingular Wireless Headquarters LLC et al. v. Marsh &
McLennan Companies, Inc. et al. (Case No. 06-5120; D.N.J.),
was originally filed in the Northern District of Georgia on
April 4, 2006. ACE, ACE American Ins. Co., ACE USA, Inc., ACE
Bermuda Ins. Co. Ltd., Illinois Union Ins. Co., Pacific
Employers Ins. Co., and Lloyd's of London Syndicate 2488 AGM,
along with a number of other insurers and brokers, are named.
* Avery Dennison Corp. v. Marsh & McLennan Companies, Inc. et
al. (Case No. 07-00757; D.N.J.) was filed on February 13,
2007. ACE, ACE INA Holdings Inc., ACE USA, Inc., and ACE
American Insurance Co., along with a number of other insurers
and brokers, are named.
* Henley Management Co., Inc. et al v. Marsh, Inc. et al. (Case
No. 07-2389; D.N.J.) was filed on May 27, 2007. ACE USA,
Inc., along with a number of other insurers and Marsh, are
named.
* Lincoln Adventures LLC et al. v. Those Certain Underwriters
at Lloyd's, London Members of Syndicates 0033 et al. (Case
No. 07-60991; D.N.J.) was originally filed in the Southern
District of Florida on July 13, 2007. Supreme Auto Transport
LLC et al. v. Certain Underwriters of Lloyd's of London, et
al. (Case No. 07-6703; D.N.J.) was originally filed in the
Southern District of New York on July 25, 2007. Lloyd's of
London Syndicate 2488 AGM, along with a number of other
Lloyd's of London Syndicates and various brokers, are named
in both actions. The allegations in these putative class-
action lawsuits are similar to the allegations in the
consolidated federal actions, although these lawsuits focus
on alleged conduct within the London insurance market.
* Sears, Roebuck & Co. et al. v. Marsh & McLennan Companies,
Inc. et al. (Case No. 07-2535; D.N.J.) was originally filed
in the Northern District of Georgia on October 12, 2007. ACE
American Insurance Co., ACE Bermuda Insurance Ltd., and
Westchester Surplus Lines Insurance Co., along with a number
of other insurers and brokers, are named.
As of August 3, 2011, plaintiffs have not specified an amount
of alleged damages in any of the tag-along cases. The
proceedings in the tag-along cases were stayed at a very
early stage, before ACE could challenge the sufficiency of
the claims with, for example, motions to dismiss. Also, the
scope of the tag-along cases, in large part, will be affected
by the outcome of the MDL Court's decision on defendants'
renewed motions to dismiss. As a result, ACE is unable to
reasonably estimate the potential loss or range of losses, if
any, arising from these litigations.
In addition to the related federal cases, there are two pending
state cases with allegations similar to those in the consolidated
federal actions:
* Van Emden Management Corporation v. Marsh & McLennan
Companies, Inc., et al. (Case No. 05-0066A; Superior Court of
Massachusetts), a class action in Massachusetts, was filed on
January 13, 2005. Illinois Union Insurance Company is named.
The Van Emden case has been stayed pending resolution of the
consolidated proceedings in the District of New Jersey or
until further order of the Court.
As of August 3, 2011, plaintiffs have not specified an amount
of alleged damages in this case. The proceedings were stayed
at a very early stage, before ACE could challenge the
sufficiency of the claims with, for example, a motion to
dismiss. As a result, ACE is unable to reasonably estimate
the potential loss or range of losses, if any, arising from
this litigation.
* State of Ohio, ex. rel. Marc E. Dann, Attorney General v.
American Int'l Group, Inc. et al. (Case No. 07-633857; Court
of Common Pleas in Cuyahoga County, Ohio) is an Ohio state
action filed by the Ohio Attorney General on August 24, 2007.
ACE INA Holdings Inc., ACE American Insurance Co., ACE
Property & Casualty Insurance Co., Insurance Company of North
America, and Westchester Fire Insurance Co., along with a
number of other insurance companies and Marsh, are named.
Defendants filed motions to dismiss in November 2007. On
July 2, 2008, the court denied all of the defendants'
motions. Discovery is ongoing. Trial is set for September 12,
2011.
In January 2011, plaintiff submitted an expert report in
which it claims that ACE should be liable for $11.3 million
in overcharges to Ohio public entities; plaintiffs may claim
that this amount should be trebled pursuant to Ohio antitrust
law. Plaintiff also seeks to impose a $10.3 million penalty
on ACE related to ACE's sales of private insurance in Ohio.
ACE believes that these claims are without merit and
continues to defend them vigorously.
In all of the lawsuits, except where specifically noted,
plaintiffs seek compensatory and in some cases special damages
without specifying an amount. As a result, ACE cannot at this time
estimate its potential costs related to these legal matters and,
accordingly, no liability for compensatory damages has been
established in the consolidated financial statements.
ACE's ultimate liability for these matters is not likely to have a
material adverse effect on ACE's consolidated financial condition,
although it is possible that the effect could be material to ACE's
consolidated results of operations for an individual reporting
period.
ALLIED HEALTHCARE: Faces Merger-Related Class Suit in New York
--------------------------------------------------------------
Allied Healthcare International Inc. is facing a class action
lawsuit challenging its proposed merger with Saga Group Limited,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On July 28, 2010 the Company entered into an Agreement and Plan of
Merger (the "Merger Agreement") with Saga Group Limited ("Saga")
and AHL Acquisition Corp., a wholly-owned subsidiary of Saga
("Acquisition Sub"). Upon the consummation of the merger
contemplated by the Merger Agreement, each outstanding share of
Company common stock, other than shares owned by Saga, Acquisition
Sub or any other wholly-owned subsidiary of Saga and shares held
in the treasury of the Company, will be converted into the right
to receive $3.90 in cash, without interest. Each outstanding
option and stock appreciation right ("SAR") that has vested prior
to the merger, including those options and SARs that vest as a
result of the merger, will be converted into the right to receive
$3.90 less the per share exercise price of the option or SAR,
multiplied by the number of shares of common stock subject to such
option or SAR. If the exercise price of any option or SAR is equal
to or greater than $3.90, the option or SAR will be cancelled
without payment. The completion of the merger is subject to
various conditions, including, among others, obtaining the
approval of the Company's shareholders, which, under New York law,
will require the vote of at least two-thirds of the Company's
outstanding shares of common stock. The parties expect to notify
the merger to the Competition Authority in Ireland, where the
Company and affiliates of Saga have operations, as soon as
possible. Consummation of the merger is not subject to a financing
condition. The Merger Agreement provides that it may be terminated
by either party if the merger contemplated thereby has not
occurred on or prior to December 31, 2011; provided, however, that
if the only reason for the failure to consummate the merger on or
before such date is the failure to have obtained the necessary
antitrust clearance in Ireland, the termination date shall be
extended to February 29, 2012. Under the Merger Agreement, the
Company may be required to pay Saga a termination fee of $5.2
million under certain circumstances, including if the Board of
Directors of the Company, following the receipt of a superior
proposal, changes its recommendation to the shareholders to vote
in favor of the merger.
In connection with the execution of the Merger Agreement, the
Company entered into a retention bonus agreement with its Chief
Executive Officer and Allied Healthcare Group Limited, a
subsidiary of the Company, entered into a retention bonus
agreement with the Chief Financial Officer of the Company.
On August 3, 2011, a putative class action complaint was filed by
a shareholder of the Company against the Company, the members of
the Company's Board of Directors, Saga and Acquisition Sub in the
Supreme Court of the State of New York for the County of New York
challenging the proposed merger, captioned Zimmerman v. Allied
Healthcare International Inc., No. 652158/2011 (N.Y. Sup. Ct.
filed August 3, 2011). The complaint alleges that the Company's
directors breached their fiduciary duties in negotiating and
approving the merger agreement. The complaint further alleges that
the Company and/or Saga aided and abetted the members of the board
in their alleged breaches of fiduciary duties. The complaint seeks
various forms of relief, including injunctive relief to prevent
consummation of the merger.
The Company intends to defend this lawsuit vigorously.
AMAG PHARMACEUTICALS: Continues to Defend "Silverstrand" Suit
-------------------------------------------------------------
AMAG Pharmaceuticals, Inc., continues to defend a securities class
action lawsuit commenced by Silverstrand Investments, according to
the Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
A purported class action complaint was originally filed on
March 18, 2010, in the United States District Court for the
District of Massachusetts, entitled Silverstrand Investments v.
AMAG Pharm., Inc., et. al., Civil Action No. 1:10-CV-10470-NMG,
and was amended on September 15, 2010, and on December 17, 2010.
The second amended complaint filed on December 17, 2010, alleges
that the Company and its President and Chief Executive Officer,
former Executive Vice President and Chief Financial Officer, the
Company's Board of Directors, and certain underwriters in the
Company's January 2010 offering of common stock violated certain
federal securities laws, specifically Sections 11 and 12(a)(2) of
the Securities Act of 1933, as amended, and that the Company's
President and Chief Executive Officer and former Executive Vice
President and Chief Financial Officer violated Section 15 of such
Act, respectively, by making certain alleged false and misleading
statements and omissions in a registration statement filed in
January 2010. The plaintiff seeks unspecified damages on behalf
of a purported class of purchasers of the Company's common stock
pursuant to the Company's common stock offering on or about
January 21, 2010. The Court has not set a trial date for this
matter.
The Company believes that the allegations contained in the
complaint are without merit and intend to defend the case
vigorously. The Company has not recorded an estimated liability
associated with this legal proceeding as the Company does not
believe that such a liability is probable nor does the Company
believe that a range of loss is currently estimable. However, the
Company expects that the costs and expenses related to this
litigation could be significant. The Company's current director
and officer liability insurance policies provide that the Company
is responsible for the first $1.0 million of such costs and
expenses. Also, a judgment or settlement of these actions could
exceed the Company's insurance coverage.
AMAG PHARMACEUTICALS: Faces 7 Suits Over Proposed Allos Merger
--------------------------------------------------------------
AMAG Pharmaceuticals, Inc., is facing seven putative class action
lawsuits arising out of its proposed merger with Allos
Therapeutics, Inc., according to the Company's August 5, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
On July 19, 2011, the Company entered into an Agreement and Plan
of Merger and Reorganization with Alamo Acquisition Sub, Inc., a
Delaware corporation and wholly-owned subsidiary, or Merger Sub,
and Allos Therapeutics, Inc., pursuant to which Merger Sub will
merge with and into Allos in a strategic business combination,
with Allos continuing as the surviving corporation and as the
Company's wholly-owned subsidiary. Allos is a biopharmaceutical
company committed to the development and commercialization of
innovative anti-cancer therapeutics.
Between July 21, 2011, and July 27, 2011, seven putative class
action lawsuits were filed against the Company, Allos, Merger Sub,
and members of the board of directors of Allos arising out of the
merger. Two lawsuits were filed in the United States District
Court for the District of Colorado on July 21, 2011, and July 22,
2011, (entitled James Radmore and John Salem v. Allos
Therapeutics, Inc., et al. and A.E. Everage Jr. v. Allos
Therapeutics, Inc., et al.); two lawsuits were filed on July 26,
2011, and July 27, 2011, in the Court of Chancery of the State of
Delaware (entitled Hoyan Lam v. Allos Therapeutics, Inc., et al.
and Denis Mulligan v. Paul Berns, et al.); two lawsuits were filed
in Jefferson County District Court for the State of Colorado on
July 26, 2011, (entitled Rupert Nunn v. Paul Berns, et al. and
Lyla Stevens, et al. v. Stephen J. Hoffman, et al.) and one
lawsuit was filed on July 27, 2011, in Jefferson County District
Court for the State of Colorado (entitled John Hannon and Ed
Fisher v. Allos Therapeutics, Inc., et al.). The Delaware
plaintiffs have asked the Court of Chancery to consolidate their
two actions into one case entitled In re Allos Therapeutics, Inc
Shareholders Litigation. These lawsuits generally allege that the
members of the board of directors of Allos breached their
fiduciary duties of loyalty, care, independence, good faith and
fair dealing to Allos's stockholders by entering into the merger
agreement because they, among other things, (i) failed to maximize
stockholder value; (ii) used a process that was unfair and
inadequate and tailored to better their own interests at the
expense of Allos's public stockholders; (iii) failed to implement
a bidding mechanism to foster a fair auction or took steps to
avoid competitive bidding; and (iv) agreed to preclusive deal-
protection terms. These lawsuits also allege that the Company,
Allos and Merger Sub aided and abetted the board of directors of
Allos in breaching their fiduciary duties. Plaintiffs seek to
stop or delay the acquisition of Allos by the Company, or
rescission of the Merger in the event it is consummated, and seek
monetary damages in an unspecified amount to be determined at
trial.
The Company believes the allegations in these lawsuits are without
merit and the Company intends to defend against them vigorously.
The Company has not recorded an estimated liability associated
with this legal proceeding as the Company does not believe that
such a liability is probable nor does the Company believe that a
range of loss is currently estimable.
AMERICAN INTERNATIONAL: Continues to Defend Securities Suit in NY
-----------------------------------------------------------------
American International Group, Inc. continues to defend itself in a
consolidated class action lawsuit captioned In re American
International Group, Inc. 2008 Securities Litigation in New York,
according to the Company's August 4, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
Between May 21, 2008 and January 15, 2009, eight purported
securities class action complaints were filed against the Company
and certain directors and officers of the Company and AIG
Financial Products Corp., the Company's outside auditors, and the
underwriters of various securities offerings in the United States
District Court for the Southern District of New York (the Southern
District of New York), alleging claims under the Securities
Exchange Act of 1934 or claims under the Securities Act of 1933.
On March 20, 2009, the Court consolidated all eight of the
purported securities class actions as In re American International
Group, Inc. 2008 Securities Litigation (the Consolidated 2008
Securities Litigation).
On May 19, 2009, lead plaintiff in the Consolidated 2008
Securities Litigation filed a consolidated complaint on behalf of
purchasers of AIG stock during the alleged class period of March
16, 2006 through September 16, 2008, and on behalf of purchasers
of various AIG securities offered pursuant to the Company's shelf
registration statements. The consolidated complaint alleges that
defendants made statements during the class period in press
releases, the Company's quarterly and year-end filings, during
conference calls, and in various registration statements and
prospectuses in connection with the various offerings that were
materially false and misleading and that artificially inflated the
price of the Company's stock. The alleged false and misleading
statements relate to, among other things, the Subprime Exposure
Issues. The consolidated complaint alleges violations of Sections
10(b) and 20(a) of the Exchange Act and Sections 11, 12(a)(2), and
15 of the Securities Act. On August 5, 2009, defendants filed
motions to dismiss the consolidated complaint, and on September
27, 2010 the Court denied the motions to dismiss.
On November 24, 2010 and December 10, 2010, the Company and all
other defendants filed answers to the consolidated complaint
denying the material allegations therein and asserting their
defenses.
On April 1, 2011, the lead plaintiff in the Consolidated 2008
Securities Litigation filed a motion to certify a class of
plaintiffs.
As of August 1, 2011, plaintiffs have not specified an amount of
alleged damages, discovery has only recently commenced and the
Court has not determined if a class action is appropriate or the
size or scope of any class. As a result, the Company is unable to
reasonably estimate the possible loss or range of losses, if any,
arising from the litigation.
American International Group, Inc. operates in three segments,
namely Chartis, SunAmerica Financial Group and Financial Services.
AMERICAN INTERNATIONAL: Continues to Defend ERISA Lawsuit in NY
---------------------------------------------------------------
American International Group, Inc. continues to defend a
consolidated class action lawsuit under the Employee Retirement
Income Security Act in New York, captioned In re American
International Group, Inc. ERISA Litigation II, according to the
Company's August 4, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
Between June 25, 2008, and November 25, 2008, the Company, certain
of its directors and officers, and members of the Company's
Retirement Board and Investment Committee were named as defendants
in eight purported class action complaints asserting claims on
behalf of participants in certain pension plans sponsored by AIG
or its subsidiaries. On March 19, 2009, the Court consolidated
these eight actions as In re American International Group, Inc.
ERISA Litigation II. On June 26, 2009, lead plaintiffs' counsel
filed a consolidated amended complaint. The action purports to be
brought as a class action under the Employee Retirement Income
Security Act of 1974, as amended (ERISA), on behalf of all
participants in or beneficiaries of certain benefit plans of AIG
and its subsidiaries that offered shares of the Company's common
stock. In the consolidated amended complaint, plaintiffs allege,
among other things, that the defendants breached their fiduciary
responsibilities to plan participants and their beneficiaries
under ERISA, by continuing to offer the AIG Stock Fund as an
investment option in the plans after it allegedly became imprudent
to do so. The alleged ERISA violations relate to, among other
things, the defendants' purported failure to monitor or disclose
certain matters, including the Subprime Exposure Issues. On
September 18, 2009, defendants filed motions to dismiss the
consolidated amended complaint.
On March 31, 2011, the Court granted defendants' motions to
dismiss with respect to one plan at issue, and denied defendants'
motions to dismiss with respect to the other two plans at issue.
As of August 1, 2011, plaintiffs have not specified an amount of
alleged damages, discovery has only recently commenced, and the
Court has not determined if a class action is appropriate or the
size or scope of any class. As a result, the Company is unable to
reasonably estimate the possible loss or range of losses, if any,
arising from the litigation.
American International Group, Inc. operates in three segments,
namely Chartis, SunAmerica Financial Group and Financial Services.
AMERICAN INTERNATIONAL: Securities Suit Still Pending in Ontario
----------------------------------------------------------------
The Ontario Superior Court of Justice has not yet determined
whether it has jurisdiction over a securities class action against
American International Group, Inc., according to the Company's
August 4, 2011 Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On November 12, 2008, an application was filed in the Ontario
Superior Court of Justice for leave to bring a purported class
action against the Company, AIG Financial Products, Corp., certain
directors and officers of the Company and Joseph Cassano, the
former Chief Executive Officer of AIGFP, pursuant to the Ontario
Securities Act. If the Court grants the application, a class
plaintiff will be permitted to file a statement of claim against
defendants. The proposed statement of claim would assert a class
period of November 10, 2006 through September 16, 2008 (later
amended to March 16, 2006 through September 16, 2008) and would
allege that during this period defendants made false and
misleading statements and omissions in quarterly and annual
reports and during oral presentations in violation of the Ontario
Securities Act.
On April 17, 2009, defendants filed a motion record in support of
their motion to stay or dismiss for lack of jurisdiction and forum
non conveniens. On July 12, 2010, the Court adjourned a hearing on
the motion pending a decision by the Supreme Court of Canada in
another action with respect to similar issues raised in the action
pending against the Company.
In plaintiff's proposed statement of claim, plaintiff alleged
general and special damages of $500 million, and punitive damages
of $50 million plus prejudgment interest or such other sums as the
Court finds appropriate. As of August 1, 2011, the Court has not
determined whether it has jurisdiction or granted plaintiff's
application to file a statement of claim and no discovery has
occurred. As a result, the Company is unable to reasonably
estimate the possible loss or range of losses, if any, arising
from the litigation.
American International Group, Inc. operates in three segments,
namely Chartis, SunAmerica Financial Group and Financial Services.
AMERICAN INTERNATIONAL: Accrued for NY Suit Full Settlement Amt.
-----------------------------------------------------------------
American International Group, Inc. disclosed that as of June 30,
2011, it had accrued for the full amount of the settlement reached
in a consolidated class action lawsuit entitled In re American
International Group, Inc. Securities Litigation in New York,
according to the Company's August 4, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
Beginning in October 2004, a number of putative securities fraud
class action suits were filed in the Southern District of New York
against the Company and consolidated as In re American
International Group, Inc. Securities Litigation (the Consolidated
2004 Securities Litigation). Subsequently, a separate, though
similar, securities fraud action was also brought against AIG by
certain Florida pension funds. The lead plaintiff in the
Consolidated 2004 Securities Litigation is a group of public
retirement systems and pension funds benefiting Ohio state
employees, suing on behalf of themselves and all purchasers of the
Company's publicly traded securities between October 28, 1999 and
April 1, 2005. The named defendants are the Company and a number
of present and former officers and directors of the Company, as
well as Starr, SICO, General Reinsurance Corporation (General Re),
and PricewaterhouseCoopers LLP, among others. The lead plaintiff
alleges, among other things, that AIG: (1) concealed that it
engaged in anti-competitive conduct through alleged payment of
contingent commissions to brokers and participation in illegal
bid-rigging; (2) concealed that it used "income smoothing"
products and other techniques to inflate its earnings; (3)
concealed that it marketed and sold "income smoothing" insurance
products to other companies; and (4) misled investors about the
scope of government investigations. In addition, the lead
plaintiff alleges that Greenberg manipulated the Company's stock
price. The lead plaintiff asserts claims for violations of
Sections 11 and 15 of the Securities Act, Section 10(b) of the
Exchange Act and Rule 10b-5 promulgated thereunder, and Sections
20(a) and Section 20A of the Exchange Act.
In October 2009, the lead plaintiff advised the Court that it had
entered into a settlement agreement with Greenberg, Smith,
Christian M. Milton, Michael J. Castelli, SICO and Starr. At the
lead plaintiff's request, the Court has entered an order
dismissing all of the lead plaintiff's claims against these
defendants "without prejudice" to any party. The settlement
agreement between lead plaintiff and these defendants was filed
with the Court on January 6, 2011.
On February 22, 2010, the Court issued an opinion granting, in
part, lead plaintiffs' motion for class certification. The Court
rejected lead plaintiffs' request to include in the class
purchasers of certain AIG bonds and declined to certify a class
with respect to certain counts of the complaint and dismissed
those claims for lack of standing. With respect to the remaining
claims under the Exchange Act on behalf of putative class members
who had purchased AIG Common Stock, the Court declined to certify
a class as to certain defendants other than AIG and rejected lead
plaintiffs' claims that class members could establish injury based
on disclosures on two of the six dates lead plaintiffs had
proposed, but certified a class consisting of all shareholders who
purchased or otherwise acquired AIG Common Stock during the class
period of October 28, 1999 to April 1, 2005, and who possessed
that stock over one or more of the dates October 14, 2004, October
15, 2004, March 17, 2005 or April 1, 2005, as well as persons who
held AIG Common Stock in two companies at the time they were
acquired by AIG in exchange for AIG Common Stock, and were
allegedly damaged thereby. In light of the class certification
decision, on March 5, 2010, the Court denied as moot General Re's
and lead plaintiffs' motion to certify their proposed settlement,
and on March 18, 2010, PwC withdrew its motion to approve its
proposed settlement with lead plaintiffs. Lead plaintiffs and AIG
each filed petitions requesting permission to file an
interlocutory appeal of the class certification decision. AIG,
General Re, Richard Napier and Ronald Ferguson each filed
opposition briefs to lead plaintiffs' petition.
On May 17, 2010, PwC and lead plaintiffs jointly moved for final
approval of their settlement as proposed prior to class
certification. On November 30, 2010, the Court approved the
settlement between lead plaintiffs and PwC. On December 13, 2010,
four shareholders filed a notice of appeal of the final judgment.
The appeal is currently pending in the Second Circuit.
On June 23, 2010, General Re and lead plaintiffs jointly moved for
preliminary approval of their settlement. On September 10, 2010,
the Court issued an opinion denying the motion for preliminary
approval and, on September 23, 2010, the Court dismissed the lead
plaintiffs' causes of action with respect to General Re. On
October 21, 2010, lead plaintiffs filed a notice of appeal of the
Court's September 23, 2010 order dismissing the claims against the
Gen Re defendants, as well as the March 4, 2010 order refusing to
preliminarily approve a settlement with the Gen Re defendants, and
the February 22, 2010 class certification order to the extent it
denied class certification for the claims against the Gen Re
defendants.
On June 28, 2010, the Second Circuit granted the Company's
petition seeking permission to file an interlocutory appeal of the
class certification decision, and denied the petition by lead
plaintiffs. On September 1, 2010, the Company and lead plaintiffs
entered into a stipulation to withdraw the Company's interlocutory
appeal without prejudice to reinstate the appeal in the future,
which has been endorsed by the Second Circuit. On February 4,
2011, AIG and lead plaintiffs entered into a stipulation to extend
the time by which the appeal must be reinstated, which has been
endorsed by the Second Circuit.
On July 14, 2010, the Company approved the terms of a settlement
(the Settlement) with lead plaintiffs. The Settlement is
conditioned on, among other things, court approval and a minimum
level of shareholder participation. Under the terms of the
Settlement, if consummated, the Company will pay an aggregate of
$725 million, $175 million of which is to be paid into escrow
within ten days of preliminary court approval. The Company's
obligation to fund the remainder of the settlement amount was
conditioned on its having consummated one or more common stock
offerings raising net proceeds of at least $550 million prior to
final court approval.
On July 20, 2010, at the joint request of the Company and lead
plaintiffs, the District Court entered an order staying all
deadlines in the case. On November 30, 2010, the Company and lead
plaintiffs executed their agreement of settlement and compromise.
On November 30, 2010, lead plaintiffs filed a motion for
preliminary approval of the settlement with the Company, which is
currently pending. On May 27, 2011, the Company completed a
registered public offering of 300 million shares of AIG Common
Stock. The offering ensures that the Company's payment under the
settlement will be in cash, not AIG Common Stock. On June 10,
2011, pursuant to the Court's direction, lead plaintiff filed
amended shareholder notices reflecting the fact that the Company
payment would be in cash because of the completion of the public
offering.
As of June 30, 2011, the Company had accrued for the full amount
of the Settlement.
American International Group, Inc. operates in three segments,
namely Chartis, SunAmerica Financial Group and Financial Services.
AMERICAN INTERNATIONAL: Final Fairness Hearing Set for Sept. 14
---------------------------------------------------------------
A final fairness hearing with respect to a settlement reached in
In re Insurance Brokerage Antitrust Litigation, referred to as the
Commercial Complaint, is scheduled for September 14, 2011,
according to American International Group, Inc.'s August 4, 2011
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
Commencing in 2004, policyholders brought multiple federal
antitrust and RICO class actions in jurisdictions across the
nation against insurers and brokers, including the Company and a
number of its subsidiaries, alleging that the insurers and brokers
engaged in one or more broad conspiracies to allocate customers,
steer business, and rig bids. These actions, including 24
complaints filed in different federal courts naming the Company or
an AIG subsidiary as a defendant, were consolidated by the
judicial panel on multi-district litigation and transferred to the
United States District Court for the District of New Jersey
(District of New Jersey) for coordinated pretrial proceedings. The
consolidated actions have proceeded in that Court in two parallel
actions, In re Insurance Brokerage Antitrust Litigation -- the
Commercial Complaint -- and In re Employee Benefits Insurance
Brokerage Antitrust Litigation -- the Employee Benefits Complaint.
The plaintiffs in the Commercial Complaint are a group of
corporations, individuals and public entities that contracted with
the broker defendants for the provision of insurance brokerage
services for a variety of insurance needs. The broker defendants
are alleged to have placed insurance coverage on the plaintiffs'
behalf with a number of insurance companies named as defendants,
including AIG subsidiaries. The Commercial Complaint also named
various brokers and other insurers as defendants (three of which
have since settled). The Commercial Complaint alleges that
defendants engaged in a number of overlapping "broker-centered"
conspiracies to allocate customers through the payment of
contingent commissions to brokers and through purported "bid-
rigging" practices. It also alleges that the insurer and broker
defendants participated in a "global" conspiracy not to disclose
to policyholders the payment of contingent commissions. Plaintiffs
assert that the defendants violated the Sherman Antitrust Act, the
Racketeer Influenced and Corrupt Organizations Act (RICO), and the
antitrust laws of 48 states and the District of Columbia, and are
liable under common law breach of fiduciary duty and unjust
enrichment theories. Plaintiffs seek treble damages plus interest
and attorneys' fees as a result of the alleged RICO and Sherman
Antitrust Act violations.
The plaintiffs in the Employee Benefits Complaint are a group of
individual employees and corporate and municipal employers
alleging claims on behalf of two separate nationwide purported
classes: an employee class and an employer class that acquired
insurance products from the defendants from January 1, 1998 to
December 31, 2004. The Employee Benefits Complaint names AIG, as
well as various other brokers and insurers, as defendants. The
activities alleged in the Employee Benefits Complaint, with
certain exceptions, track the allegations of customer allocation
through steering and bid-rigging made in the Commercial Complaint.
The District Court, in connection with the Commercial and Employee
Benefits Complaints, granted (without leave to amend) defendants'
motions to dismiss the federal antitrust and RICO claims on
August 31, 2007 and September 28, 2007. The Court declined to
exercise supplemental jurisdiction over the state law claims in
the Commercial Complaint and therefore dismissed it in its
entirety. Plaintiffs appealed the dismissal of the Commercial
Complaint to the United States Court of Appeals for the Third
Circuit on October 10, 2007. On January 14, 2008, the District
Court granted summary judgment to defendants on plaintiffs' ERISA
claims in the Employee Benefits Complaint. On February 12, 2008,
plaintiffs filed a notice of appeal to the Third Circuit with
respect to the dismissal of the antitrust and RICO claims in the
Employee Benefits Complaint.
On August 16, 2010, the Third Circuit affirmed the dismissal of
the Employee Benefits Complaint in its entirety, affirmed in part
and vacated in part the District Court's dismissal of the
Commercial Complaint, and remanded the case for further
proceedings consistent with the opinion. Specifically, the Third
Circuit affirmed the dismissal of plaintiffs' broader antitrust
and RICO claims, but the Court reversed the District Court's
dismissal of alleged "Marsh-centered" antitrust and RICO claims
based on allegations of bid-rigging involving excess casualty
insurance. The Court remanded these Marsh-centered claims to the
District Court for consideration as to whether plaintiffs had
adequately pleaded them. Because the Third Circuit vacated in part
the judgment dismissing the federal claims in the Commercial
Complaint, the Third Circuit also vacated the District Court's
dismissal of the state-law claims in the Commercial Complaint.
On October 1, 2010, defendants named in the Commercial Complaint
filed motions to dismiss the remaining remanded claims in the
District of New Jersey. On March 18, 2011, the Company and certain
other defendants announced that they had entered into a memorandum
of understanding (MOU) with class plaintiffs to settle the claims
asserted against them in the Commercial Complaint. Under the terms
of the MOU, it is anticipated that AIG will pay approximately $7
million of a total aggregate settlement amount of approximately
$37 million. The settlement is conditioned on, among other things,
the execution of a formal settlement agreement, court approval,
and a minimum level of participation in the settlement fund by
eligible purchasers of excess casualty insurance policies.
Plaintiffs' attorneys' fees and litigation expenses, and the
aggregate costs of notice and claims administration in connection
with the settlement, would be paid from the settlement fund.
On June 20, 2011, the Court "administratively terminated" without
prejudice the various Defendants' pending motions to dismiss the
proposed class plaintiffs' operative pleading indicating that
those motions may be re-filed after adjudication of all issues
related to the proposed class settlement and subject to the
approval of the Magistrate Judge. On June 27, 2011, the Court
preliminarily approved the class settlement. On June 30, 2011, AIG
placed its portion of the total settlement payment into escrow. If
the settlement does not receive final court approval, those funds
will revert to AIG. A final fairness hearing is scheduled for
September 14, 2011.
Tag-along Class Actions
A number of complaints making allegations similar to those in the
Multi-District Litigation have been filed against AIG and other
defendants in state and federal courts around the country. The
defendants have thus far been successful in having the federal
actions transferred to the District of New Jersey and consolidated
into the Multi-District Litigation. These additional consolidated
actions are still pending in the District of New Jersey, but are
currently stayed. In one of those consolidated actions, Palm Tree
Computer Systems, Inc. v. Ace USA (Palm Tree), which is brought by
two named plaintiffs on behalf of a proposed class of insurance
purchasers, the plaintiffs allege specifically with respect to
their claim for breach of fiduciary duty against the insurer
defendants that neither named plaintiff nor any member of the
proposed class suffered damages "exceeding $74,999 each."
Plaintiffs do not specify damages as to other claims against the
insurer defendants in the complaint. The plaintiffs in Palm Tree
have not yet sought certification of the class, as that case has
been stayed by the District Court in New Jersey. Because discovery
has not been completed and the District Court has not determined
if a class action is appropriate or the size or scope of any
class, the Company is unable to reasonably estimate the possible
loss or range of losses, if any, arising from the Palm Tree
litigation. In another consolidated action, The Heritage Corp. of
South Florida v. National Union Fire Ins. Co. (Heritage), an
individual plaintiff alleges damages "in excess of $75,000."
Because discovery has not been completed, AIG is unable to
reasonably estimate the possible loss or range of losses, if any,
arising from the Heritage Corp. litigation. For the remaining
consolidated actions, as of August 1, 2011, plaintiffs have not
specified an amount of alleged damages arising from these actions.
AIG is therefore unable to reasonably estimate the possible loss
or range of losses, if any, arising from these matters.
In June 2011, the Court ordered that counsel for each of the tag-
along actions in the Multi-District Litigation (including these
cases where AIG is a defendant: Avery Dennison Corp. v. Marsh &
McLennan Companies, Inc.; Henley Management Co. v. Marsh Inc.;
Heritage; and Palm Tree) shall submit a letter to the Court within
30 days of the date of that order that outlines the effect the
current proposed class settlement will have on their respective
cases if finalized in due course.
The AIG defendants have also sought to have state court actions
making similar allegations stayed pending resolution of the Multi-
District Litigation proceeding. These efforts have generally been
successful, although four cases have proceeded; one each in
Florida and New Jersey state courts that have settled, and one
each in Texas and Kansas state courts have proceeded (although
discovery is stayed in both actions). In the Texas action,
plaintiff filed its Fourth Amended Petition on July 13, 2009 and
on August 14, 2009, defendants filed renewed special exceptions.
Plaintiff in the Texas action alleges a "maximum" of $125 million
in total damages (after trebling). Because the Court has not
rendered a decision on defendants' renewed special exceptions and
discovery has not been completed, the Company is unable to
reasonably estimate the possible loss or range of losses, if any,
arising from the Texas action. In the Kansas action, defendants
are appealing to the Kansas Supreme Court the trial court's denial
of defendants' motion to dismiss on statute of limitations
grounds. In the Kansas action, the plaintiff alleges damages in an
amount "greater than $75,000" for each of the three claims
directed against AIG in the complaint. Because the Kansas Supreme
Court has not decided the appeal of the trial court's denial of
defendants' motion to dismiss, and discovery has not been
completed, the Company is unable to reasonably estimate the
possible loss or range of losses, if any, from the Kansas action.
American International Group, Inc. operates in three segments,
namely Chartis, SunAmerica Financial Group and Financial Services.
AMERICAN INTERNATIONAL: Continues to Face "Caremark" Suit in Ala.
-----------------------------------------------------------------
American International Group, Inc. continues to face Caremark-
related class action lawsuits in Alabama, according to the
Company's August 4, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
The Company and certain of its subsidiaries have been named
defendants in two putative class actions in state court in Alabama
that arise out of the 1999 settlement of class and derivative
litigation involving Caremark Rx, Inc. (Caremark). The plaintiffs
in the second-filed action intervened in the first-filed action,
and the second-filed action was dismissed. An excess policy issued
by a subsidiary of the Company with respect to the 1999 litigation
was expressly stated to be without limit of liability. In the
current actions, plaintiffs allege that the judge approving the
1999 settlement was misled as to the extent of available insurance
coverage and would not have approved the settlement had he known
of the existence or unlimited nature of the excess policy. They
further allege that the Company, its subsidiaries, and Caremark
are liable for fraud and suppression for misrepresenting and/or
concealing the nature and extent of coverage. In addition, the
intervenors originally alleged that various lawyers and law firms
who represented parties in the underlying class and derivative
litigation (the Lawyer Defendants) were also liable for fraud and
suppression, misrepresentation, and breach of fiduciary duty.
The complaints filed by the plaintiffs and the intervenors request
compensatory damages for the 1999 class in the amount of $3.2
billion, plus punitive damages. The Company and its subsidiaries
deny the allegations of fraud and suppression, assert that
information concerning the excess policy was publicly disclosed
months prior to the approval of the settlement, that the claims
are barred by the statute of limitations, and that the statute
cannot be tolled in light of the public disclosure of the excess
coverage. The plaintiffs and intervenors, in turn, have asserted
that the disclosure was insufficient to inform them of the nature
of the coverage and did not start the running of the statute of
limitations.
In November 2007, the trial court dismissed the intervenors'
complaint against the Lawyer Defendants, and the Alabama Supreme
Court affirmed that dismissal in September 2008. After the case
was sent back down to the trial court, the intervenors retained
additional counsel and filed an Amended Complaint in Intervention
that named only Caremark and the Company and various subsidiaries
as defendants, purported to bring claims against all defendants
for deceit and conspiracy to deceive, and purported to bring a
claim against the Company and its subsidiaries for aiding and
abetting Caremark's alleged deception. The defendants moved to
dismiss the Amended Complaint in Intervention, and the plaintiffs
moved to disqualify all of the lawyers for the intervenors
because, among other things, the newly retained firm had
previously represented Caremark. The intervenors, in turn, moved
to disqualify the lawyers for the plaintiffs in the first-filed
action. The cross-motions to disqualify were withdrawn after the
two sets of plaintiffs agreed that counsel for the original
plaintiffs would act as lead counsel, and intervenors also
withdrew their Amended Complaint in Intervention. The trial Court
approved all of the steps and, in April 2009, established a
schedule for class action discovery that was to lead to a hearing
on class certification in March 2010. The Court has since
appointed a special master to oversee class action discovery and
has directed the parties to submit a new discovery schedule after
certain discovery disputes are resolved. Class discovery is
ongoing, and no schedule for the class certification hearing has
been set.
As of August 1, 2011, the parties have not completed class action
discovery, general discovery has not commenced, and the court has
not determined if a class action is appropriate or the size or
scope of any class. As a result, the Company is unable to
reasonably estimate the possible loss or range of losses, if any,
arising from the litigation.
American International Group, Inc. operates in three segments,
namely Chartis, SunAmerica Financial Group and Financial Services.
AT&T INC: Class Action Over Defective U-Verse Phone Dismissed
-------------------------------------------------------------
Richard Vanderford, writing for Law360, reports that an Oklahoma
federal judge on Aug. 11 dismissed a putative class action
accusing AT&T Inc. of fraud over its allegedly defective U-Verse
phone, Internet and television service.
U.S. District Judge Lee R. West said that forum selection and
arbitration clauses AT&T inserted into its terms of service
agreements bar the plaintiffs from bringing their nationwide class
action in his court.
ATRICURE INC: Insurance Carrier Pays Class Claim in "Levine" Suit
-----------------------------------------------------------------
AtriCure, Inc. and certain of its current and former officers were
named as defendants in a purported securities class action lawsuit
filed in the United States District Court for the Southern
District of New York (Levine v. AtriCure, Inc., Case No. 06 CV
14324 (United States District Court for the Southern District of
New York)). The suit alleges violations of the federal securities
laws and seeks damages on behalf of purchasers of the Company's
common stock during the period from its initial public offering in
August 2005 through February 16, 2006. The Company filed a motion
to dismiss the lawsuit for lack of subject matter jurisdiction.
This motion was denied in September 2007, and a motion for
reconsideration of that denial was denied in January 2009.
Although the Company admitted no wrongdoing, as of December 31,
2009, the Company recorded a liability of $2,000,000 which
represented an estimate of the potential defense and/or settlement
costs. In addition, the Company recorded a related receivable of
$2,000,000 from its insurance carrier for the potential defense
and/or settlement costs, as recovery was expected beyond a
reasonable doubt. On October 22, 2010, the parties signed a
Definitive Stipulation of Settlement for $2,000,000, which was
subject to notice to the class as well as approval by the court,
which occurred on May 27, 2011. The Company's insurance carrier
paid the claim in full in June 2011, and, as of June 30, 2011, no
receivables or liabilities existed in relation to this matter,
according to the Company's August 5, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
CAMBREX CORP: Continues to Defend Lorazepam and Clorazepate Suit
----------------------------------------------------------------
Cambrex Corporation continues to defend itself against one
remaining lawsuit over its use of Lorazepam and Clorazepate
ingredients, according to the Company's August 4, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
In 1998, the Company and a subsidiary were named as defendants
along with Mylan Laboratories, Inc. ("Mylan") and Gyma
Laboratories, Inc. ("Gyma") in a proceeding instituted by the
Federal Trade Commission in the United States District Court for
the District of Columbia (the "District Court"). Suits were also
commenced by several State Attorneys' General and class action
complaints by private plaintiffs in various state courts. The
suits alleged violations of the Federal Trade Commission Act
arising from exclusive license agreements between the Company and
Mylan covering two active pharmaceutical ingredients (Lorazepam
and Clorazepate).
All cases have been resolved except for one brought by four health
care insurers. In the remaining case the District Court entered
judgment after trial in 2008 against Mylan, Gyma and Cambrex in
the amount of $8,355,000 payable jointly and severally, and also a
punitive damage award against each defendant in the amount of
$16,709,000. In addition, the District Court ruled that the
defendants were subject to a total of approximately $7,000,000 in
prejudgment interest. In January 2011, the Court of Appeals
remanded the case to the district court to determine which parties
were properly before the court and to what extent the removal of
certain parties from the case that do not meet jurisdictional
requirements may affect damages. The Court of Appeals further
declined to issue an opinion with respect to the merits of Mylan,
Gyma and Cambrex's objections to the jury's damage award until
such time as the jurisdiction issue is resolved by the district
court.
CITIGROUP INC: Appeal From Dismissal of ARS-Related Suit Pending
----------------------------------------------------------------
An appeal from the dismissal of the consolidated lawsuit asserting
claims related to auction rate securities remains pending,
according to Citigroup Inc.'s August 5, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2011.
Beginning in March 2008, Citigroup and its affiliates and
subsidiaries and current and former officers, directors and
employees (collectively referred to as Citigroup and Related
Parties) have been named as defendants in numerous actions and
proceedings brought by Citigroup shareholders and customers
concerning auction rate securities. These have included, among
others: (i) numerous arbitrations filed by customers of Citigroup
and its subsidiaries seeking damages in connection with
investments in ARS, which are in various procedural stages; (ii) a
consolidated putative class action asserting claims for federal
securities and other statutory and common law violations, in which
a motion to dismiss is pending; (iii) two putative class actions
asserting violations of Section 1 of the Sherman Act, which have
been dismissed and are now pending on appeal; and (iv) a
derivative action filed against certain Citigroup officers and
directors, which has been dismissed.
On March 1, 2011, the United States District Court for the
Southern District of New York dismissed plaintiffs' fourth
consolidated amended complaint in IN RE CITIGROUP AUCTION RATE
SECURITIES LITIGATION.
Plaintiffs-appellants have appealed to the United States Court of
Appeals for the Second Circuit from the order entered on March 1,
2011. Additional information relating to this action is publicly
available in court filings under district court docket number 11
Civ. 3095 (S.D.N.Y.) (Swain, J.), and circuit court docket number
11 Civ. 1270 (2d Cir.).
CITIGROUP INC: Appeal in ERISA-Violations Suit Remains Pending
--------------------------------------------------------------
An appeal from the dismissal of the consolidated class action
lawsuit alleging violations of the Employee Retirement Income
Security Act of 1974 remains pending, according to Citigroup
Inc.'s August 5, 2011, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
Numerous class actions were filed in the Southern District of New
York asserting claims under the Employee Retirement Income
Security Act of 1974 against Citigroup and certain Citigroup
employees alleged to have served as ERISA plan fiduciaries. On
August 31, 2009, the court granted defendants' motion to dismiss
the consolidated class action complaint, captioned IN RE CITIGROUP
ERISA LITIGATION. Plaintiffs have appealed the dismissal, and the
appeal is fully briefed and argued. Additional information
relating to this action is publicly available in court filings
under the consolidated lead docket number 07 Civ. 9790 (S.D.N.Y.)
(Stein, J.) and under GRAY v. CITIGROUP INC., 09-3804 (2d Cir.).
CITIGROUP INC: Awaits Ruling in Interchange Fees-Related Suit
-------------------------------------------------------------
Citigroup Inc. is awaiting a court decision on parties' motions
for summary judgment in the consolidated lawsuit regarding
interchange fees, according to the Company's August 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Beginning in 2005, several putative class actions were filed
against Citigroup and its affiliates and subsidiaries and current
and former officers, directors and employees (collectively
referred to as Citigroup and Related Parties), together with Visa,
MasterCard and other banks and their affiliates, in various
federal district courts. These actions were consolidated with
other related cases in the Eastern District of New York and
captioned IN RE PAYMENT CARD INTERCHANGE FEE AND MERCHANT DISCOUNT
ANTITRUST LITIGATION. The plaintiffs in the consolidated class
action are merchants that accept Visa- and MasterCard-branded
payment cards, as well as membership associations that claim to
represent certain groups of merchants. The pending complaint
alleges, among other things, that defendants have engaged in
conspiracies to set the price of interchange and merchant discount
fees on credit and debit card transactions in violation of
Section 1 of the Sherman Act. The complaint also alleges
additional Sherman Act and California law violations, including
alleged unlawful maintenance of monopoly power and alleged
unlawful contracts in restraint of trade pertaining to various
Visa and MasterCard rules governing merchant conduct (including
rules allegedly affecting merchants' ability, at the point of
sale, to surcharge payment card transactions or steer customers to
particular payment cards). In addition, supplemental complaints
filed against defendants in the class action allege that Visa's
and MasterCard's respective initial public offerings were
anticompetitive and violated Section 7 of the Clayton Act, and
that MasterCard's initial public offering constituted a fraudulent
conveyance.
Plaintiffs seek injunctive relief as well as joint and several
liability for treble their damages, including all interchange fees
paid to all Visa and MasterCard members with respect to Visa and
MasterCard transactions in the U.S. since at least January 1,
2004. Certain publicly available documents estimate that Visa-
and MasterCard-branded cards generated approximately $40 billion
in interchange fees industry-wide in 2009. Defendants dispute
that the manner in which interchange and merchant discount fees
are set, or the rules governing merchant conduct, are
anticompetitive. Fact and expert discovery has closed.
Defendants' motions to dismiss the pending class action complaint
and the supplemental complaints are pending. Also pending are
plaintiffs' motion to certify nationwide classes consisting of all
U.S. merchants that accept Visa- and MasterCard-branded payment
cards and motions by both plaintiffs and defendants for summary
judgment. Additional information relating to these consolidated
actions is publicly available in court filings under the docket
number MDL 05-1720 (E.D.N.Y.) (Gleeson, J.).
CITIGROUP INC: Motion to Consolidate LIBOR-Related Suits Pending
----------------------------------------------------------------
A motion seeking consolidation and transfer of all actions related
to interbank offered rates to a single district is currently
pending, according to Citigroup Inc.'s August 5, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Government agencies in the U.S., including the Department of
Justice, the Commodity Futures Trading Commission, and the
Securities and Exchange Commission, as well as agencies in other
countries, are conducting investigations or making inquiries
regarding submissions made by panel banks to bodies that publish
various interbank offered rates. As members of a number of such
panels, Citigroup subsidiaries have received requests for
information and documents. Citigroup is cooperating with the
investigations and inquiries and is responding to the requests.
In addition, several banks that served on the London interbank
offered rate (LIBOR) panel and their affiliates, including certain
Citigroup subsidiaries, have been named as defendants in a number
of purported class action lawsuits filed in the Southern District
of New York, the Northern District of Illinois, the District of
New Jersey and the District of Minnesota. These actions allege
various federal and state law claims relating to LIBOR. A motion
seeking consolidation and transfer of all such related actions to
a single district is currently pending before the Judicial Panel
on Multidistrict Litigation. Additional information relating to
these actions is publicly available in court filings under docket
number MDL 2262 (J.P.M.L.).
CITIGROUP INC: Motion to Dismiss Research-Related Suit Pending
--------------------------------------------------------------
Citigroup Inc. is awaiting a court decision on its motion to
dismiss a putative class action lawsuit that accuses the Company
of providing misleading research analyst reports, according to the
Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In March 2004, a putative research-related customer class action
alleging various state law claims arising out of the issuance of
allegedly misleading research analyst reports concerning numerous
issuers was filed against certain Citigroup entities in Illinois
state court. Citigroup's motion to dismiss the complaint is
pending.
CITIGROUP INC: Plaintiffs Seek Class Standing in CDO-Related Suit
-----------------------------------------------------------------
Lead plaintiffs filed a motion seeking class certification in the
securities litigation over Citigroup Inc.'s exposure to
collateralized debt obligations, according to the Company's
August 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
Citigroup and its affiliates and subsidiaries and current and
former officers, directors and employees (collectively referred to
as Citigroup and Related Parties) have been named as defendants in
four putative class actions filed in the Southern District of New
York. These actions allege violations of Sections 10(b) and 20(a)
of the Securities Exchange Act of 1934. On August 19, 2008, these
actions were consolidated under the caption IN RE CITIGROUP INC.
SECURITIES LITIGATION. In this action, lead plaintiffs assert
claims on behalf of a putative class of purchasers of Citigroup
stock from January 1, 2004, through January 15, 2009. On
November 9, 2010, the district court issued an order and opinion
granting in part and denying in part defendants' motion to dismiss
the amended consolidated class action complaint. The court
dismissed all claims except those arising out of Citigroup's
exposure to collateralized debt obligations (CDOs) for the time
period February 1, 2007, through April 18, 2008. Fact discovery
has begun. A class certification motion has not yet been filed,
and plaintiffs have not yet quantified the putative class's
alleged damages. During the putative class period, as narrowed by
the court, the price of Citigroup's common stock declined from
$54.73 at the beginning of the period to $25.11 at the end of the
period.
On July 15, 2011, lead plaintiffs in the Securities Litigation
filed a motion seeking class certification. Additional
information relating to this action is publicly available in court
filings under consolidated lead docket number 07 Civ. 9901
(S.D.N.Y.) (Stein, J).
CITIGROUP INC: Plea for Class Standing in Bond Suit Still Pending
-----------------------------------------------------------------
Lead plaintiffs' motion seeking class certification in the
consolidated bond litigation against Citigroup Inc. remains
pending, according to the Company's August 5, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Citigroup and its affiliates and subsidiaries and current and
former officers, directors and employees (collectively referred to
as Citigroup and Related Parties) also have been named as
defendants in two putative class actions filed in New York state
court, but since removed to the Southern District of New York.
These actions allege violations of Sections 11, 12, and 15 of the
Securities Act of 1933, arising out of various offerings of
Citigroup notes during 2006, 2007 and 2008. On December 10, 2008,
these actions were consolidated under the caption IN RE CITIGROUP
INC. BOND LITIGATION. In the consolidated action, lead plaintiffs
assert claims on behalf of a putative class of purchasers of 48
corporate debt securities, preferred stock, and interests in
preferred stock issued by Citigroup and related issuers over a
two-year period from 2006 to 2008. On July 12, 2010, the district
court issued an order and opinion granting in part and denying in
part defendants' motion to dismiss the consolidated class action
complaint. The court, among other things, dismissed plaintiffs'
claims under Section 12 of the Securities Act of 1933, but denied
defendants' motion to dismiss certain claims under Section 11 of
that Act. A motion for partial reconsideration of the latter
ruling is pending. Fact discovery has begun.
On March 11, 2011, lead plaintiffs in Bond Litigation filed a
motion seeking class certification.
Additional information relating to this action is publicly
available in court filings under the consolidated lead docket
number 08 Civ. 9522 (S.D.N.Y.) (Stein, J.).
CONSTELLATION ENERGY: Continues to Defend Suit Over Exelon Merger
-----------------------------------------------------------------
Constellation Energy Group, Inc., continues to defend itself
against a consolidated shareholder class action complaint over its
proposed merger with Exelon Corporation, according to the
Company's August 8, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In late April and early May 2011, shortly after Constellation
Energy and Exelon announced their agreement to merge the two
companies, 12 shareholder class action lawsuits were filed in the
Circuit Court for Baltimore City in Maryland. Each class action
suit was filed on behalf of a proposed class of the shareholders
of Constellation Energy against Constellation Energy, members of
Constellation Energy's board of directors, and Exelon. The
shareholder class actions generally allege that the individual
directors breached their fiduciary duties by entering into the
proposed merger because they failed to maximize the value that the
shareholders would receive from the merger, and failed to disclose
adequately all material information relating to the proposed
merger. The class actions also allege that Constellation Energy
and Exelon aided and abetted the individual directors' breaches of
their fiduciary duties. The lawsuits challenge the proposed
merger, seek to enjoin a shareholder vote on the proposed merger
until all material information is provided relating to the
proposed merger, and ask for rescission of the proposed merger and
andany related transactions that have been completed as of the
date that the court grants any relief. The class action lawsuits
also seek certification as class actions, compensatory damages,
costs and disbursements related to the action, including
attorneys' and experts' fees, and rescission damages. Plaintiffs
in three of the 12 lawsuits subsequently filed motions to
consolidate all the lawsuits. The court has granted the motion to
consolidate and all actions are now proceeding as a single
lawsuit. Given that these lawsuits were recently filed, that the
court has not certified any class and the plaintiffs have not
quantified their potential damage claims, the Company is unable at
this time to provide an estimate of the range of possible loss
relating to these proceedings or to determine the ultimate outcome
of these lawsuits or their possible effect on its, or Baltimore
Gas and Electric Company's, financial results or their possible
effect on the pending merger with Exelon.
Constellation Energy Group, Inc. -- http://www.constellation.com/
-- is an energy company that conducts its business through various
subsidiaries and joint ventures organized around three business
segments: a generation business, a customer supply business, and
Baltimore Gas and Electric Company.
CONSTELLATION ENERGY: Continues to Defend Securities Suit in Md.
----------------------------------------------------------------
Constellation Energy Group, Inc., continues to defend a
consolidated class action lawsuit alleging securities laws
violations, according to the Company's August 8, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Three federal securities class action lawsuits were filed in the
United States District Courts for the Southern District of New
York and the District of Maryland between September 2008 and
November 2008. The cases were filed on behalf of a proposed class
of persons who acquired publicly traded securities, including the
Series A Junior Subordinated Debentures, of Constellation Energy
between January 30, 2008 and September 16, 2008, and who acquired
Debentures in an offering completed in June 2008. The securities
class actions generally allege that Constellation Energy, a number
of its present or former officers or directors, and the
underwriters violated the securities laws by issuing a false and
misleading registration statement and prospectus in connection
with Constellation Energy's June 27, 2008 offering of Debentures.
The securities class actions also allege that Constellation Energy
issued false or misleading statements or was aware of material
undisclosed information which contradicted public statements
including in connection with its announcements of financial
results for 2007, the fourth quarter of 2007, the first quarter of
2008 and the second quarter of 2008 and the filing of its first
quarter 2008 Form 10-Q. The securities class actions seek, among
other things, certification of the cases as class actions,
compensatory damages, reasonable costs and expenses, including
counsel fees, and rescission damages.
The Southern District of New York granted the defendants' motion
to transfer the two securities class actions filed in Maryland to
the District of Maryland, and the actions have since been
transferred for coordination with the securities class action
filed there. On June 18, 2009, the court appointed a lead
plaintiff, who filed a consolidated amended complaint on Sept. 17,
2009. On November 17, 2009, the defendants moved to dismiss the
consolidated amended complaint in its entirety. On August 13,
2010, the District Court of Maryland issued a ruling on the motion
to dismiss, holding that the plaintiffs failed to state a claim
with respect to the claims of the common shareholders under the
Securities Act of 1934 and restricting the suit to those persons
who purchased Debentures in the June 2008 offering.
Given that the discovery phase has just begun, that the court has
not certified any class and the plaintiffs have not quantified
their potential damage claims relating to the June 2008 offering,
the Company is unable at this time to provide an estimate of the
range of possible loss relating to these proceedings or to
determine the ultimate outcome of the securities class actions or
their possible effect on the Company's, or Baltimore Gas and
Electric Company's financial results.
Constellation Energy Group, Inc. -- http://www.constellation.com/
-- is an energy company that conducts its business through various
subsidiaries and joint ventures organized around three business
segments: a generation business, a customer supply business, and
Baltimore Gas and Electric Company.
CONTINENTAL RESOURCES: Discovery in Royalty Fee Suit Ongoing
------------------------------------------------------------
Discovery is ongoing in connection with the lawsuit brought
against Continental Resources, Inc., by royalty interest owners of
crude oil and natural gas wells located in Oklahoma, according to
the Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In November 2010, an alleged class action was filed against the
Company alleging the Company improperly deducted post-production
costs from royalties paid to plaintiffs and other royalty interest
owners from crude oil and natural gas wells located in Oklahoma.
The plaintiffs seek recovery of compensatory damages, interest,
punitive damages and attorney fees on behalf of the alleged class.
The Company has responded to the petition, denied the allegations
and raised a number of affirmative defenses. The action is in
preliminary stages and discovery has recently commenced.
The Company says it is not currently able to estimate what impact,
if any, the action will have on its financial condition, results
of operations or cash flows given the preliminary status of the
matter and uncertainties with respect to, among other things, the
nature of the claims and defenses, the potential size of the
class, the scope and types of the properties and agreements
involved, the production years involved, and the ultimate
potential outcome of the matter.
DEPUY ORTHOPAEDICS: Locals Can Join Class Action at No Cost
-----------------------------------------------------------
Natasha Ewendt, writing for Port Lincoln Times, reports that
locals can participate in a Federal Court action over faulty hip
replacements at no cost.
Maurice Blackburn lawyers Ben Slade and Julian Schimmel met with
the Port Lincoln Hip Group to outline the firm's Federal Court
class action on behalf of Australian DePuy ASR hip joint recall
patients.
Group chair Liz Penfold said the first step in the class action is
for the court to decide whether DePuy should compensate the lead
claimant, a Tasmanian school teacher, and if so how much.
The benefit of this Federal Court decision will then flow on to
all other eligible claimants at no cost to them.
Maurice Blackburn will be paid if there is a successful judgment,
which the company is confident it will obtain.
After the court has made its decision each eligible claimant can
go to their lawyers of choice who will negotiate on their behalf
for a compensation payment that reflects their particular
circumstances, both present and future.
Many older recipients of the faulty hips, which have caused pain
requiring another hip replacement and caused metal poisoning, will
require home help and some of the younger patients may have to be
compensated for loss of present and future capacity to earn a
living for themselves and their families.
"Very little is currently known about the symptoms of cobalt and
chromium poisoning, however from listening to the stories of the
people who have spoken to me I know that headaches, thyroid
problems, heart issues and even cancer are suspected to have
resulted from high levels of these heavy metals being in the
blood," Mrs. Penfold said.
"Anyone with a metal on metal hip or knee should in my view have
their cobalt and chromium levels tested, particularly if they do
not feel well or have unexplained symptoms which are often being
attributed to other things such as in one case post polio
syndrome.
"There are about 5500 faulty hip implants in Australia with about
1500 in South Australia, of which 37 from Eyre Peninsula have
contacted our group and attended one or more of the meetings held
or been sent the notes from the meetings to inform them of the
surprising things we have discovered about these implants" Mrs.
Penfold said.
DYNEX CAPITAL: Trial in "Teamsters" Class Suit Set for November
---------------------------------------------------------------
The putative class action lawsuit filed by the Teamsters Local 445
Freight Division Pension Fund against Dynex Capital, Inc. and
others is scheduled for trial in November 2011, according to the
Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
Dynex Capital, Inc., MERIT Securities Corporation, a subsidiary
("MERIT"), and the former President/Chief Executive Officer and
current Chief Operating Officer/Chief Financial Officer of Dynex
Capital, Inc., are defendants in a putative class action brought
by the Teamsters Local 445 Freight Division Pension Fund in the
United States District Court for the Southern District of New
York. The original complaint, which was filed on February 7,
2005, alleged violations of the federal securities laws and was
purportedly filed on behalf of purchasers between February 2000
and May 2004 of MERIT Series 12-1 and MERIT Series 13
securitization financing bonds (the "Bonds"), which are
collateralized by manufactured housing loans. After a series of
rulings by the District Court and an appeal by the Company and
MERIT, on February 22, 2008, the United States Court of Appeals
for the Second Circuit dismissed the litigation against the
Company and MERIT. The Teamsters filed an amended complaint on
August 6, 2008, which essentially restated the same allegations as
the original complaint and added the Company's former
President/Chief Executive Officer and current Chief Operating
Officer/Chief Financial Officer as defendants. The District Court
denied Defendants' motion to dismiss the amended complaint. The
Teamsters seek unspecified damages and allege, among other things,
fraud and misrepresentation in connection with the issuance of and
subsequent reporting related to the Bonds.
On March 7, 2011, the District Court granted the Teamsters' motion
to certify the class for this action. Defendants sought immediate
appeal of the certification order but the United States Court of
Appeals for the Second Circuit denied the petition for immediate
appeal. Defendants also had filed a motion to dismiss for fraud
on the court based on statements attributed to alleged
confidential witnesses in the amended complaint. The District
Court denied the motion on June 21, 2011. Defendants filed a
motion for summary judgment on July 15, 2011; that motion will be
fully briefed on September 6, 2011. The case is currently
scheduled for trial in November 2011. The Company has evaluated
the allegations made in the amended complaint and continues to
believe them to be without merit and is vigorously defending
itself in this matter.
DYNEX CAPITAL: Unit Continues to Defend Suit in Pennsylvania
------------------------------------------------------------
Dynex Capital, Inc.'s subsidiary continues to defend a class
action lawsuit commenced in Pennsylvania, according to the
Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
One of the Company's subsidiaries, GLS Capital, Inc. ("GLS"), and
the County of Allegheny, Pennsylvania, are defendants in a class
action lawsuit filed in 1997 in the Court of Common Pleas of
Allegheny County, Pennsylvania (the "Court"). Between 1995 and
1997, GLS purchased from Allegheny County delinquent property tax
receivables for properties located in the County. The plaintiffs
in this matter have alleged that GLS improperly recovered or
sought recovery for certain fees, costs, interest, and attorneys'
fees and expenses in connection with GLS' collection of the
property tax receivables. The Court granted class action status
in this matter in August 2007. In February 2011, as a result of
motions filed by GLS, the Court refined the class to include only
owners of real estate in the County of Allegheny who paid an
attorneys' fee between 1996 and 2003 in connection with the forced
collection of delinquent Allegheny County property taxes. As a
result, the Court has dismissed all claims against GLS with the
exception of whether attorneys' fees and related expenses charged
by GLS in connection with the collection of the receivables were
reasonable. Such attorneys' fees and related expenses were
assessed pursuant to prevailing County ordinance. Plaintiffs have
not enumerated their damages in this matter. No trial date has
been set.
No further updates were reported in the Company's latest SEC
filing.
EBIX INC: Holzer Holzer & Fistel Files Class Action in Georgia
--------------------------------------------------------------
Holzer Holzer & Fistel, LLC has filed a class action lawsuit in
the United States District Court for the Northern District of
Georgia on behalf of purchasers of Ebix, Inc. common stock who
purchased shares between May 6, 2009 and June 30, 2011, inclusive.
The lawsuit alleges that, among other things: (a) the Company's
internal controls were wholly inadequate in the face of its torrid
acquisition pace and the Company was unable to prepare materially
accurate financial statements for its acquisitions or on a
consolidated basis; (b) the Company's statements about Organic
growth were misleading in that they mischaracterized purchased
contracts as "organic"; (c) the Company's tax provisions violated
generally accepted accounting principles; and (d) the Company
materially and improperly inflated the Company's cash flows and
gross margins. As a result of defendants' false statements, Ebix
stock traded at artificially inflated prices during the Class
Period, reaching its Class Period high of $30.35 per share on
March 24, 2011.
If you purchased Ebix common stock during the Class Period, you
have the legal right to petition the Court to be appointed a "lead
plaintiff." A lead plaintiff is a representative party that acts
on behalf of other class members in directing the litigation. Any
such request must satisfy certain criteria and be made no later
than September 12, 2011. Any member of the purported class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member. If you are an Ebix investor and would like to discuss a
potential lead plaintiff appointment, or your rights and interests
with respect to the lawsuit, you may contact Michael I. Fistel,
Jr., Esq., or Marshall P. Dees, Esq. via e-mail at
mfistel@holzerlaw.com or mdees@holzerlaw.com or via toll-free
telephone at (888) 508-6832.
Holzer Holzer & Fistel, LLC -- http://www.holzerlaw.com-- is an
Atlanta, Georgia law firm that dedicates its practice to vigorous
representation of shareholders and investors in litigation
nationwide, including shareholder class action and derivative
litigation.
EMERGENT BIOSOLUTIONS: Court Dismisses Trubion-Related Class Suit
-----------------------------------------------------------------
Emergent Biosolutions Inc. obtained final approval of a settlement
and an order of dismissal of a consolidated class action lawsuit
pending in a Washington state court related to its acquisition of
Trubion Pharmaceuticals, according to the Company's August 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
On August 17, 2010, two class action lawsuits were filed in the
Superior Court of Washington, King County, or State Court, against
Trubion Pharmaceuticals, Inc., or Trubion, its board of directors,
and the Company, or collectively, the Defendants, alleging in
summary that, in connection with the proposed merger of Trubion
with a subsidiary of the Company, or the Acquisition, the members
of the Trubion board of directors breached their fiduciary duties
by conducting an unfair sale process and agreeing to an unfair
price. Both complaints also claim that Trubion and the Company
aided and abetted the Trubion board of directors in its breach of
fiduciary duties. On September 9, 2010, the actions were
consolidated into a single action, or State Action. On October 1,
2010, the plaintiffs in the State Action served on the Defendants
a consolidated amended class action complaint, or Amended
Complaint. The Amended Complaint alleges, among other things and
in addition to the matters alleged in the initial complaints, that
the Defendants omitted material information from the Proxy
Statement/Prospectus. On October 4, 2010, a class action lawsuit
was filed in the U.S. District Court for the Western District of
Washington against the Defendants, or Federal Action and,
collectively with the State Action, the Actions, which makes
allegations related to the Acquisition that are substantially
similar to those matters alleged in the Amended Complaint,
includes additional allegations regarding purported violations of
the federal securities laws and seeks substantially similar
relief.
On October 8, 2010, the Defendants reached agreement in principle
with the plaintiffs in the Actions regarding the settlement of the
Actions. The terms of the settlement contemplated by that
agreement in principle require that Trubion and the Company make
certain additional disclosures related to the Acquisition. The
parties also agreed that the plaintiffs in the Actions may seek
attorneys' fees and costs in an aggregate amount up to $475,000,
to be paid by Trubion if such fees and costs are approved by the
State Court.
There will be no other payment by Trubion, any of the members of
the Trubion board of directors or the Company to the plaintiffs or
their respective counsels in connection with the settlement and
dismissal of the Actions. The agreement in principle further
contemplates that the parties will enter into a stipulation of
settlement, which will be subject to customary conditions,
including State Court approval following notice to Trubion's
shareholders. The Actions were stayed pending approval of the
settlement of the State Action by the State Court, after which the
State Action and all claims asserted therein will be dismissed
with prejudice and counsel for the plaintiff in the Federal Action
will take all necessary steps to dismiss the Federal Action and
all claims asserted therein with prejudice. On April 26, 2011, the
State Court entered an order granting preliminary approval of the
settlement and requiring that notice of the settlement and
preliminary approval be mailed to class members by May 17, 2011.
The order also provided that all class members wishing to be
excluded from the settlement of the Actions give notice by
June 21, 2011. At the subsequently scheduled hearing on July 29,
2011, the State Court determined the settlement was fair,
reasonable and adequate to the class members and approved the
settlement in all respects and entered a Final Judgment and Order
of Dismissal with Prejudice.
EQT CORP: Balks at Ruling on Coalbed Methane Class Action
---------------------------------------------------------
Steve Szkotak, writing for The Associated Press, reports that
energy company EQT Corp., which is a target of a class action
lawsuit possibly involving thousands of southwest Virginia
residents, denies it has misled property owners in seeking
settlements for coalbed methane claims.
In a strongly worded rebuke, the company's EQT Production Co. unit
has asked the U.S. District Court in Abingdon to overturn a ruling
by U.S. Magistrate Judge Pamela Meade Sargent that ordered EQT to
stop soliciting settlements with potential plaintiffs with "false
information."
EQT could write to landowners only if its representatives fully
explained their legal options by sharing the correspondence with
the court, Judge Sargent wrote in late July.
In a filing on Aug. 10, EQT attacked the opinion on several
grounds, accusing Judge Sargent of getting her facts wrong.
The company said it has not attempted to contact potential class
members, has clearly spelled out the options to landowners they
have approached, and has not lied to property owners.
"In her decision, the magistrate judge ignored these facts and
recited others that do not exist," wrote attorney Wade W. Massie,
representing EQT.
EQUITY LIFESTYLE: Continues to Defend Wage Claim Class Suits
------------------------------------------------------------
Equity Lifestyle Properties, Inc., continues to defend itself
against wage claim class action lawsuits in California and
Washington, according to the Company's August 4, 2011, Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
On October 16, 2008, the Company was served with a class action
lawsuit in California state court filed by a single named
plaintiff. The suit alleges that, at the time of the PA
Transaction, the Company and other named defendants willfully
failed to pay former California employees of Privileged Access and
its affiliates ("PA") who became employees of the Company all of
the wages they earned during their employment with PA, including
accrued vacation time. The suit also alleges that the Company
improperly "stripped" those employees of their seniority. The suit
asserts claims for alleged violation of the California Labor Code;
alleged violation of the California Business & Professions Code
and for alleged unfair business practices; alleged breach of
contract; alleged breach of the duty of good faith and fair
dealing; and for alleged unjust enrichment. The original complaint
sought, among other relief, compensatory and statutory damages;
restitution; pre-judgment and post-judgment interest; attorney's
fees, expenses and costs; penalties; and exemplary and punitive
damages. The complaint did not specify a dollar amount sought. The
Court granted in part without leave to amend and in part with
leave to amend the Company's motions seeking dismissal of the
plaintiff's original complaint and various amended complaints.
Discovery is proceeding on the remaining claims in the third
amended complaint. On February 15, 2011, the Court granted
plaintiff's motion for class certification. On June 22, 2011, the
Court determined the content of the class notice. The Company will
vigorously defend the lawsuit.
On December 16, 2008, the Company was served with a class action
lawsuit in Washington state court filed by a single named
plaintiff, represented by the same counsel as the plaintiff in the
California class action. The complaint asserts on behalf of a
putative class of Washington employees of PA who became employees
of the Company substantially similar allegations as are alleged in
the California class action. The Company moved to dismiss the
complaint. On April 3, 2009, the court dismissed: (1) the first
cause of action, which alleged a claim under the Washington Labor
Code for failure to pay accrued vacation time; (2) the second
cause of action, which alleged a claim under the Washington Labor
Code for unpaid wages on termination; (3) the third cause of
action, which alleged a claim under the Washington Labor Code for
payment of wages less than entitled; and (4) the fourth cause of
action, which alleged a claim under the Washington Consumer
Protection Act. The court did not dismiss the fifth cause of
action for breach of contract, the sixth cause of action for
breach of the duty of good faith and fair dealing; or the seventh
cause of action for unjust enrichment. On May 22, 2009, the
Company filed a motion for summary judgment on the causes of
action not previously dismissed, which was denied. With leave of
court, the plaintiff filed an amended complaint, the material
allegations of which the Company denied in an answer filed on
September 11, 2009. On July 30, 2010, the named plaintiff died as
a result of an unrelated accident. Plaintiff's counsel may attempt
to substitute a new named plaintiff. The Company will vigorously
defend the lawsuit.
EXPEDITORS INTERNATIONAL: Plea to Dismiss N.Y. Suit Still Pending
-----------------------------------------------------------------
Expeditors International of Washington, Inc.'s motion to dismiss
an antitrust class action lawsuit in New York remains pending,
according to the Company's August 5, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On January 3, 2008, the Company was named as a defendant, with
seven other European and North American-based global logistics
providers, in a Federal antitrust class action lawsuit filed in
the United States District Court of the Eastern District of New
York, Precision Associates, Inc. et al v. Panalpina World
Transport, No. 08-CV0042. On July 21, 2009, the plaintiffs filed
an amended complaint adding a number of new third party defendants
and various claims which they assert to violate the Sherman Act.
The plaintiffs' amended complaint, which purports to be brought on
behalf of a class of customers (and has not yet been certified),
asserts claims that the defendants engaged in price fixing
regarding eight discrete surcharges in violation of the Sherman
Act. The allegations concerning the Company relate to two of
these surcharges. The amended complaint seeks unspecified damages
and injunctive relief.
The Company believes that these allegations are without merit and
intends to vigorously defend itself. At this time the Company has
no way of predicting the ultimate outcome of this proceeding. The
Company expects to incur ongoing attorneys' fees and other defense
costs and, if there is an adverse judgment, monetary damages could
be substantial. On August 13, 2009, the Company filed a motion to
dismiss the amended complaint for failure to state a claim, which
is currently pending before the Court. Plaintiffs filed their
opposition to the Company's motion on January 30, 2010, and the
motion is currently pending before the Court.
GAMESTOP CORP: Faces Class Action Over Unsolicited Text Ads
-----------------------------------------------------------
Dietrich Knauth, writing for Law360, reports that GameStop Corp.
was hit with a putative class action on Aug. 10 in California
alleging the company violated the Telephone Consumer Protection
Act by sending unsolicited text message advertisements to
customers' cellphones.
The plaintiff, Viken H. Karayan, said he gave GameStop his
cellphone number so he could be notified about the availability of
an upcoming game release, according to the complaint. After
Mr. Karayan bought the game, GameStop continued to send text
messages with advertisements, according to the suit.
GREAT SOUTHERN: Continues to Defend Overdraft Fees Suit
-------------------------------------------------------
Great Southern Bancorp, Inc., continues to defend against a
lawsuit filed in Missouri over its overdraft fees, according to
the Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
On November 22, 2010, a lawsuit was filed against Great Southern
Bancorp, Inc. ("Bank") in Missouri state court in Springfield by a
customer alleging that the fees associated with the Bank's
automated overdraft program in connection with its debit card and
ATM cards constitute unlawful interest in violation of Missouri's
usury laws. The lawsuit seeks class-action status for Bank
customers who have paid overdraft fees on their checking accounts.
The Bank has filed for a motion to dismiss the suit.
At this early stage of the litigation, the Bank says it is not
possible for its management to determine the probability of a
material adverse outcome or reasonably estimate the amount of any
potential loss.
HARLAND CLARK: LaserPro-Related Class Suits Still Pending
---------------------------------------------------------
Class action lawsuits alleging that loans obtained from banks
employing software created by a wholly owned subsidiary of Harland
Clarke Holdings Corp. were deceptive or usurious remain pending,
according to the Company's August 4, 2011 Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
A series of commercial borrowers in various states that allegedly
obtained loans from banks employing LaserPro software created by
the Company's wholly owned subsidiary, Harland Financial
Solutions, Inc., have commenced individual or class actions
against their banks alleging that the loans were deceptive or
usurious in that they failed to disclose properly the effect of
the "365/360" method of calculating interest. In some cases, the
banks have made warranty claims against HFS related to these
actions. Some of these actions have already been dismissed, and
many of the remainder, and the related warranty claims, are at
early stages, so that the likely progress of the matters still
pending is not yet clear. HFS settled one warranty claim in 2009
for an immaterial amount without any admission of liability. The
Company has not accepted any of the warranty claims and does not
believe that any of these claims will result in material liability
for the Company, but there can be no assurance.
HAWAII SCHOOL: Faces Class Action Over Sexual Abuse
---------------------------------------------------
The Associated Press reports that a class-action lawsuit alleges
bullying, assault and rape at the Hawaii School for the Deaf and
the Blind.
The suit claims school officials knew about the alleged acts and
did nothing.
The state Department of Education says officials are reviewing the
lawsuit.
According to news reports police have launched an investigation.
The Honolulu Star-Advertiser reports three juvenile boys who are
former or current students of the school have been arrested on sex
assault charges.
Attorney Michael Green tells reporters the alleged acts date back
to 2001.
HAWAIIAN ELECTRIC: Continues to Defend Suit Over Overdraft Fees
---------------------------------------------------------------
Hawaiian Electric Industries Inc. continues to defend itself from
a purported class action lawsuit over alleged improperly charged
overdraft fees on debit card transactions, according to the
Company's August 4, 2011 Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended June 30, 2011.
In March 2011, a purported class action lawsuit was filed by a
customer who claimed that American Savings Bank, F.S.B., a
subsidiary of the Company had improperly charged overdraft fees on
debit card transactions. Management is evaluating the merits of
the claims alleged in the lawsuit, which is in its preliminary
stage. Thus, the outcome is not determinable.
Hawaiian Electric Industries, Inc. is the direct parent company of
Hawaiian Electric Company, Inc.; American Savings Holdings, Inc.;
HEI Properties, Inc.; Hawaiian Electric Industries Capital Trust
II; Hawaiian Electric Industries Capital Trust III and The Old
Oahu Tug Service, Inc.
HEARTWARE INTERNATIONAL: Faces Suit by Preferred Stockholders
-------------------------------------------------------------
Heartware International, Inc., is facing a class action lawsuit in
Massachusetts filed by two Series A Preferred Stockholders,
according to the Company's August 5, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On June 27, 2011, HeartWare International, Inc., and HeartWare,
Inc., along with HeartWare's directors, certain officers and a
significant stockholder, were named as defendants in a putative
class action lawsuit filed in Massachusetts state court by two
Series A Preferred Stockholders on behalf of all holders of Series
A Preferred Stock. The complaint alleges that the defendants
breached their fiduciary and contractual obligations to Series A
Preferred Stockholders by preventing them from receiving a payment
of the liquidation preference in connection with certain corporate
transactions, including a transaction in 2005 in which HeartWare,
Inc., was acquired by HeartWare Limited, a subsidiary of HeartWare
International, Inc. The plaintiffs seek monetary damages,
interest, costs and limited equitable relief. The Company does not
believe HeartWare International, Inc., HeartWare, Inc. or any of
its directors, officers or stockholders have abrogated the rights,
or in any way failed to satisfy obligations owed to, any of its
stockholders, including holders of Series A Preferred Stock. The
Company intends to vigorously defend the suit.
JONES FINANCIAL: Unit Continues to Defend Suit Over Certificates
----------------------------------------------------------------
The Jones Financial Companies, L.L.L.P.'s subsidiary continues to
defend itself against a consolidated lawsuit over certain
mortgage-backed certificates, according to the Company's August 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 24, 2011.
Three matters (David H. Luther, et al. v. Countrywide Financial
Corporation, et al; Washington State Plumbing & Pipefitting
Pension Trust, et al. v. Countrywide Financial Corporation, et
al.; and Maine State Retirement System, et al. v. Countrywide
Financial Corporation, et al.) were filed in 2007, 2008, and 2010,
respectively, in California state and federal courts. In these
matters, plaintiffs allege against numerous issuers and
underwriters, including the principal operating subsidiary of The
Jones Financial Companies, L.L.L.P. (the "Partnership"), Edward D.
Jones & Co., L.P. ("Edward Jones"), certain violations of the
Securities Act of 1933, as amended (the "1933 Act") in connection
with registration statements and prospectus supplements issued
between January 2005 and June 2007 for certain mortgage-backed
certificates. Luther and Washington State Plumbing were
consolidated in October 2008 in California State Court. In
January 2010, the court in Luther granted the defendants' demurrer
and dismissed the case with prejudice. In March 2010, plaintiffs
appealed the dismissal and on May 18, 2011, the California Court
of Appeals reversed the Luther court's dismissal.
In January 2010, plaintiffs filed the Maine State Retirement
System case in California federal court. Plaintiffs filed an
Amended Consolidated Class Action Complaint on July 13, 2010. On
November 4, 2010, the court entered an order dismissing
plaintiff's claims to the extent they related to any certificates
for which Edward Jones acted as dealer. The Maine State
defendants filed a motion to dismiss that case, which the court
granted in part on May 5, 2011. The Maine State court directed
plaintiffs to amend their complaint. There are no claims
currently pending against Edward Jones in this amended complaint.
In both matters, the plaintiffs seek unspecified compensatory
damages, attorneys' fees, costs, expenses and rescission. On
November 17, 2010, a fourth matter was filed in California state
court, Western Conference of Teamsters Pension Trust Fund v.
Countrywide Financial Corporation, et al., re-asserting the claims
dismissed by the Court in the Maine State Retirement case. That
case has been stayed by agreement of the parties, pending the
final outcome of the Luther appeal.
JONES FINANCIAL: Motion to Dismiss Lehman-Related Suit Pending
--------------------------------------------------------------
The Jones Financial Companies, L.L.L.P.'s subsidiary's motion to
dismiss the third amended complaint in a lawsuit related to Lehman
Brothers remains pending, according to the Company's August 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 24, 2011.
In October 2008, a putative class action lawsuit was filed in
Arkansas state court, Saline County, under Sections 11, 12(a)(2)
and 15 of the Securities Act of 1933 Act ("the 1933 Act"), against
certain officers and directors of Lehman Brothers Holdings, Inc.
and a syndicate of underwriters, including Edward Jones, of Lehman
bonds sold pursuant to the registration statement and prospectus
dated May 30, 2006, and various prospectus supplements dated
October 22, 2006, and thereafter. Edward D. Jones & Co., L.P.
("Edward Jones") is the principal operating subsidiary of The
Jones Financial Companies, L.L.L.P. (the "Partnership").
In November 2008, a similar lawsuit was filed in Arkansas state
court, Benton County, against the same defendants stemming from
the sale of 6.5% Lehman Bonds maturing October 25, 2027, pursuant
to the registration statement and prospectus and prospectus
supplement dated August 2, 2007 (collectively referred to as
"Lehman Bonds"). Plaintiffs in both actions allege the defendants
made material misrepresentations to the purchasers of Lehman
Bonds. While each lawsuit relates to a different series of Lehman
bonds, the plaintiffs in each lawsuit seek unspecified
compensatory damages, attorneys' fees, costs and expenses. In
February 2009, the U.S. Judicial Panel on Multidistrict Litigation
transferred these two actions to the Southern District of New York
("SDNY") for coordinated or consolidated pretrial proceedings with
similar actions pending in the SDNY. Lead plaintiffs in the
consolidated Lehman securities class action filed a Third Amended
complaint in April 2010, which alleges that Edward Jones
underwrote two separate offerings of Lehman notes in February and
April 2008. Defendants filed a Motion to Dismiss the Third
Amended Complaint in July 2010, which is currently pending.
KEYCORP: Motion to Dismiss Madoff-Related Suit Still Pending
------------------------------------------------------------
KeyCorp's motion to dismiss the consolidated amended complaint
in In re Austin Capital Management, Ltd., Securities & Employee
Retirement Income Security Act (ERISA) Litigation remains pending,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
Austin Capital Management Ltd., a subsidiary that specialized in
managing hedge fund investments for institutional customers,
determined that its funds had suffered investment losses of up to
approximately $186 million resulting from the crimes perpetrated
by Bernard L. Madoff and entities that he controlled. The
investment losses borne by Austin's funds stem from investments in
certain Madoff-advised "hedge" funds. Several lawsuits, including
putative class actions and direct actions, and an arbitration
proceeding, are pending against Austin, KeyCorp, Victory Capital
Management and certain employees and former employees of Key
alleging various claims (collectively the "KeyCorp defendants"),
including negligence, fraud, breach of fiduciary duties, and
violations of federal securities laws and ERISA. Additionally, an
informal demand asserted against Austin seeks recovery related to
certain redemptions of investments made by Austin funds in Madoff-
advised "hedge" funds prior to the revelation of Madoff's crimes.
Most of the lawsuits have been consolidated into one action styled
In re Austin Capital Management, Ltd., Securities & Employee
Retirement Income Security Act (ERISA) Litigation ("Austin MDL")
pending in federal court in New York. The KeyCorp defendants'
motion to dismiss the consolidated amended complaint is pending in
the Austin MDL. The arbitration proceeding remains in abeyance.
KINETIC CONCEPTS: Faces Two Shareholder Suits in Texas Over Merger
------------------------------------------------------------------
Kinetic Concepts, Inc., is facing two shareholder class action
lawsuits in Texas challenging its merger agreement with a
consortium of funds advised by Apax Partners, according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
Following the announcement on July 13, 2011, that KCI had entered
into a definitive merger agreement under which a consortium of
funds advised by Apax Partners will acquire KCI (the "Merger"),
two purported shareholders of KCI initiated legal actions
challenging the Merger. On July 20, 2011, purported shareholder
John Chevedden sent a letter to the KCI Board of Directors
demanding that the Board take actions to remedy alleged breaches
of fiduciary duties in connection with the Board's approval of the
Merger. The purported shareholder stated that if the Board of
Directors does not take actions as demanded in his letter, he will
prosecute a shareholder derivative action against the Company and
its directors. The Board of Directors will review this purported
shareholder's demand and determine how to proceed in response to
the allegations.
On July 22, 2011, purported shareholder Sharon M. Dunn filed a
putative class action petition in the District Court of Bexar
County, Texas, 288th Judicial District, in an action styled Dunn
v. Apax Partners et al., Case No. 2011-CI-11943. The action
asserts claims against KCI's directors and against KCI as a
nominal defendant, and additionally names as defendants Apax
Partners, Chiron Holdings, Inc., Chiron Merger Sub, Inc., and John
Does 1-25 (unidentified associates and affiliates of Apax Partners
forming the consortium to purchase the Company) (collectively,
"Apax Partners"). The petition in this putative class action
alleges that KCI's directors breached their fiduciary duties to
shareholders and committed gross mismanagement and waste of
corporate assets by their actions in approving the merger
agreement. The petition further alleges that Apax Partners aided
and abetted these alleged breaches of fiduciary duties. The
petition requests that the Merger be enjoined.
On August 2, 2011, purported shareholder Michael Ross filed a
putative class action petition in the District Court of Bexar
County, Texas, 224th Judicial District, in an action styled Ross
v. Kinetic Concepts, Inc. et al., Case No. 2011-CI-12497. This
action asserts claims against KCI and its directors and
additionally names as defendants Apax Partners, the Canada Pension
Plan Investment Board, the Public Sector Pension Investment Board,
Chiron Merger Sub, Inc., and Chiron Holdings, Inc. The petition
in this putative class action alleges that KCI and its directors
breached their fiduciary duties to shareholders by their actions
in approving the merger agreement. The petition further alleges
that the remaining defendants aided and abetted these alleged
breaches of fiduciary duties. The petition requests that the
Merger be enjoined.
Although it is not possible to predict the outcome of these
litigation matters with certainty, KCI and its directors believe
that the claims raised by these purported shareholders are without
merit, and the defendants intend to defend their positions in
these matters vigorously. Currently the Company cannot determine
whether the ultimate outcome of these legal actions will have a
material impact on the Company's financial position, results of
operations, or cash flows.
KOHLBERG CAPITAL: Plaintiff Has Until Aug. 22 to Amend Complaint
----------------------------------------------------------------
Kohlberg Capital Corporation will continue to defend itself from a
consolidated lawsuit if a further amended complaint is filed by
August 22, 2011, according to the Company's August 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
The Company and certain directors and officers are named as
defendants in three putative class actions pending in the Southern
District of New York brought by stockholders of the Company and
filed in December 2009 and January 2010. The complaints in these
three actions allege violations of Sections 10 and 20 of the
Exchange Act based on the Company's disclosures of its year-end
2008 and first- and second-quarter 2009 financial statements. The
federal court consolidated the three lawsuits and appointed a lead
plaintiff under the Private Securities Litigation Reform Act on
March 21, 2011, and lead plaintiff filed a consolidated amended
complaint on May 11, 2011. The Company moved to dismiss the
consolidated amended complaint. On July 28, 2011, the Court
granted that motion and dismissed the consolidated amended
complaint, giving the plaintiff until August 22, 2011 to file any
further amended complaint. The Company believes that the suit is
without merit and if the plaintiff files an amended complaint,
will defend it vigorously.
LEGGETT & PLATT: Continues to Defend Antitrust Suits in Ohio
------------------------------------------------------------
Leggett & Platt, Incorporated continues to defend itself in class
action lawsuits brought by direct purchasers of polyurethane foam
products, according to the Company's August 4, 2011 Form 10-Q
filing with the U.S. Securities and Exchange Commission for the
quarter ended June 30, 2011.
Beginning in August 2010, a series of civil lawsuits was initiated
in several U.S. federal courts against over 20 defendants alleging
that competitors of the Company's carpet underlay division and
other manufacturers of polyurethane foam products had engaged in
price fixing in violation of U.S. antitrust laws.
A number of these lawsuits have been voluntarily dismissed without
prejudice. Of the cases remaining, the Company has been named as a
defendant in (a) four direct purchaser class action cases and a
consolidated amended class action complaint filed on February 28,
2011 on behalf of a class of all direct purchasers of polyurethane
foam products; (b) an indirect purchaser class consolidated
amended complaint filed March 21, 2011; (c) an individual direct
purchaser case filed on March 22, 2011; and (d) an indirect
purchaser class action case filed on May 23, 2011. All pending
cases in which the Company has been named as a defendant have been
filed in or transferred to the U.S. District Court for the
Northern District of Ohio under the name In re: Polyurethane Foam
Antitrust Litigation, Case No. 1:10-MD-02196.
In these actions, the plaintiffs, on behalf of themselves or a
class of purchasers, seek three times the amount of unspecified
damages allegedly suffered as a result of alleged overcharges in
the price of polyurethane foam products from at least 1999 to the
present. Each plaintiff also seeks attorney fees, pre-judgment and
post-judgment interest, court costs, and injunctive relief against
future violations. On April 15 and May 6, 2011, the Company filed
motions to dismiss direct purchaser and indirect purchaser class
actions, for failure to state a legally valid claim. On July 19,
2011, the Court denied the motions to dismiss.
The Company denies all of the allegations in these actions and
will vigorously defend itself. This contingency is subject to many
uncertainties. Therefore, based on the information available to
date, the Company cannot estimate the amount or range of potential
loss, if any. At this time, the Company does not expect that the
outcome of these actions will have a material adverse effect on
our financial condition, operating cash flows or results of
operations.
Leggett & Platt, Incorporated is a manufacturer of: components for
residential furniture and bedding, power foundations, carpet
underlay, components for office furniture, drawn steel wire,
automotive seat support and lumbar systems, and bedding industry
machinery.
LEXMARK INT'L: Appeal From $8.3MM Award in "Molina" Suit Pending
----------------------------------------------------------------
Lexmark International, Inc.'s appeal from a trial court's award of
approximately $8.3 million in damages to plaintiffs in the class
action lawsuit captioned Molina v. Lexmark remains pending,
according to the Company's August 8, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On August 31, 2005, former Company employee Ron Molina filed a
class action lawsuit in the California Superior Court for Los
Angeles under a California employment statute which in effect
prohibits the forfeiture of vacation time accrued. This statute
has been used to invalidate California employers' "use or lose"
vacation policies. The class is comprised of less than 200
current and former California employees of the Company. The trial
was bifurcated into a liability phase and a damages phase. On
May 1, 2009, the trial court Judge brought the liability phase to
a conclusion with a ruling that the Company's vacation and
personal choice day's policies from 1991 to the present violated
California law. In a Statement of Decision, received by the
Company on August 27, 2010, the trial court Judge awarded the
class members approximately $8.3 million in damages which included
waiting time penalties and interest but did not include post-
judgment interest, costs and attorneys' fees. On November 17,
2010, the trial court Judge partially granted the Company's motion
for a new trial solely as to the argument that current employees
are not entitled to any damages. On March 7, 2011, the trial
court Judge reduced the original award to $7.8 million. On
June 21, 2011, the class members filed a motion for attorneys'
fees seeking $5.7 million.
The Company filed a notice of appeal with the California Court of
Appeals objecting to the trial court Judge's award. The appeal is
pending.
The Company believes an unfavorable outcome in the matter is
probable. The range of potential loss related to this matter is
subject to a high degree of estimation. In accordance with U.S.
GAAP, if the reasonable estimate of a probable loss is a range and
no amount within the range is a better estimate, the minimum
amount of the range is accrued. The Company has reserved a total
of $1.8 million including attorney fees for estimated damages in
the matter. The amount recorded represents an estimate at the
minimum amount of the range. At the high end of the range, the
class has sought approximately $16.7 million, the highest
forfeiture amount asserted by the class' expert based on an
assumption that none of the California employees ever used any of
their accrued vacation or personal choice days and this $16.7
million amount does not include post judgment interest, costs and
attorneys' fees which also may be assessed against the Company.
While the Company believes it has meritorious defenses, the
ultimate resolution of the matter could result in an additional
loss of up to $14.9 million, excluding post judgment interest,
costs and attorneys' fees, in excess of the amount accrued.
Established in 1991, Lexmark International, Inc. --
http://www.lexmark.com/-- is a developer, manufacturer and
supplier of printing, imaging and document workflow solutions for
the office. The Company also operates in the office imaging and
ECM markets. Lexmark's products include laser printers, inkjet
printers, multifunction devices, dot matrix printers and
associated supplies, solutions and services and ECM software
solutions and services.
LINCOLN EDUCATIONAL: Awaits Ruling on Motion to Dismiss Class Suit
------------------------------------------------------------------
Lincoln Educational Services Corporation is awaiting a court
ruling on its motion to dismiss a consolidated class action
lawsuit pending in New Jersey, according to the Company's
August 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
The Company and several executive officers have been named as
defendants in two purported securities class action lawsuits. The
complaints, which were both filed in the U.S. District Court for
the District of New Jersey, allege that the Company and the other
defendants made false and misleading statements and failed to
disclose material adverse facts about the Company's business and
prospects in violation of federal securities laws. The plaintiff
seeks damages for the purported class. The complaints were filed
on August 13, 2010 and September 19, 2010, and are respectively
captioned, Donald J. and Mary S. Moreaux v. Lincoln Educational
Services Corp., et al., and Robert Lyathaud v. Lincoln Educational
Services Corp., et al. On November 24, 2010, the Court
consolidated the two actions under the caption In re Lincoln
Educational Services Corp. Securities Litigation and appointed a
lead plaintiff. A consolidated amended complaint was filed on
February 14, 2011. On April 15, 2011, defendants filed a motion
to dismiss all of the claims asserted therein. That motion has
been fully briefed and is currently pending before the Court.
LOOPNET INC: Signs MOU to Settle Merger-Related Class Suits
-----------------------------------------------------------
Loopnet, Inc., signed in June 2011 a memorandum of understanding
to settle class action lawsuits challenging its proposed merger
with CoStar Group, Inc., according to the Company's August 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
On April 27, 2011, LoopNet and the CoStar Group, Inc. ("CoStar")
announced the signing of a merger agreement for the acquisition of
LoopNet by CoStar (the "Merger"), which was approved by LoopNet's
stockholders at a special meeting on July 11, 2011. Completion of
the Merger remains subject to the expiration or termination of the
waiting period imposed by the Hart-Scott Rodino Antitrust
Improvement Act of 1976 as amended, and satisfaction or waiver of
the other closing conditions specified in the merger agreement.
The Merger is expected to close by the end of 2011.
The Company and its board of directors and CoStar have been named
as defendants in three putative class action lawsuits brought by
alleged stockholders challenging Loopnet's proposed merger with
CoStar. Two of the actions, Raymond E. Williams Jr. v. LoopNet,
Inc., et al. and Ronald T. West v. Richard Boyle, et al., were
filed on or around May 3, 2011 and Ronald T. West v. Richard
Boyle, et al. was amended on May 20, 2011. The third action, Karin
Cahill v. LoopNet, Inc., et al., was filed on June 3, 2011. All
three actions were filed in the Superior Court of California,
County of San Francisco. The complaints generally allege, among
other things, that each member of the board breached his fiduciary
duties to the Company's stockholders by authorizing the sale of
the Company to CoStar for consideration that does not maximize
value to the shareholders and engineering the transaction to
benefit themselves without regard to the Company's shareholders.
The complaints also generally allege that the Company (and, in the
case of the Ronald T. West action, CoStar) aided and abetted the
breaches of fiduciary duty allegedly committed by the members of
the board and made incomplete or materially misleading disclosures
about the proposed transaction. The shareholder actions seek
equitable relief, including an injunction against consummating the
merger.
On June 21, 2011, counsel for the parties in the lawsuits entered
into a memorandum of understanding in which they agreed on the
terms of a settlement of all litigation, which would include the
dismissal with prejudice of all claims against all of the
defendants. The proposed settlement is conditional upon, among
other things, the execution of an appropriate stipulation of
settlement, consummation of the merger and final approval of the
proposed settlement by the court. In addition, in connection with
the settlement and as provided in the memorandum of understanding,
the parties contemplate that plaintiff's counsel will seek an
award of attorneys' fees and expenses as part of the settlement.
There can be no assurance that the Merger will be consummated,
that the parties ultimately will enter into a stipulation of
settlement or that the court will approve the settlement even if
the parties enter into such stipulation. In such event, the
proposed settlement as contemplated by the memorandum of
understanding may be terminated. The settlement will not affect
the amount of the merger consideration that the Company's
stockholders are entitled to receive in the Merger.
MANNKIND CORP: Continues to Defend Consolidated Shareholder Suit
----------------------------------------------------------------
MannKind Corporation continues to defend itself against a
consolidated shareholder class action lawsuit, according to the
Company's August 4, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
Following the Company's receipt of the Complete Response letter
from the United States Food and Drug Administration ("FDA")
regarding the new drug application ("NDA") for AFREZZA in January
2011, and the subsequent decline of the price of its common stock,
several complaints were filed in the U.S. District Court for the
Central District of California against the Company and certain of
its officers and directors on behalf of certain purchasers of its
common stock. The complaints include claims asserted under
Sections 10(b) and 20(a) of the Exchange Act and have been brought
as purported shareholder class actions. In general, the complaints
allege that the Company and certain of its officers and directors
violated federal securities laws by making materially false and
misleading statements regarding its business and prospects for
AFREZZA, thereby artificially inflating the price of its common
stock. The plaintiffs are seeking unspecified monetary damages and
other relief. The complaints have been transferred to a single
court and consolidated for all purposes. The court has appointed a
lead plaintiff and lead counsel and a consolidated complaint was
filed on June 27, 2011. The Company will vigorously defend against
the claims advanced.
MOHAWK INDUSTRIES: Court Refuses to Dismiss Polyurethane Suit
-------------------------------------------------------------
The U.S. District Court for the Northern District of Ohio denied
Mohawk Industries, Inc.'s motions to dismiss claims brought by
direct and indirect purchasers of polyurethane foam products in
a consolidated antitrust lawsuit, according to the Company's
August 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 2, 2011.
Beginning in August 2010, a series of civil lawsuits was initiated
in several U.S. federal courts alleging that certain manufacturers
of polyurethane foam products and competitors of the Company's
carpet underlay division had engaged in price fixing in violation
of U.S. antitrust laws. Mohawk has been named as a defendant in
seven of the 43 cases filed (the first on August 26, 2010), as
well as in two consolidated amended class action complaints, the
first filed on February 28, 2011, on behalf of a class of all
direct purchasers of polyurethane foam products, and the second
filed on March 21, 2011, on behalf of a class of indirect
purchasers. All pending cases in which the Company has been named
as a defendant have been filed in or transferred to the U.S.
District Court for the Northern District of Ohio for consolidated
pre-trial proceedings under the name In re: Polyurethane Foam
Antitrust Litigation, Case No. 1:10-MDL-02196.
In these actions, the plaintiffs, on behalf of themselves and/or a
class of purchasers, seek three times the amount of unspecified
damages allegedly suffered as a result of alleged overcharges in
the price of polyurethane foam products from at least 1999 to the
present. Each plaintiff also seeks attorney fees, pre-judgment
and post-judgment interest, court costs, and injunctive relief
against future violations. In April 2011, the Company filed a
motion to dismiss the class action claims brought by the direct
purchasers, and in May 2011, the Company moved to dismiss the
claims brought by the indirect purchasers. On July 19, 2011, the
Court issued a written opinion denying all defendants' motions to
dismiss. The Company denies all of the allegations in these
actions and will vigorously defend itself.
The Company believes that adequate provisions for resolution of
all contingencies, claims and pending litigation have been made
for probable losses and that the ultimate outcome of these actions
will not have a material adverse effect on its financial condition
but could have a material adverse effect on its results of
operations in a given quarter or year.
NASCAR HOLDINGS: Sued for Sending Unsolicited Spam Text Messages
----------------------------------------------------------------
Courthouse News Service reports that three federal class actions
accuse these companies of sending unsolicited spam via text
messages: NASCAR Holdings, NFL Enterprises, and Gamestop. A
fourth class action claims Union Bank annoys people with spam
phone calls.
A copy of the Complaint in Jaber v. NASCAR Holdings, Inc., Case
No. 11-cv-01783 (S.D. Calif.), is available at:
http://www.courthousenews.com/2011/08/11/Spam.pdf
The Plaintiff is represented by:
Joshua B. Swigart, Esq.
Robert L. Hyde, Esq.
HYDE & SWIGART
411 Camino Del Rio South, Suite 301
San Diego, CA 92108-3551
Telephone: (619) 233-7770
E-mail: josh@westcoastlitigation.com
bob@westcoastlitigation.com
- and -
Abbas Kazerounian, Esq.
KAZEROUNI LAW GROUP APC
2700 North Main Street, Ste. 1050
Santa Ana, CA 92866
Telephone: (800) 400-6808
E-mail: ak@kazlg.com
NEW YORK LAW: Manipulates Employment Statistics, Suit Says
----------------------------------------------------------
Alexandra Gomez-Jimenez, Scott Tiedke and Katherine Cooper, on
behalf of themselves and all others similarly situated v. New York
Law School, Case No. 652226/2011 (N.Y. Sup. Ct., August 10, 2011)
seeks to remedy a systemic, ongoing fraud that is ubiquitous in
the legal education industry and threatens to leave a generation
of law students in dire financial straits. The Plaintiffs allege
that New York Law School misrepresents and manipulates its
employment statistics to prospective students, to mislead and
defraud its students while saddling them with tens of thousands of
dollars in crushing, non-dischargeable debt.
The class claims: "New York Law's dean, Richard Matasar, actually
publicly recognized this problem, when, during a program sponsored
by the Association of American Law Schools, [he] acknowledged that
'we (law school deans) should be ashamed of ourselves. We own our
students' outcomes. We took them. We took their money. . . .
And if they don't have a good outcome in life, we're exploiting
them. It's our responsibility to own the outcomes of our
institutions. If they're not doing well . . . it's gotta be
fixed. Or we should shut the damn place down. And that's a moral
responsibility that we bear in the academy.'"
The complaint continues: "However, far from heeding his own advice
by taking 'ownership' of his students' outcomes, Mr. Matasar's
school consigns the overwhelming majority of them to years of
indentured servitude, saddling them with tens of thousands of
dollars in crushing, non-dischargeable debt that will take
literally decades to pay off. New York Law has done this while
blatantly misrepresenting and manipulating its employment
statistics to prospective students, employing the type of 'Enron-
style' accounting techniques that would leave most for-profit
companies facing the long barrel of a government investigation and
the prospect of paying a substantial civil fine. These deceptions
are perpetuated so as to prevent prospective students from
realizing the obvious -- that attending NYLS and forking over
nearly $150,000 in tuition payments is a terrible investment which
makes little economic sense and, most likely, will never pay off.
"Specifically, NYLS, through both its print and internet marketing
materials, commits two basic written, uniform misrepresentations.
First, the school during the class period claims that the
overwhelming majority of its graduates -- roughly between 90 and
95% -- secure employment within nine months of graduation.
However, the reality of the situation is that these seemingly
robust numbers include any type of employment, including jobs that
have absolutely nothing to do with the legal industry, do not
require a JD degree or are temporary or part-time in nature.
Rather, if NYLS was to disclose the more pertinent employment
statistic -- i.e. those graduates who have secured full-time,
permanent positions for which a JD degree is required or preferred
-- the numbers would drop dramatically, and could be well below
50%, if not even lower.
"Second, NYLS grossly inflates its graduates' reported mean
salaries, by calculating them based on a small, mostly self-
selected subset of graduates who actually submit their salary
information. To that end, if the Defendants were to disclose
salary data based on a broad, statistically meaningful
representation of its graduates, by including more graduates who
have failed to secure full-time, permanent employment, the
reported mean salaries would decline precipitously.
"Defendants' deceptions are all the more shocking considering that
the school has functioned as a veritable 'JD-factory', enrolling
in 2009 1,596 total students, an increase of 270 students from
2000. In 2009, at the height of the 'Great Recession' and while
the legal industry was experiencing historic job cuts, NYLS
enrolled its largest first-year class ever -- 736 students --
which was an astounding 30% increase from the previous year. As
detailed in a recent New York Times expose, these increases can
largely be explained by the school's desire to maintain the AAA
rating that Moody's had given the school's $135 million bond
offering which was floated to finance the construction of a brand
new 235,000-square-foot complex.
"Compounding problems, there is no place where prospective
students can find NYLS's 'real' employment numbers. The school
supplies the same dubious statistics to the U.S. News & World
Report ('US News') and the American Bar Association ('ABA'), the
two primary sources of information for law school employment data.
Like NYLS, these sources count as 'employed' those who have
secured employment in any capacity in any kind of job, no matter
how unrelated to the legal field."
The Plaintiffs assert that they want to bring an element of
"sunlight" or transparency to the way law schools report post-
graduate employment data and salary information, by requiring that
the schools make critical, material disclosures that will give
both prospective and current students a more accurate picture of
the students' post-graduate financial situation, as opposed to the
status quo where law schools are incentivized to engage in all
sorts of legerdemain when tabulating employment statistics.
The students demand $200 million in damages for fraud, negligent
misrepresentation, and violations of business law.
The Plaintiffs previously attended New York Law School.
Ms. Gomez-Jimenez and Mr. Tiedke are practicing attorneys in
Manhattan, while Ms. Cooper is licensed to practice in New York.
New York Law School is an American Bar Association-accredited law
school and a New York not-for-profit corporation. The true names
and capacities of the Doe Defendants are currently unknown to the
Plaintiffs.
A copy of the Complaint in Gomez-Jimenez, et al. v. New York Law
School, et al., Index No. 652226/2011 (N.Y. Sup. Ct., N.Y. Cty.),
is available at:
http://www.courthousenews.com/2011/08/11/NYLaw.pdf
The Plaintiffs are represented by:
David Anziska, Esq.
Jeff Kurzon, Esq.
Jesse Strauss, Esq.
KURZON STRAUSS LLP
305 Broadway, 9th Floor
New York, NY 10007
Telephone: (212) 822-1496
Facsimile: (212) 822-1407
E-mail: Anziska@KurzonStrauss.com
Jeff@KurzonStrauss.com
Jesse@KurzonStrauss.com
NEXCEN BRANDS: Dec. 2 Class Action Settlement Hearing Set
---------------------------------------------------------
A Notice of Pendency and Proposed Settlement of Class Action has
been issued in a litigation brought against NexCen Brands, Inc.
Master File No. 1:08-CV-04906 (AKH)
SUMMARY NOTICE OF PENDENCY AND PROPOSED CLASS ACTION SETTLEMENT
TO: ALL PERSONS OR ENTITIES WHO PURCHASED THE PUBLICLY-TRADED
COMMON STOCK OF NEXCEN BRANDS, INC. FROM MARCH 13, 2007 THROUGH
MAY 18, 2008, AND WHO WERE ALLEGEDLY DAMAGED THEREBY
YOU ARE HEREBY NOTIFIED that this class action is pending and that
a settlement of it for $4,000,000 has been proposed. A hearing
will be held on December 2, 2011 at 12:00 p.m. in Courtroom 14D
before the Honorable Alvin K. Hellerstein, United States District
Judge of the Southern District of New York, 500 Pearl Street, New
York, New York 10007 for the purpose of determining: (1) whether
the proposed settlement should be approved by the Court as fair,
reasonable, and adequate; (2) whether the proposed plan for
distribution of the settlement proceeds is fair, reasonable and
adequate; (3) whether the application for an award of attorneys'
fees of up to 30% of the settlement amount and reimbursement of
expenses of not more than $70,000 should be approved; and (4)
whether the litigation and all the claims against the Defendants
should be dismissed with prejudice.
IF YOU ARE A MEMBER OF THE CLASS DESCRIBED ABOVE, YOUR RIGHTS WILL
BE AFFECTED AND YOU MAY BE ENTITLED TO SHARE IN THE SETTLEMENT
FUND. If you think you may be a member of the Class but have not
received the full printed Notice of Pendency and Proposed
Settlement of Class Action and the Proof of Claim and Release form
you may obtain copies of these documents by contacting:
NexCen Brands Securities Litigation
c/o Strategic Claims Services
P.O. Box 230
600 North Jackson Street - Suite 3
Media, PA 19063
(866) 274-4004
or by printing them at http://www.nexcensettlement.com
Motions and supporting papers explaining why the Lead Plaintiff
and his counsel believe the Court should approve the settlement
and the request for an award of attorneys' fees and reimbursement
of expenses will be filed with the Court by November 2, 2011 and
posted at this Web site promptly thereafter.
For any questions or inquiries, other than requests for copies of
the Notice and Proof of Claim, please contact Counsel for the
Class:
Lisa M. Mezzetti
Matthew B. Kaplan
COHEN MILSTEIN SELLERS & TOLL PLLC
1100 New York Avenue, N.W.
Suite 500 West Tower
Washington, D.C. 20005
(202) 408-4600
http://www.cohenmilstein.com
To participate in this settlement, you must submit a Proof of
Claim no later than January 31, 2012. You will be bound by the
Order and Final Judgment rendered in the Litigation whether or not
you file a claim. As more fully described in the Notice, if you
wish to object to the proposed settlement or motion for fees and
costs, or want to exclude yourself from the Class, you can do so
by filing a request; your objection or request for exclusion must
be received by November 14, 2011.
Further information may be obtained by directing your inquiry in
writing to the Claims Administrator, Strategic Claims Services, at
the address listed above or through the Web site.
DATED: JULY 5, 2011
BY ORDER OF THE COURT.
CONTACT: Strategic Claims Services
(610) 565-9202
Fax: (610) 565-7985
600 N. Jackson Street, Suite 3
Media, PA 19063
NORTHWEST PIPE: Awaits Ruling on Motion to Dismiss "Plumbers" Suit
------------------------------------------------------------------
Northwest Pipe Company is awaiting a court ruling on its motion to
dismiss a consolidated securities class complaint in Washington,
according to the Company's August 8, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
On November 20, 2009, a complaint against the Company, captioned
Richard v. Northwest Pipe Co. et al., No. C09-5724 RBL, was filed
in the United States District Court for the Western District of
Washington. The plaintiff is allegedly a purchaser of the
Company's stock. In addition to the Company, Brian W. Dunham, the
Company's former President and Chief Executive Officer, and
Stephanie J. Welty, the Company's former Chief Financial Officer,
are named as defendants. The complaint alleges that defendants
violated Section 10(b) of the Securities Exchange Act of 1934 by
making false or misleading statements between April 23, 2008 and
November 11, 2009. Plaintiff seeks to represent a class of
persons who purchased the Company's stock during the same period,
and seeks damages for losses caused by the alleged wrongdoing.
A similar complaint, captioned Plumbers and Pipefitters Local
Union No. 630 Pension-Annuity Trust Fund v. Northwest Pipe Co. et
al., No. C09-5791 RBL, was filed against the Company in the same
court on December 22, 2009. In addition to the Company, Brian W.
Dunham, Stephanie J. Welty and William R. Tagmyer, the Company's
current Chairman of the Board, are named as defendants in the
Plumbers complaint. In the Plumbers complaint, as in the Richard
complaint, the plaintiff is allegedly a purchaser of the Company's
stock and asserts that defendants violated Section 10(b) of the
Securities Exchange Act of 1934 by making false or misleading
statements between April 23, 2008 and November 11, 2009.
Plaintiff seeks to represent a class of persons who purchased the
Company's stock during that period, and seeks damages for losses
caused by the alleged wrongdoing.
The Richard action and the Plumbers action were consolidated on
February 25, 2010. Plumbers and Pipefitters Local No. 630
Pension-Annuity Trust Fund was appointed lead plaintiff in the
consolidated action. Defendants and lead plaintiff subsequently
agreed that defendants did not need to respond immediately to
either of the two outstanding complaints, and that a consolidated
amended complaint would be filed within 45 days of the Company
having completed the filing of its Quarterly Report on Form 10-Q
for the quarter ended September 30, 2009 and the Company's 2009
Form 10-K with the SEC. A consolidated amended complaint was
filed by the plaintiff on December 21, 2010, and the Company's
motion to dismiss was filed on February 25, 2011, as were similar
motions filed by the individual defendants. Briefing on those
motions concluded on May 24, 2011, and a ruling on the pending
motion to dismiss is expected between August and October 2011.
The Company intends to vigorously defend itself against these
claims. This securities litigation is at an early stage and, at
this time, it is not possible to predict its outcome, the Company
relates. Therefore, the Company has not accrued any charges
related to the litigation.
Northwest Pipe Company -- http://www.nwpipe.com/-- is a North
American manufacturer of large-diameter, high-pressure steel
pipeline systems for use in water infrastructure applications,
primarily related to drinking water systems. The Company also
manufactures other welded steel pipe products for use in a wide
range of applications, including energy, construction,
agriculture, and industrial systems. The Company's pipeline
systems are also used for hydroelectric power systems, wastewater
systems and other applications, and the Company makes products for
industrial plant piping systems and certain structural
applications.
OCWEN FINANCIAL: Obtains Final Approval of Class Suit Settlement
----------------------------------------------------------------
Ocwen Financial Corporation obtained in July 2011 final approval
of its class settlement of a consolidated lawsuit over its
mortgage servicing practices, according to the Company's August 4,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
Since April 2004, Ocwen has been included as a defendant in
litigation in federal court in Chicago which consolidated certain
class actions and individual actions brought by borrowers in
various federal and state courts challenging the defendants'
mortgage servicing practices, including charging improper or
unnecessary fees, misapplying borrower payments and similar
allegations (the MDL Proceeding). Ocwen believes the allegations
in the MDL Proceeding are without merit and have defended against
them vigorously. In the interests of obtaining finality and cost
certainty with regard to this complex and protracted litigated
matter, however, defendants, including Ocwen, have entered into a
definitive written agreement with plaintiffs' counsel with respect
to a class settlement. Ocwen's portion of the proposed settlement
payment is $5,163,000 plus certain other non-cash consideration
and administrative costs. On July 1, 2011, the Court granted final
approval to this class settlement. Defendants, including Ocwen,
have paid their respective portions of the settlement into escrow
and notice of the settlement has been provided to potential class
members. The settlement is subject to potential opt outs and/or
appeals by individual plaintiffs. In either or both events, the
Company will continue to vigorously defend such matters.
OKLAHOMA: Judge Delays DHS Class Action Trial Until February 2012
-----------------------------------------------------------------
David Harper, writing for Tulsa World, reports that a Tulsa
federal judge has delayed by more than four months the trial in a
class-action lawsuit that seeks changes in the state's foster-care
system.
U.S. District Judge Gregory Frizzell moved the nonjury trial from
Oct. 17 to Feb. 21, citing the scheduling challenges of
accommodating a four-week trial on his docket.
Mr. Frizzell had set the trial for Oct. 17 more than a year ago
but mentioned during a July 2010 hearing that it "may be a bit
ambitious" in light of the scope of the case.
The pretrial discovery process has often been contentious, but the
parties were on pace to be ready for trial in October.
The lawsuit was filed against various Oklahoma Department of Human
Services officials in February 2008 by Children's Rights, a
national child-advocacy group in New York, and five law firms.
The original plaintiffs were nine children who allegedly had
suffered in DHS placements. The case has since become a class-
action lawsuit with thousands of children in DHS custody as
plaintiffs.
The plaintiffs seek improvements in areas such as caseloads for
DHS workers and supervisors; education and training for agency
employees, foster parents and adoptive parents; and monitoring of
the safety of children in state custody.
Children's Rights Executive Director Marcia Robinson Lowry
released a statement on Aug. 9, saying: "Of course we are
disappointed in the delay in the trial date and were ready to
proceed in October. But we will proceed to trial with proof that
the state has been violating the constitutional rights of abused
and neglected children just as soon as the court is able to hear
this case."
DHS Communications Director Sheree Powell said the agency also
would have been ready for trial in October. More than 5 million
individual pages have been involved in the pretrial discovery
process, she noted.
ORMAT TECHNOLOGIES: Certification Motion Pending in Nevada Suit
---------------------------------------------------------------
A motion for class certification is currently pending in the
consolidated securities lawsuit against Ormat Technologies, Inc.,
filed in Nevada, according to the Company's August 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Following the Company's public announcement that it would restate
certain of its financial results due to a change in the Company's
accounting treatment for certain exploration and development
costs, three securities class action lawsuits were filed in the
United States District Court for the District of Nevada on
March 9, 2010, March 18, 2010 and April 7, 2010. These complaints
assert claims against the Company and certain officers and
directors for alleged violation of Sections 10(b) and 20(a) of the
Securities Exchange Act of 1934, as amended (the Exchange Act).
One complaint also asserts claims for alleged violations of
Sections 11, 12(a)(2) and 15 of the Securities Act. All three
complaints allege claims on behalf of a putative class of
purchasers of Company common stock between May 6, 2008 or May 7,
2008 and February 23, 2010 or February 24, 2010. These three
lawsuits were consolidated by the court in an order issued on
June 3, 2010 and the court appointed three of the Company's
stockholders to serve as lead plaintiffs.
Lead plaintiffs filed a consolidated amended class action
complaint (CAC) on July 9, 2010 that asserts claims under Sections
10(b) and 20(a) of the Exchange Act on behalf of a putative class
of purchasers of Company common stock between May 7, 2008 and
February 24, 2010. The CAC alleges that certain of the Company's
public statements were false and misleading for failing to account
properly for the Company's exploration and development costs based
on the Company's announcement on February 24, 2010 that it was
going to restate certain of its financial results to change its
method of accounting for exploration and development costs in
certain respects. The CAC also alleges that certain of the
Company's statements concerning the North Brawley project were
false and misleading. The CAC seeks compensatory damages,
expenses, and such further relief as the court may deem proper.
The Company cannot make an estimate of the possible loss or range
of loss.
Defendants filed a motion to dismiss the CAC on August 13, 2010.
On March 3, 2011, the court granted in part and denied in part
defendants' motion to dismiss. The court dismissed plaintiffs'
allegations that on the Company's statements regarding the North
Brawley project were false or misleading, but did not dismiss
plaintiffs' allegations regarding the 2008 restatement. Defendants
answered the remaining allegations in the CAC regarding the
restatement on April 8, 2011 and the case has now entered the
discovery phase. On July 22, 2011, plaintiffs filed a motion to
certify the case as a class action on behalf of a class of
purchasers of Company common stock between February 25, 2009 and
February 24, 2010.
The Company does not believe that these lawsuits have merit and is
defending the actions vigorously.
PHILIPS LIGHTING: Recalls 1.86-MM Dimmable Reflector Flood Lamps
----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Philips Lighting Company of Somerset, New Jersey, announced a
voluntary recall of about 1.86 million units of EnergySaver, also
known as Marathon or Marathon Classic, Compact Fluorescent
dimmable reflector lamps. Consumers should stop using recalled
products immediately unless otherwise instructed. It is illegal
to resell or attempt to resell a recalled consumer product.
The glue that attaches the glass outer envelope or globe to the
body of the lamp can fail allowing the glass outer envelope to
fall and strike persons and objects below, posing a laceration
hazard to consumers.
Philips has received 700 reports of lamps where the glue failed
and the glass outer envelope fell, including two reports of minor
injury and three reports of minor property damage.
This recall involves Philips EnergySaver also known as Marathon
and Marathon Classic Compact Fluorescent dimmable reflector lamps,
models R30, R40 and PAR 38 manufactured between March 2007 and May
2010. These are the model numbers and Universal Product Code
(UPC) numbers of the lamps included in this recall:
Product Description Model Number UPC
------------------- ------------ ---
EnergySaver (a/k/a Marathon EL/A R30 Dim 16w 46677 13 7076
or Marathon Classic) and 46677 15
Dimmable R30 Reflector Flood 0419
EnergySaver (a/k/a Marathon EL/A R40 Dim 20w 46677 13 7083
or Marathon Classic) and 46677 15
Dimmable R40 Reflector Flood 0426
EnergySaver (a/k/a Marathon EL/A Par38 Dim 20w 46677 14 6443
or Marathon Classic) and 46677 15
Dimmable Par38 Reflector Flood 0433
Model numbers are printed on the white ceramic area at the base of
the lamps. For boxed products, the UPC number is on the bottom of
the box. For products in blister cards, the UPC is at the top
right corner of the back of the package.
The affected products also have dates codes from March 2007
through May 2010:
Date Code on Product Month and Date of Production
-------------------- ----------------------------
C7 to M7 March to December 2007
A8 to M8 January to December 2008
A9 to D9 January to April 2009
0916 to 0953 April to December 2009
1001 to 1022 January to May 2010
Date codes are located on the lamps themselves, either stamped
into the metal gold base of the lamp or in the white ceramic area
with other product information.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11302.html
The recalled products were manufactured in Mexico and Poland, and
sold at grocery and home center stores nationwide, online
retailers, and professional electrical distributors from March
2007 through July 2011, for between $11 and $24.
Consumers should immediately stop using the recalled lamps and
contact Philips to receive instructions on how to receive a free
replacement lamp. For additional information, contact Philips
toll-free at (866) 622-6372 between 9:00 a.m. and 5:00 p.m.
Eastern Time Monday through Friday or visit the company's Web site
at http://www.recall.philips.com/en_us.html/
PITNEY BOWES: Awaits Decision on Plea to Dismiss NECA-IBEW Suit
---------------------------------------------------------------
Pitney Bowes Inc. is still awaiting a court decision on its motion
to dismiss the lawsuit commenced by NECA-IBEW Health & Welfare
Fund, according to the Company's August 5, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2011.
On October 28, 2009, the Company and certain of its current and
former officers were named as defendants in NECA-IBEW Health &
Welfare Fund v. Pitney Bowes Inc. et al., a class action lawsuit
filed in the U.S. District Court for the District of Connecticut.
The complaint asserts claims under the Securities Exchange Act of
1934 on behalf of those who purchased the common stock of the
company during the period between July 30, 2007, and October 29,
2007, alleging that the Company, in essence, missed two financial
projections. Plaintiffs filed an amended complaint on
September 20, 2010. On December 3, 2010, the Company moved to
dismiss the complaint. The parties have completed briefing on
this motion and the motion is now pending before the court. Based
upon the Company's current understanding of the facts and
applicable laws, the Company does not believe there is a
reasonable possibility that any loss has been incurred.
The Company expects to prevail in the legal action; however, as
litigation is inherently unpredictable, there can be no assurance
in this regard. If the plaintiffs do prevail, the results may
have a material effect on the Company's financial position, future
results of operations or cash flows, including, for example, its
ability to offer certain types of goods or services in the future.
PITNEY BOWES: Still Awaits Order on Plea to Dismiss Suit vs. Unit
-----------------------------------------------------------------
Pitney Bowes Inc. is still awaiting a court decision on a motion
to dismiss lawsuits against its subsidiary, Imagitas, Inc.,
according to the Company's August 5, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
The Company's wholly-owned subsidiary, Imagitas, Inc., is a
defendant in several purported class actions. These lawsuits were
originally filed in six different states and later coordinated in
the U.S. District Court for the Middle District of Florida, In re:
Imagitas, Driver's Privacy Protection Act Litigation (Coordinated,
May 28, 2007). Each of these lawsuits alleges that the Imagitas
DriverSource program violated the federal Drivers Privacy
Protection Act (DPPA). Under the DriverSource program, Imagitas
entered into contracts with state governments to mail out
automobile registration renewal materials along with third party
advertisements, without revealing the personal information of any
state resident to any advertiser. The DriverSource program
assisted the state in performing its governmental function of
delivering these mailings and funding the costs of them. The
plaintiffs in these actions were seeking statutory damages under
the DPPA. On December 21, 2009, the Eleventh Circuit Court
affirmed the District Court's summary judgment decision in Rine,
et al. v. Imagitas, Inc. (U.S. District Court, Middle District of
Florida, filed August 1, 2006), which ruled in Imagitas' favor and
dismissed that litigation. That decision is now final, with no
further appeals available. With respect to the remaining state
cases, Imagitas filed its motion to dismiss these cases on
October 8, 2010. Plaintiff's opposition brief was filed on
December 6, 2010, and Imagitas filed its reply brief on
December 22, 2010. Although the plaintiffs are still contending
that the cases filed in Massachusetts, Ohio and Missouri can
proceed, they have admitted in their response that the reasoning
in the Rine decision does require that actions based on Minnesota
and New York laws be dismissed. The Company is awaiting a
decision by the District Court on the motion to dismiss. Based
upon the Company's current understanding of the facts and
applicable laws, the Company does not believe there is a
reasonable possibility that any loss has been incurred.
The Company expects to prevail in the legal action; however, as
litigation is inherently unpredictable, there can be no assurance
in this regard. If the plaintiffs do prevail, the results may
have a material effect on the Company's financial position, future
results of operations or cash flows, including, for example, its
ability to offer certain types of goods or services in the future.
RADIANT SYSTEMS: Court Consolidates 3 Merger-Related Suits
----------------------------------------------------------
A Georgia state court consolidated three putative class action
lawsuits arising from Radiant Systems, Inc.'s proposed merger with
NCR Corporation, according to the Company's August 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
On July 11, 2011, the Company entered into an Agreement and Plan
of Merger with NCR Corporation, a Maryland corporation, and Ranger
Acquisition Corporation, a Georgia corporation and a wholly owned
subsidiary of NCR ("Merger Sub"). Pursuant to the Merger
Agreement, NCR agreed to cause Merger Sub to commence a tender
offer to purchase all of the outstanding shares of the Company's
Common Stock, no par value per share, for $28.00 per share, net to
the seller in cash, without interest and subject to applicable
withholding taxes.
Subsequent to the announcement of the Tender Offer and the Merger,
three putative class actions were filed challenging the proposed
transaction: (i) Jay Phelps v. Radiant Systems, Inc., et. al.
(Case No. 2011CV203328), filed on July 14, 2011, in the Superior
Court of Fulton County, Georgia; (ii) City of Worcester Retirement
System v. Radiant Systems, Inc., et. al. (Case No. 2011CV203297),
filed on July 15, 2011, in the Superior Court of Fulton Country,
Georgia; and (iii) Oakland County Employees' Retirement System v.
Radiant Systems, Inc. et. al. (Case No. 2011CV203324), filed on
July 18, 2011, in the Superior Court of Fulton County, Georgia.
All three complaints named the Company, the members of the board
of directors, and NCR Corporation as defendants. All three
actions were brought by purported shareholders of the Company,
both individually and on behalf of a putative class of
shareholders of the Company, alleging that the Board breached its
fiduciary duties in connection with the Offer and Merger by
purportedly failing to maximize shareholders value, and that the
Company and NCR Corporation aided and abetted the alleged
breaches. All three actions were transferred to the Court's
Business Case Division.
On July 27, 2011, the plaintiffs in the three actions jointly
filed an amended complaint (the "Amended Complaint"). The Amended
Complaint adds allegations that the Company's
Solicitation/Recommendation Statement on Schedule 14D-9 filed with
the SEC on July 25, 2011, contains materially misleading
statements and omits material information. The Amended Complaint
seeks equitable relief, including an injunction blocking
consummation of the Offer and the Merger. The Amended Complaint
also seeks compensatory damages in the event the Merger is
consummated. On July 27, 2011, the plaintiffs also jointly filed
a motion seeking to expedite discovery in anticipation of a
forthcoming motion for a preliminary injunction blocking the
defendants from proceeding with the Tender Offer and the Merger.
On July 29, 2011, the Court consolidated the three actions.
The Company believes the allegations contained in the Amended
Complaint are without merit and intends to vigorously defend
against them, including opposing the motion for expedited
discovery and any motion for a preliminary injunction that may be
filed. There can be no assurance, however, that the Company will
be successful in its defense.
SATCON TECHNOLOGY: Holzer Holzer & Fistel Files Class Action
------------------------------------------------------------
Holzer Holzer & Fistel, LLC disclosed that it has filed a class
action lawsuit in the United States District Court for the
District of Massachusetts on behalf of purchasers of Satcon
Technology Corporation common stock who purchased shares between
March 4, 2010 and July 5, 2011, inclusive. Specifically, the
lawsuit alleges that, among other things, the Company: (1) knew
but failed to disclose that it was experiencing a decrease in
sales of its inverter systems; (2) knew but failed to disclose
that it was not performing up to internal standards in the
European market; and (3) failed to properly account for its
inventory.
If you purchased Satcon common stock during the Class Period, you
have the legal right to petition the Court to be appointed a "lead
plaintiff." A lead plaintiff is a representative party that acts
on behalf of other class members in directing the litigation. Any
such request must satisfy certain criteria and be made no later
than September 19, 2011. Any member of the purported class may
move the Court to serve as lead plaintiff through counsel of their
choice, or may choose to do nothing and remain an absent class
member. If you are a Satcon investor and would like to discuss a
potential lead plaintiff appointment, or your rights and interests
with respect to the lawsuit, you may contact Michael I. Fistel,
Jr., Esq., or Marshall P. Dees, Esq. via e-mail at
mfistel@holzerlaw.com or mdees@holzerlaw.com or via toll-free
telephone at (888) 508-6832.
Holzer Holzer & Fistel, LLC -- http://www.holzerlaw.com-- is an
Atlanta, Georgia law firm that dedicates its practice to vigorous
representation of shareholders and investors in litigation
nationwide, including shareholder class action and derivative
litigation.
SONY: Aware of Data Breach Risk, Playstation Class Action Claims
----------------------------------------------------------------
Michelle Keahey, writing for The Louisiana Record, reports that a
class action against Sony over a data breach of its PlayStation
Network accuses the company of knowing its customers' data and
personal information was at risk for theft and the company did
nothing to protect it, including failing to put up a firewall.
Demario J. Griffin and Christopher D. Becnel, on behalf of
themselves and all others similarly situated, filed the lawsuit
against Sony Corp. of America Inc., Sony Corp. Entertainment of
America LLC, Sony Pictures Entertainment Inc. and Sony Network
Entertainment International LLC on Aug. 5 in federal court in New
Orleans.
The data breach occurred on April 16, and allegedly affected 77
million user accounts, the suit claims. The alleged stolen data
includes customer names, mailing addresses, e-mail addresses,
birth dates, credit card numbers, expiration dates, online network
passwords, login credentials and other personal information.
The plaintiffs' lawyers, which includes Daniel Becnel, Jr., accuse
Sony of knowing that it had inadequate security measures in place
to protect its customers' personal information.
It is not clear what his relationship is to a lead plaintiff in
the case.
Sony is accused of not installing a firewall on the PlayStation
and SPE Networks, unless a particular user attempted to gain
unauthorized access, the lawsuit states.
Furthermore, Sony is accused of delaying the disclosure of the
security breach until April 26, at least four days after it became
aware of the massive breach. The plaintiffs argue that this
prevented customers from taking prompt steps to secure their
personal information to prevent identity theft and other financial
crimes.
The lawsuit alleges the security breach is tied to a 2010 lawsuit
Sony initiated against a teenage gamer for copyright infringement.
George Hotz, at the age of 19, successfully modified his
PlayStation 3 to allow him to use it with other operating systems.
After he publically disclosed what he did, Sony sued him. In
response to the copyright lawsuit, a hacker referred to as
"Anonymous" publicly stated that it planned to attack the
PlayStation Network and, within two weeks, the massive data breach
occurred.
The proposed class action will include all U.S. persons who were
active subscribers to the PlayStation Network or Qriocity service
on April 16 to 17, 2011, or SPE's Network on or about June 3,
2011.
Sony is accused of violating the Federal Electronic Communications
Privacy Act, negligence breach of contract and breach of fiduciary
duty.
The plaintiffs are asking the Court for an Order stopping the
defendants from further fraudulent business practices, for an
award of damages in the amount of money they paid for their
PlayStation equipment and network, restitution, credit monitoring
service, exemplary damages, interest and attorney's fees.
The plaintiffs are also represented by Matthew B. Moreland and
Jennifer L. Crose of Becnel Law Firm in Reserve. A jury trial is
requested.
U.S. District Judge Kurt D. Engelhardt is assigned to the case.
Case No. 2:11-cv-01885
SOUTHERN COPPER: Awaits Ruling in Suit Over Minera Mexico Merger
----------------------------------------------------------------
Southern Copper Corporation is awaiting a court ruling in a
consolidated derivative class complaint over the Company's merger
transaction with Minera Mexico, S.A. de C.V., according to the
Company's August 8, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Corporation for the quarter ended June 30,
2011.
Three purported class action derivative lawsuits were filed in the
Delaware Court of Chancery (New Castle County) late in December
2004 and early January 2005 relating to the proposed merger
transaction between the Company and Minera Mexico, S.A. de C.V.,
which was completed effective April 1, 2005. On January 31, 2005,
the three actions -- Lemon Bay, LLP v. American Mining-
Corporation, et al., Civil Action No. 961-N; Therault Trust v.
Luis Palomino Bonilla, et al., and Southern Peru Copper
Corporation et al., Civil Action No. 969-N; and James Sousa v.
Southern Peru Copper Corporation, et al., Civil Action No. 978-N
-- were consolidated into one action, captioned In re Southern
Peru Copper Corporation Shareholder Derivative Litigation, Consol.
Civil Action No. 961-N; the complaint filed by Lemon Bay was
designated as the operative complaint in the consolidated lawsuit.
The consolidated action purports to be brought on behalf of the
Company and its common stockholders; the defendants in the
consolidated action are AMC, German Larrea Mota-Velasco, Genaro
Larrea Mota-Velasco, Oscar Gonzalez Rocha, Emilio Carrillo Gamboa,
Jaime Fernando Collazo Gonzalez, Xavier Garcia de Quevedo Topete,
Armando Ortega Gomez and Juan Rebolledo Gout (together, the "AMC
Defendants"), Carlos Ruiz Sacristan, Harold S. Handelsman,
Gilberto Perezalonso Cifuentes, and Luis Miguel Palomino Bonilla
(together, the "Special Committee Defendants"). The consolidated
complaint alleges, among other things, that the Transaction was
the result of breaches of fiduciary duties by the Company's
directors and was not entirely fair to the Company and its
minority stockholders. Fact discovery closed in early 2010 and
expert discovery closed on June 18, 2010. On June 30, 2010, the
plaintiff moved for partial summary judgment. On August 10, 2010,
the AMC Defendants and the Special Committee Defendants filed
separate cross-motions for summary judgment. On December 21,
2010, the Court denied the plaintiff's motion and the AMC
Defendants' cross-motion, but granted the Special Committee
Defendants' motion, dismissing the Special Committee Defendants
from the action. A four-day trial was held on June 21 to 24,
2011. Post-trial argument took place on July 12, 2011. A decision
by the Court is pending.
Plaintiff seeks, among other things, an award of damages to the
Company's stockholders, and such other relief that the court deems
equitable, including interest, attorneys' and experts' fees and
costs. The defendants believe that the lawsuit is without merit
and are vigorously defending against the action.
Southern Copper Corporation -- http://www.southernperu.com/-- is
a copper mining company with principal operations in Peru and
Mexico. The Company also has an active ongoing exploration
program in Chile and in 2011, it has started exploration
activities in Argentina. In addition to copper, the Company
produces significant amounts of other metals, either as a
by-product of the copper process or in a number of dedicated
mining facilities in Mexico.
SOUTHERN COPPER: Awaits Order on Plea to Consolidate "AMC" Suits
----------------------------------------------------------------
Southern Copper Corporation continues to await a ruling on motions
and cross-motions to consolidate derivative class action lawsuits
relating to the proposed combination of the Company with Americas
Mining Corporation, according to the Company's August 8, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
Four purported class action derivative lawsuits have been filed in
the Delaware Court of Chancery (Oklahoma Firefighters Pension &
Retirement System et al. v. SCC et al.; Gary Martin et al. v. SCC
et al.; Thomas Griffin et al. v. SCC et al.; and Sheet Metal
Workers Pension Plan of Northern California et al. v. SCC et al.)
from August 2010 to October 2010 relating to the proposed
combination of the Company with Americas Mining Corporation, the
parent company of Asarco. The complaints name SCC, its current
and certain former directors, AMC and Grupo Mexico as defendants.
Two of the actions also name Asarco as a defendant. The actions
purport to be brought on behalf of the Company's common
stockholders. A previously reported complaint filed in the
Superior Court of Arizona, City of North Miami Beach Police
Officers' and Firefighters' Retirement Plan et al. v. SCC et al.,
has been voluntarily dismissed.
The complaints allege, among other things, that the proposed
transaction would result in breaches of fiduciary duties by the
defendants and is not entirely fair to the Company and its
minority stockholders. The complaints seek, among other things, a
preliminary and permanent injunction to enjoin the transaction,
the award of damages to the plaintiffs and the class, and such
other relief that the court deems equitable, including interest,
attorneys' and experts' fees and costs. On January 25, 2011, the
Oklahoma Firefighters and Sheet Metal Workers plaintiffs filed an
amended and joint motion to consolidate and have Firefighters'
counsel appointed lead counsel. Plaintiffs also moved to stay the
Martin and Griffin actions. The Sheet Metal plaintiffs have
withdrawn their prior motion to consolidate in connection with the
new motion. Oral argument on all plaintiffs' motions and cross-
motions to stay or consolidate and appoint lead counsel is
pending.
The Firefighters' plaintiffs also moved for leave to file an
amended complaint to add or supplement factual allegations
concerning the summary judgment ruling in the action, Lemon Bay,
LLP v. American Mining-Corporation, et al., Civil Action No. 961-
N. On April 1, 2011, the plaintiffs' motion was granted.
The defendants believe that these lawsuits are without merit and
are vigorously defending against the actions.
Southern Copper Corporation -- http://www.southernperu.com/-- is
a copper mining company with principal operations in Peru and
Mexico. The Company also has an active ongoing exploration
program in Chile and in 2011, it has started exploration
activities in Argentina. In addition to copper, the Company
produces significant amounts of other metals, either as a
by-product of the copper process or in a number of dedicated
mining facilities in Mexico.
SOUTHWEST AIR: Sued for Illegally Collecting Taxes on Tickets
-------------------------------------------------------------
Courthouse News Service reports that a state class action claims
Southwest Airlines illegally collected federal taxes on tickets
during the recent congressional fiasco over Federal Aviation
Administration funding.
A copy of the Complaint in Flecher v. Southwest Airlines Co.,
Case No. L-1334-11 (N.J. Super. Ct., Gloucester Cty.), is
available at:
http://www.courthousenews.com/2011/08/11/SWAir.pdf
The Plaintiff is represented by:
Lewis G. Adler, Esq.
26 Newton Avenue
Woodbury, NJ 08096
Telephone: (856) 846-1968
SPIRIT AEROSYSTEMS: Continues to Defend Age Discrimination Suit
---------------------------------------------------------------
Spirit AeroSystems Holdings, Inc.'s subsidiary continues to defend
itself from a lawsuit alleging age discrimination, according to
the Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In December 2005, a lawsuit was filed against the Company's
subsidiary, Spirit AeroSystems, Inc., Onex Corporation, and The
Boeing Company alleging age discrimination in the hiring of
employees by Spirit when Boeing sold its Wichita commercial
division to Onex. The complaint was filed in U.S. District Court
in Wichita, Kansas and seeks class-action status, an unspecified
amount of compensatory damages and more than $1.5 billion in
punitive damages. The asset purchase agreement from the Boeing
Acquisition requires Spirit to indemnify Boeing for damages
resulting from the employment decisions that were made by the
Company with respect to former employees of Boeing Wichita, which
relate or allegedly relate to the involvement of, or consultation
with, employees of Boeing in such employment decisions. On
June 30, 2010, the U.S. District Court granted defendants'
dispositive motions, finding that the case should not be allowed
to proceed as a class action.
On July 11, 2011, the District Court granted a request to allow
plaintiffs to appeal several of the District Court's previous
rulings to the Tenth Circuit Court of Appeals, which could reverse
the District's Court's June 30, 2010 ruling. The Company intends
to continue to vigorously defend itself in this matter. Management
believes the resolution of this matter will not materially affect
the Company's financial position, results of operations or
liquidity.
SPIRIT AEROSYSTEMS: Continues to Defend ERISA Class Suit in Kansas
------------------------------------------------------------------
Spirit AeroSystems Holdings, Inc., continues to defend itself
against a class action lawsuit alleging violations of the Employee
Retirement Income Security Act, according to the Company's
August 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
On February 16, 2007, an action entitled Harkness et al. v. The
Boeing Company et al. was filed in the U.S. District Court for the
District of Kansas. The defendants were served in early July 2007.
The defendants include Spirit AeroSystems Holdings, Inc., Spirit
AeroSystems, Inc., the Spirit AeroSystems Holdings Inc. Retirement
Plan for the International Brotherhood of Electrical Workers
(IBEW), Wichita Engineering Unit (SPEEA WEU) and Wichita Technical
and Professional Unit (SPEEA WTPU) Employees, and the Spirit
AeroSystems Retirement Plan for International Association of
Machinists and Aerospace Workers (IAM) Employees, along with
Boeing and Boeing retirement and health plan entities. The named
plaintiffs are twelve former Boeing employees, eight of whom were
or are employees of Spirit. The plaintiffs assert several claims
under the Employee Retirement Income Security Act and general
contract law and brought the case as a class action on behalf of
similarly situated individuals. The putative class consists of
approximately 2,500 current or former employees of Spirit. The
parties agreed to class certification and are currently in the
discovery process. The sub-class members who have asserted claims
against the Spirit entities are those individuals who, as of June
2005, were employed by Boeing in Wichita, Kansas, were
participants in the Boeing pension plan, had at least 10 years of
vesting service in the Boeing plan, were in jobs represented by a
union, were between the ages of 49 and 55, and who went to work
for Spirit on or about June 17, 2005. Although there are many
claims in the suit, the plaintiffs' claims against the Spirit
entities, asserted under various theories, are (1) that the Spirit
plans wrongfully failed to determine that certain plaintiffs are
entitled to early retirement "bridging rights" to pension and
retiree medical benefits that were allegedly triggered by their
separation from employment by Boeing and (2) that the plaintiffs'
pension benefits were unlawfully transferred from Boeing to Spirit
in that their claimed early retirement "bridging rights" are not
being afforded these individuals as a result of their separation
from Boeing, thereby decreasing their benefits. The plaintiffs
seek a declaration that they are entitled to the early retirement
pension benefits and retiree medical benefits, an injunction
ordering that the defendants provide the benefits, damages
pursuant to breach of contract claims and attorney fees. Boeing
has notified Spirit that it believes it is entitled to
indemnification from Spirit for any "indemnifiable damages" it may
incur in the Harkness litigation, under the terms of the asset
purchase agreement from the Boeing Acquisition between Boeing and
Spirit. Spirit disputes Boeing's position on indemnity. Management
believes the resolution of this matter will not materially affect
the Company's financial position, results of operations or
liquidity.
STATE STREET: Continues to Defend "Deceptive Practice" Suit
-----------------------------------------------------------
State Street Corporation continues to defend itself from a
putative class action alleging that the rates at which its
subsidiary bank executed foreign currency trades constituted an
unfair and deceptive act, according to the Company's August 5,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
Two clients have commenced litigation against the Company,
including a putative class action filed in February 2011 in
federal court in Boston that seeks unspecified damages, including
treble damages, on behalf of all custodial clients that executed
foreign exchange transactions through State Street. The putative
class action alleges, among other things, that the rates at which
State Street executed foreign currency trades constituted an
unfair and deceptive practice and a breach of the duty of loyalty.
State Street Corporation is the parent company of State Street
Bank and Trust Company, or State Street Bank.
STATE STREET: Continues to Defend Shareholder-Related Suits
-----------------------------------------------------------
State Street Corporation continues to defend itself in three
shareholder-related class action lawsuits before a federal court
in Massachusetts, according to the Company's August 5, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
Three shareholder-related class action complaints are currently
pending in federal court in Boston. One complaint purports to be
brought on behalf of State Street shareholders. The two other
complaints purport to be brought on behalf of participants and
beneficiaries in the State Street Salary Savings Program who
invested in the program's State Street common stock investment
option. The complaints variously allege violations of the federal
securities laws and ERISA in connection with the Company's foreign
exchange trading business, its investment securities portfolio and
its asset-backed commercial paper conduit program.
State Street Corporation is the parent company of State Street
Bank and Trust Company, or State Street Bank.
SUN HEALTHCARE: Unit Awaits Court Okay of Class Suit Settlement
---------------------------------------------------------------
In September 2010, a lawsuit was filed by a former employee of a
subsidiary of Sun Healthcare Group, Inc.'S medical staffing
company, alleging violation of various wage and hour provisions of
the California Labor Code. The Company denies all of the
allegations in the employee's complaint. The lawsuit, which was
filed as a purported class action on behalf of the former employee
and all those similarly situated, has been settled. The terms of
the settlement are confidential pending court approval. The
Company believes its reserves are adequate for this matter.
No further updates were reported in Sun Healthcare's August 4,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
TEXAS ROADHOUSE: Continues to Defend "Crenshaw" Suit in Mass.
-------------------------------------------------------------
Texas Roadhouse, Inc., continues to defend itself against a class
action lawsuit pending in Massachusetts over pooled tips,
according to the Company's August 5, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 28, 2011.
On January 19, 2011, a civil case styled as a class action
complaint titled Jenna Crenshaw, Andrew Brickley, et al, and all
others similarly situated v. Texas Roadhouse, Inc., Texas
Roadhouse Holdings, LLC, Texas Roadhouse of Everett, LLC and Texas
Roadhouse Management Corp., d/b/a Texas Roadhouse ("Crenshaw"),
Superior Court Civil Action Number 11-0157, was filed against the
Company in Middlesex County, Massachusetts. The complaint was
subsequently amended to add additional plaintiffs, all of whom
have alleged a failure to comply with Massachusetts labor laws,
specifically that the Company improperly shared pooled tips with
ineligible employees. The complaint alleges violations in all of
the Company's restaurants in Massachusetts. Currently, the Company
operates nine restaurants in the state. The Company has removed
the case to federal court, filed an answer denying all material
allegations and are in the early phases of discovery.
TRANSATLANTIC HOLDINGS: Continues to Defend Merger-Related Suits
----------------------------------------------------------------
Transatlantic Holdings, Inc., continues to defend itself against
class action lawsuits pending in New York and Delaware challenging
its proposed merger with Allied World Assurance Company Holdings,
AG, according to the Company's August 5, 2011, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2011.
On June 12, 2011, Allied World Assurance Company Holdings, AG, and
the Company agreed to a "merger of equals" business combination of
the two companies pursuant to the terms of an Agreement and Plan
of Merger, dated as of June 12, 2011, between Allied World, the
Company and GO Sub, LLC, a wholly-owned subsidiary of Allied
World. Pursuant to the terms of the Allied World Merger
Agreement, GO Sub, LLC will merge with and into the Company (the
"Merger"), with the Company surviving as a wholly-owned subsidiary
of Allied World. Upon completion of the Merger, Allied World will
be the parent company of the Company and Allied World's name will
be changed to "TransAllied Group Holdings, AG." Pursuant to the
terms and conditions of the Allied World Merger Agreement,
stockholders of the Company will be entitled to receive 0.88
common shares of Allied World for each share of the Company's
common stock (and cash in lieu of any fractional shares) (the
"Exchange Ratio").
In connection with the Merger, five putative stockholder class
action lawsuits have been filed against the Company and the
members of the Company's Board of Directors (the "Board")
challenging the Merger. Each lawsuit names the Company, the
members of the Board, and Allied World as defendants. Four of the
lawsuits also name the Allied World subsidiary, GO Sub, LLC, as a
defendant, and one of the lawsuits names a former director of the
Company as a defendant. Each of the lawsuits asserts that the
members of the Board breached a fiduciary duty in connection with
the approval of the Merger and that Allied World and its
subsidiaries aided and abetted the alleged breaches of a fiduciary
duty. One lawsuit also alleges that the Company aided and abetted
its directors' alleged breach of a fiduciary duty. The lawsuits
seek to enjoin the Merger, among other relief.
On June 29, 2011, defendants moved to dismiss or stay the three
New York actions in favor of the virtually identical proceedings
pending in the Delaware Court of Chancery. On July 25, 2011, the
plaintiffs in the three New York actions moved to consolidate
those actions into a single action. The court has not ruled on
either of these motions.
On July 21, 2011, Vice Chancellor Parsons of the Court of Chancery
of the State of Delaware entered an order consolidating the two
Delaware actions. Under that order, the Delaware plaintiffs filed
a consolidated amended complaint on August 1, 2011. Additionally,
on August 1, 2011, the Delaware plaintiffs filed a motion to
expedite proceedings and a motion for a preliminary injunction,
both of which the Company intends to oppose at the appropriate
time.
The Company and the Board believe these lawsuits are without merit
and intend to defend against them vigorously.
TYSON FOODS: Remains a Defendant in "Thompson" Suit
---------------------------------------------------
On October 23, 2001, a putative class action lawsuit styled R.
Lynn Thompson, et al. vs. Tyson Foods, Inc., was filed in the
District Court for Mayes County, Oklahoma by three property owners
on behalf of all owners of lakefront property on Grand Lake O' the
Cherokees. Simmons Foods, Inc. and Peterson Farms, Inc. also are
defendants. The plaintiffs allege the defendants' operations
diminished the water quality in the lake thereby interfering with
the plaintiffs' use and enjoyment of their properties. The
plaintiffs sought injunctive relief and an unspecified amount of
compensatory damages, punitive damages, attorneys' fees and costs.
While the District Court certified a class, on October 4, 2005,
the Court of Civil Appeals of the State of Oklahoma reversed,
holding the plaintiffs' claims were not suitable for disposition
as a class action. This decision was upheld by the Oklahoma
Supreme Court and the case was remanded to the District Court with
instructions that the matter proceed only on behalf of the three
named plaintiffs. Plaintiffs seek injunctive relief, restitution
and compensatory and punitive damages in an unspecified amount in
excess of $10,000.
The Company and the other defendants have denied liability and
asserted various defenses. The defendants have requested a trial
date, but the court has not yet scheduled the matter for trial.
No further updates were reported in the Company's August 8, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended July 2, 2011.
Tyson Foods, Inc. -- http://www.tyson.com/-- is a meat protein
company and a food production company with one of the most
recognized brand names in the food industry. The Company
produces, distributes and markets chicken, beef, pork, prepared
foods and related allied products.
TYSON FOODS: FLSA MDL Parties Continue to Work on Remaining Suits
-----------------------------------------------------------------
Parties to the consolidated lawsuit, In re Tyson Foods, Inc., Fair
Labor Standards Act Litigation (MDL Proceedings), continue to work
to negotiate settlement in the remaining lawsuits, according to
Tyson Foods' August 8, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended July 2,
2011.
Several private lawsuits are pending against Tyson Foods, Inc.,
alleging that the Company failed to compensate poultry plant
employees for all hours worked, including overtime compensation,
in violation of the Federal Labor Standards Act (FLSA). These
lawsuits include DeAsencio v. Tyson Foods, Inc., filed on
August 22, 2000, in the U.S. District Court for the Eastern
District of Pennsylvania. This matter involves similar
allegations that employees should be paid for the time it takes to
engage in pre- and post-shift activities such as changing into and
out of protective and sanitary clothing, obtaining clothing and
walking to and from the changing area, work areas and break areas.
They seek back wages, liquidated damages, pre- and post-judgment
interest, and attorneys' fees. Plaintiffs appealed a jury verdict
and final judgment entered in the Company's favor on June 22,
2006, in the U.S. District Court for the Eastern District of
Pennsylvania. On September 7, 2007, the U.S. Court of Appeals for
the Third Circuit reversed the jury verdict and remanded the case
to the District Court for further proceedings. The Company sought
rehearing en banc, which was denied by the Court of Appeals on
October 5, 2007. The United States Supreme Court denied the
Company's petition for a writ of certiorari on June 9, 2008. The
new trial date has not been set.
The other private lawsuits referred to are Sheila Ackles, et al.
v. Tyson Foods, Inc. (N. Dist. Alabama, October 23, 2006);
McCluster, et al. v. Tyson Foods, Inc. (M. Dist. Georgia, December
11, 2006); Dobbins, et al. v. Tyson Chicken, Inc., et al. (N.D.
Alabama, December 21, 2006); Buchanan, et al. v. Tyson Chicken,
Inc., et al. and Potter, et al. v. Tyson Chicken, Inc., et al.
(N.D. Alabama, December 22, 2006); Jones, et al. v. Tyson Foods,
Inc., et al., Walton, et al. v. Tyson Foods, Inc., et al. and
Williams, et al. v. Tyson Foods, Inc., et al. (S.D. Mississippi,
February 9, 2007); Balch, et al. v. Tyson Foods, Inc. (E.D.
Oklahoma, March 1, 2007); Adams, et al. v. Tyson Foods, Inc. (W.D.
Arkansas, March 2, 2007); Atkins, et al. v. Tyson Foods, Inc.
(M.D. Georgia, March 5, 2007); Laney, et al. v. Tyson Foods, Inc.
and Williams, et al. v. Tyson Foods, Inc. (M.D. Georgia, May 23,
2007) (the Williams Case). Similar to DeAsencio, each of these
matters involves allegations that employees should be paid for the
time it takes to engage in pre- and post-shift activities such as
changing into and out of protective and sanitary clothing,
obtaining clothing and walking to and from the changing area, work
areas and break areas. The plaintiffs in each of these lawsuits
seek or have sought to act as class representatives on behalf of
all current and former employees who were allegedly not paid for
time worked and seek back wages, liquidated damages, pre- and
post-judgment interest, and attorneys' fees. On April 6, 2007, the
Company filed a motion for transfer of the actions for coordinated
pretrial proceedings before the Judicial Panel on Multidistrict
Litigation, which was granted on August 17, 2007. These cases and
five other cases subsequently filed involving the same
allegations, Armstrong, et al. v. Tyson Foods, Inc. (W.D.
Tennessee, January 30, 2008); Maldonado, et al. v. Tyson Foods,
Inc. (E.D. Tennessee, January 31, 2008); White, et al. v. Tyson
Foods, Inc. (E.D. Texas, February 1, 2008); Meyer, et al. v. Tyson
Foods, Inc. (W.D. Missouri, February 2, 2008); and Leak, et al. v.
Tyson Foods, Inc. (W.D. North Carolina, February 6, 2008), were
transferred to the U.S. District Court in the Middle District of
Georgia, In re: Tyson Foods, Inc., Fair Labor Standards Act
Litigation (MDL Proceedings). On January 2, 2008, the Court
issued a Joint Scheduling and Case Management Order. The order
granted Conditional Class Certification and called for notice to
be given to potential putative class members via a third party
administrator. The potential class members had until April 18,
2008, to "opt in" to the class. Approximately 13,800 employees
and former employees filed their consents to "opt-in" to the
class. On October 15, 2008, the Court denied the plaintiffs'
motion for equitable tolling, which, if granted, would have
extended the time period in which the plaintiffs could have sought
damages. However, in addition to the consents already obtained,
the Court allowed the plaintiffs to obtain corrected and
reaffirmed opt-in consents that were previously filed in the
matter of M.H. Fox, et al. v. Tyson Foods, Inc. (N.D. Alabama,
June 22, 1999). The deadline for filing these consents was
December 31, 2008, and according to the third party administrator,
approximately 4,000 reaffirmed consents were filed, some or all of
which may be in addition to the approximately 13,800 consents
filed previously. The parties have completed discovery at eight
of the Company's facilities and the Company's corporate
headquarters in Springdale, Arkansas. In July 2009, the Company
filed class decertification motions for the eight facilities
involved in discovery. The Company also filed Motions for Partial
Summary Judgment for these eight facilities. Oral arguments for
these motions occurred on February 3, 2010, and, on March 16,
2010, the Court granted partial summary judgment with respect to
two unionized facilities and denied the remaining motions. The
Court concluded that the activities at these two facilities met
the definition of "clothes changing" under Section 203(o) of the
FLSA and that the time engaged in pre- and post-shift donning and
doffing is not compensable. The Court did not rule on whether
Section 203(o) activity could begin the continuous work day,
thereby making all walking, sanitizing and washing time after that
activity compensable. The Company then filed a motion for
certification of a permissive appeal on whether Section 203(o)
activity can start the continuous workday and whether washing
required clothing items is covered by Section 203(o). On
April 23, 2010, the Court granted the Company permission to appeal
these issues to the Eleventh Circuit Court of Appeals. The Court
also retained jurisdiction with respect to the eight facilities
while staying proceedings with respect to seven. It then
scheduled trial in the Williams Case for October 12, 2010. On
April 16, 2010, the Court lifted a previously entered stay of
discovery with respect to the Company's remaining 32 facilities
subject to the MDL Proceedings and ordered the parties to meet,
confer, and report to the Court any discovery agreements and
disputed issues within 45 days. On June 7, 2010, the Court issued
a scheduling order which set the close of discovery for the
remaining 32 facilities for May 31, 2012. On September 22, 2010,
the Court granted the parties' joint motion to stay further
proceedings in the MDL Proceedings, including the trial in the
Williams case, in order to allow the parties an opportunity to
explore settlement. The plaintiffs subsequently filed a motion to
lift the stay, and the Court granted this motion on November 15,
2010. The parties have reached a settlement agreement for the
back pay liability (exclusive of attorneys' fees) in the Williams
case, which was set for trial on February 14, 2011. On
January 21, 2011, the parties notified the court of their
intention to file a motion for approval of the settlement
agreement and a motion to file the agreement under seal. As part
of the settlement, the parties also agreed to stay further MDL
proceedings to allow the parties to continue to explore settlement
of the remaining lawsuits. On July 29, 2011, the parties advised
the court they would like the stay to remain in place as they
continue to work on and make progress toward settlement of the
remaining lawsuits.
Tyson Foods, Inc. -- http://www.tyson.com/-- is a meat protein
company and a food production company with one of the most
recognized brand names in the food industry. The Company
produces, distributes and markets chicken, beef, pork, prepared
foods and related allied products.
TYSON FOODS: Awaits Ruling on Motion to Certify "Weissman" Lawsuit
------------------------------------------------------------------
Tyson Foods, Inc., continues to await a ruling on a motion to
certify a wage and hour class action complaint in Wisconsin,
according to the Company's August 8, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
July 2, 2011.
The Company has a pending one wage and hour action involving its
Tyson Prepared Foods plant located in Jefferson, Wisconsin
(Weissman, et al. v. Tyson Prepared Foods, Inc., Jefferson County
(Wisconsin) Circuit Court, October 20, 2010). The plaintiffs
allege that employees should be paid for the time it takes to
engage in pre- and post-shift activities such as changing into and
out of protective and sanitary clothing and the associated time it
takes to walk to and from their workstations post-donning and pre-
doffing of protective and sanitary clothing. Six named plaintiffs
seek to act as state law class representatives on behalf of all
current and former employees who were allegedly not paid for time
worked and seek back wages, liquidated damages, pre- and post-
judgment interest, and attorneys? fees and costs. On May 16,
2011, Plaintiffs filed a motion to certify a state law class of
all hourly employees who have worked at the Jefferson plant from
October 20, 2008, to the present.
Tyson Foods, Inc. -- http://www.tyson.com/-- is a meat protein
company and a food production company with one of the most
recognized brand names in the food industry. The Company
produces, distributes and markets chicken, beef, pork, prepared
foods and related allied products.
VALHI INC: Appeals in Lead Pigment Litigation Still Pending
-----------------------------------------------------------
Appeals from dismissal or summary judgment rulings in purported
class actions against lead pigmentation manufacturers, including
Valhi, Inc. are still pending, according to the Company's August
4, 2011 Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended June 30, 2011.
The Company's subsidiary NL Industries, Inc.'s former operations
included the manufacture of lead pigments for use in paint and
lead-based paint. NL, 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 NL is not a
defendant in these other cases, the outcome of these cases may
have an impact on cases that might be filed against NL in the
future.
The Company believes that these actions are without merit, and it
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 it is a party, and liability to it that may result, if
any, in this regard cannot be reasonably estimated, because:
-- NL 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 NL, and
-- NL has never ultimately been found liable with respect to any
such litigation matters.
Accordingly, the Company 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 the Company. The
Company cannot assure 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 our 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.
Valhi, Inc. is a holding company and operates through its wholly-
owned and majority-owned subsidiaries, including NL Industries,
Inc., Kronos Worldwide, Inc., CompX International Inc., Tremont
LLC and Waste Control Specialists LLC.
VENTAS INC: Continues to Defend NHP-Related Suits in Calif. & Md.
-----------------------------------------------------------------
Ventas, Inc., continues to defend itself against a number of
lawsuits pending in California and Maryland over its acquisition
of Nationwide Health Properties, Inc., according to the Company's
August 5, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended June 30, 2011.
In the weeks following the announcement of the Company's
acquisition of Nationwide Health Properties, Inc. ("NHP") on
February 28, 2011, purported stockholders of NHP filed seven
lawsuits against NHP and its directors. Six of these lawsuits
also named Ventas, Inc. as a defendant and five named the
Company's subsidiary, Needles Acquisition LLC, as a defendant.
The purported stockholder plaintiffs commenced these actions in
two jurisdictions: the Superior Court of the State of California,
Orange County (the "California State Court"); and the Circuit
Court for Baltimore City, Maryland (the "Maryland State Court").
All of these actions were brought as putative class actions, and
two also purport to assert derivative claims on behalf of NHP.
All of these stockholder complaints allege that NHP's directors
breached certain alleged duties to NHP's stockholders by approving
the merger agreement with the Company, and certain complaints
allege that NHP aided and abetted those breaches. Those complaints
that name Ventas, Inc. and Needles Acquisition LLC allege that the
Company aided and abetted the purported breaches of certain
alleged duties by NHP's directors. All of the complaints request
an injunction of the merger. Certain of the complaints also seek
damages.
In the California State Court, the following actions were filed
purportedly on behalf of NHP stockholders: on February 28, 2011, a
putative class action entitled Palma v. Nationwide Health
Properties, Inc., et al.; on March 3, 2011, a putative class
action entitled Barker v. Nationwide Health Properties, Inc., et
al.; and on March 3, 2011, a putative class action entitled Davis
v. Nationwide Health Properties, Inc., et al., which was
subsequently amended on March 11, 2011, under the caption Davids
v. Nationwide Health Properties, Inc., et al. Each action names
NHP and members of the NHP board of directors as defendants. The
Barker and Davids actions also name Ventas, Inc. as a defendant,
and the Davids action names Needles Acquisition LLC as a
defendant. Each complaint alleges, among other things, that NHP's
directors breached certain alleged duties by approving the merger
agreement between the Company and NHP because the proposed
transaction purportedly fails to maximize stockholder value and
provides the directors personal benefits not shared by NHP
stockholders, and the Barker and Davids actions allege that the
Company aided and abetted those purported breaches. Along with
other relief, the complaints seek an injunction against the
closing of the proposed merger. On April 4, 2011, the defendants
demurred and moved to stay the Palma, Barker, and Davids actions
in favor of the parallel litigation in the Maryland State Court.
On April 27, 2011, all three actions were consolidated pursuant to
a Stipulation and Proposed Order on Consolidation of Related
Actions signed by the parties on March 22, 2011. On May 12, 2011,
the California State Court granted the defendants' motion to stay.
In the Maryland State Court, the following actions were filed
purportedly on behalf of NHP stockholders: on March 7, 2011, a
putative class action entitled Crowley v. Nationwide Health
Properties, Inc., et al.; on March 10, 2011, a putative class
action entitled Taylor v. Nationwide Health Properties, Inc., et.
al.; on March 17, 2011, a putative class action entitled Haughey
Family Trust v. Pasquale, et al.; and on March 31, 2011, a
putative class action entitled Rappoport v. Pasquale, et al. All
four actions name NHP, its directors, Ventas, Inc. and Needles
Acquisition LLC as defendants. All four actions allege, among
other things, that NHP's directors breached certain alleged duties
by approving the merger agreement between the Company and NHP
because the proposed transaction purportedly fails to maximize
stockholder value and provides certain directors personal benefits
not shared by NHP stockholders and that the Company aided and
abetted those purported breaches. In addition to asserting direct
claims on behalf of a putative class of NHP shareholders, the
Haughey and Rappoport actions purport to bring derivative claims
on behalf of NHP, asserting breaches of certain alleged duties by
NHP's directors in connection with their approval of the proposed
transaction. All four actions seek to enjoin the proposed merger,
and the Taylor action seeks damages.
On March 30, 2011, pursuant to stipulation of the parties, the
Maryland State Court entered an order consolidating the Crowley,
Taylor and Haughey actions. The Rappoport action was consolidated
with the other actions on April 15, 2011.
On April 1, 2011, pursuant to stipulation of the parties, the
Maryland State Court entered an order: (i) certifying a class of
NHP shareholders; and (ii) providing for the plaintiffs to file a
consolidated amended complaint. The plaintiffs filed a
consolidated amended complaint on April 19, 2011, which the
defendants moved to dismiss on April 29, 2011. Plaintiffs opposed
that motion on May 9, 2011. Plaintiffs moved for expedited
discovery on April 19, 2011, and the defendants simultaneously
opposed that motion and moved for a protective order staying
discovery on April 26, 2011. The Maryland State Court denied
plaintiffs' motion for expedited discovery and granted defendants'
motion for a protective order on May 3, 2011. On May 6, 2011,
plaintiffs moved for reconsideration of the Maryland State Court's
grant of the protective order. The Maryland State Court denied
the plaintiffs' motion for reconsideration on May 11, 2011. On
May 27, 2011, the Maryland State Court entered an order dismissing
the consolidated action with prejudice. Plaintiffs moved for
reconsideration of that order on June 6, 2011.
On June 9, 2011, the Company and NHP agreed on a settlement in
principle with the plaintiffs in the consolidated action pending
in Maryland State Court, which required the Company and NHP to
make certain supplemental disclosures to stockholders concerning
the merger. The Company and NHP made the supplemental disclosures
on June 10, 2011. The settlement is subject to appropriate
documentation by the parties and approval by the Maryland State
Court.
The Company believes that each of these actions is without merit.
VERIZON CALIFORNIA: Accused of Defrauding Phone Customers
---------------------------------------------------------
David Wolk and Barbara Wolk, individually and on behalf of a class
of similarly situated individuals v. Verizon California, Inc., a
California corporation, Enhanced Services Billing Inc., a Texas
corporation, and Does 1-10, inclusive, Case No. 4:11-cv-03916
(N.D. Calif., August 10, 2011) alleges that the Defendants charge
telephone subscribers for unauthorized products and services.
Verizon conspires with a billing "aggregator" to charge for
"premium content" that customers did not order and don't want,
irate subscribers say in the class action, Nick McCann at
Courthouse News Service reports. Verizon knows it's a scam but
won't stop it because it's profitable, the class adds.
The Wolks say the Defendants have no system to verify whether
customers actually bought "premium content" for their mobile and
landline phones.
"Premium content ranges from web hosting products, to diet
monitoring services, to e-mail accounts and to office supplies,"
the complaint states.
The content providers do not directly bill phone subscribers, but
partner with billing processers such as Enhanced Service Billing.
The complaint cites a government investigation of "content
provider" Snackable Media, which found that "over 90% of its
charges to landline telephone accounts were unauthorized by the
billed party."
"Defendants' methods for determining authorization continue to be
highly problematic as they contract on behalf of themselves and
affiliated companies with marketers who frequently depend on
little more than information readily available through the public
domain, such as one's name and telephone number," the complaint
states.
The class claims that content providers can bill anyone they like
for any service they please: all the biller needs is their phone
number.
"Premium content providers frequently are required only to provide
to an aggregator such as ESBI a landline telephone number and an
amount to charge," the complaint states. "Next, the aggregator
simply relays that information to the carrier, such as Verizon, to
place a charge on the telephone bill associated with that number."
When consumers complain, Verizon and its cohorts use "a 'charge
first, refund later, if at all' approach to their business," the
class says.
Beginning in 2009, the Wolks' telephone account was charged by
Defendants for unwanted and unauthorized premium content services,
and the Defendants have yet to provide a full refund of those
charges, which consist of the premium content charges, taxes, back
interest, lost time, and attorneys' fees, the lawsuit says. The
Plaintiffs also accuse the Defendants of failing to implement
adequate procedures to ensure that those unauthorized charges
would not appear in future billing periods.
The Wolks say that Verizon and its affiliated companies know about
the unauthorized billing, and have the ability to stop it. But
"they have purposefully maintained a system without any checks or
safeguards because it is a source of significant profit to them."
The Wolks seek restitution and treble damages for racketeering,
tortious interference with contract, unjust enrichment and other
charges.
The Plaintiffs are family members and are residents of California.
Verizon is a large conglomerate, which, by itself and through its
numerous subsidiary corporations, provides telephone services to
consumers throughout the nation. ESBI is a billing processor, or
"aggregator," for numerous telephonic services provided by
numerous third parties and billed to customers through local
landline telephone providers, also known as local exchange
carriers. Plaintiffs are currently ignorant of the true names and
capacities of the Doe Defendants.
A copy of the Complaint in Wolk, et al. v. Verizon California,
Inc., et al., Case No. 11-cv-03916 (N.D. Calif.), is available at:
http://www.courthousenews.com/2011/08/11/VerizonCA.pdf
The Plaintiffs are represented by:
David C. Parisi, Esq.
Suzanne Havens Beckman, Esq.
Azita Moradmand, Esq.
PARISI & HAVENS LLP
15233 Valleyheart Drive
Sherman Oaks, CA 91403
Telephone: (818) 990-1299
Facsimile: (818) 501-7852
E-mail: dcparisi@parisihavens.com
shavens@parisihavens.com
amoradmand@parisihavens.com
- and -
Michael J. McMorrow, Esq.
John C. Ochoa, Esq.
EDELSON MCGUIRE LLC
350 North LaSalle Street, Suite 1300
Chicago, IL 60654
Telephone: (312) 589-6370
Facsimile: (312) 589-5378
E-mail: mjmcmorrow@edelson.com
jochoa@edelson.com
VIVUS INC: Oct. 5 Hearing Set for Motion to Dismiss "Kovtun" Suit
-----------------------------------------------------------------
The hearing on Vivus, Inc.'s motion to dismiss a class action
lawsuit pending in California is scheduled for October 5, 2011,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
The Company and two of its officers are defendants in a putative
class action lawsuit captioned Kovtun v. Vivus, Inc., et al., Case
No. CV10-4957 PJH, pending in the U.S. District Court, Northern
District of California. The action, filed in November 2010,
alleges violations of Section 10(b) and 20(a) of the federal
Securities Exchange Act of 1934 based on allegedly false or
misleading statements made by defendants in connection with the
Company's clinical trials and New Drug Application, or NDA, for
QNEXA as a treatment for obesity. In his Amended Class Action
Complaint filed April 4, 2011, plaintiff alleges generally that
defendants misled investors regarding the prospects for QNEXA's
NDA approval, and the drug's efficacy and safety. On June 3, 2011,
defendants filed a motion to dismiss, which is currently scheduled
for hearing on October 5, 2011. Discovery is stayed pending
resolution of the motion.
WARNER CHILCOTT: Continues to Defend ACTONEL Suits in Canada
------------------------------------------------------------
Warner Chilcott Public Limited Company continues to defend itself
against four product liability class actions in Canada, according
to the Company's August 5, 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 approximately 108 cases and a
potential defendant with respect to approximately 86 unfiled
claims involving a total of approximately 201 plaintiffs and
potential plaintiffs relating to the Company's bisphosphonate
prescription drug ACTONEL. The claimants allege, among other
things, that ACTONEL caused them to suffer osteonecrosis of the
jaw ("ONJ"), a rare but serious condition that involves severe
loss or destruction of the jawbone, and/or atypical fractures of
the femur. All of the cases have been filed in either federal or
state courts in the United States. The Company is in the initial
stages of discovery in these litigations. The 86 unfiled claims
involve potential plaintiffs that have agreed, pursuant to a
tolling agreement, to postpone the filing of their claims against
the Company in exchange for the Company's agreement to suspend the
statutes of limitations relating to their potential claims.
In addition, the Company is aware of four purported product
liability class actions that were brought against the Company in
provincial courts in Canada alleging, among other things, that
ACTONEL caused the plaintiffs and the proposed class members who
ingested ACTONEL to suffer atypical fractures or other side
effects. It is expected that these plaintiffs will seek class
certification. The Company is reviewing these lawsuits and
potential claims and intends to defend these claims vigorously.
WARNER CHILCOTT: Continues to Defend FLSA Suit in Illinois
----------------------------------------------------------
Warner Chilcott Public Limited Company continues to defend itself
against a class action lawsuit brought under the Fair Labor
Standards Act and the Illinois Minimum Wage Law, according to the
Company's August 5, 2011, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended June 30,
2011.
In August 2010, an affiliate of the Company was served with a
complaint in a class and collective action brought under the Fair
Labor Standards Act and the Illinois Minimum Wage Law. The lawsuit
was filed in the United States District Court for the Northern
District of Illinois by a former pharmaceutical sales
representative of defendant, on behalf of herself and other sales
representatives. The suit alleges that defendant improperly
categorized its pharmaceutical sales representatives as "exempt"
rather than "non-exempt" employees and as a result, wrongfully
denied them overtime compensation. Plaintiff is seeking damages
for unpaid overtime, including back pay, liquidated damages,
penalties, interest, and attorneys' fees. Other pharmaceutical
companies have been the subject of similar lawsuits. Defendant
believes it has meritorious defenses and intends to defend this
action vigorously. This case is in the early stages of litigation,
and an estimate of the range of potential losses to the Company,
if any, relating to these proceedings is not possible at this
time.
WELLS FARGO: AARP Class Action May Include Past HECM Borrowers
--------------------------------------------------------------
Elizabeth Ecker, writing for Reverse Mortgage Daily, reports that
AARP's recent class action lawsuit filed against Wells Fargo and
Fannie Mae regarding reverse mortgage borrowers and heirs who have
been allegedly foreclosed upon without the option to buy back the
home for fair market value could include those who got reverse
mortgages before HUD initially changed its non-recourse guidance,
says AARP counsel.
When asked whether the class involved in the lawsuit includes
those who were foreclosed on before the HUD guidance regarding its
recourse policy for HECMs, AARP counsel said yes, it does.
"The lenders had contracts with the borrowers that required that,
prior to the initiation of foreclosure, they would be offered the
chance to sell the property for 95% of its appraised value prior
to initiating foreclosure proceedings," said Jeanne Constantine-
Davis, AARP Foundation Senior Attorney in an e-mail to RMD. "When
HUD issued Mortgagee Letter 2008-38, the lenders all went along
with it, despite their contracts with the borrowers."
Today, the HECM contract states clearly that the borrower has the
option to sell the property for the lesser of the loan balance or
95% of the appraised value and apply the net proceeds of the sale
toward the balance of the mortgage. But Mortgagee Letter 2008-38
set a different policy in December 2008 when it began to require
that the 95% option was only available in an arm's-length
transaction, excluding the borrowers' heirs.
A lawsuit filed earlier this year by AARP against the Department
of Housing and Urban Development targeted the recourse policy set
forth by that mortgagee letter. The case was dismissed in
July after HUD changed its policy in April.
"One month after the [earlier] AARP suit was filed, HUD reversed
itself, and reinstituted the HUD policy to the fairer practice of
not requiring payment that exceeded the updated value of the
home," AARP said in a statement. "The new suit alleges that,
despite HUD's correction of its rules, the defendants are still
failing to give notice to surviving spouses and heirs of their
rights to purchase the property for the lower value, and are
foreclosing and seeking to evict an heir who is attempting to pay
off the current fair market price on an underwater home," said
AARP in a statement.
Wells Fargo says it intends to defend itself, and notes that the
plaintiff in the case had a positive reverse mortgage experience
and remained in her home through the end of her life.
"Wells Fargo services reverse mortgages in accordance with the
guidelines required by HUD, the Department of Housing and Urban
Development. In April 2011, HUD changed the rules to allow the
heirs of a reverse mortgage property to purchase the home at 95%
of the appraised value. When the HUD rules changed, we adopted
them including providing notice to the heirs," a Wells Fargo
spokeswoman told RMD in an e-mail. She said she could not comment
further because the case is in litigation.
A summary of the case by the National Reverse Mortgage Lenders
Association legal counsel, Weiner Brodsky Sidman Kider, notes that
the class in the lawsuit includes those borrowers under HECM loans
of Wells Fargo and Fannie Mae, their heirs and/or estates, who
were not given the "95% right" and whose homes were sold at
foreclosure without the right to purchase the homes for 95% of the
then-appraised value.
"The suit asks for a declaratory relief that defendants not be
permitted to foreclose on such class members unless and until the
borrowers (or their heirs or estates) are given the '95% right,'
and it alleges breach of contract, and unfair and deceptive acts
and practices claims under California law. The suit also requests
a jury trial," the summary says.
While the suit is still very new, legal counsel writes, lenders
and servicers should review their practices with counsel and
ensure that they are in compliance with all HUD guidelines in this
area, including but not limited to the most recent pronouncements
by HUD.
XL GROUP: Fairness Hearing Set for September in Suit vs. Unit
-------------------------------------------------------------
A final fairness hearing has been set for September 2011 in the
consolidated class action lawsuit against XL Group's subsidiary,
according to the Company's August 4, 2011, Form 10-Q filing with
the U.S. Securities and Exchange Commission for the quarter ended
June 30, 2011.
In August 2005, plaintiffs in a proposed class action (the "Class
Action") that was consolidated into a multidistrict litigation in
the United States District Court for the District of New Jersey,
captioned In re Brokerage Antitrust Litigation, MDL No. 1663,
Civil Action No. 04-5184 (the "MDL"), filed a consolidated amended
complaint (the "Amended Complaint"), which named as new defendants
approximately 30 entities, including Greenwich Insurance Company,
Indian Harbor Insurance Company and XL Group Ltd. (formerly, XL
Capital Ltd), a Cayman Islands exempted company (the "XL
Defendants"). In the MDL, the Class Action plaintiffs asserted
various claims purportedly on behalf of a class of commercial
insureds against approximately 113 insurance companies and
insurance brokers through which the named plaintiffs allegedly
purchased insurance. The Amended Complaint alleged that the
defendant insurance companies and insurance brokers conspired to
manipulate bidding practices for insurance policies in certain
insurance lines and failed to disclose certain commission
arrangements and asserted statutory claims under the Sherman Act,
various state antitrust laws and the Racketeer Influenced and
Corrupt Organizations Act ("RICO"), as well as common law claims
alleging breach of fiduciary duty, aiding and abetting a breach of
fiduciary duty and unjust enrichment. By Opinion and Order dated
August 31, 2007, the District Court dismissed the Sherman Act
claims with prejudice and, by Opinion and Order dated September
28, 2007, the District Court dismissed the RICO claims with
prejudice. The plaintiffs then appealed both Orders to the U.S.
Court of Appeals for the Third Circuit. On August 16, 2010, the
Third Circuit affirmed in large part the District Court's
dismissal. The Third Circuit reversed the dismissal of certain
Sherman Act and RICO claims alleged against several defendants
including the XL Defendants but remanded those claims to the
District Court for further consideration of their adequacy. In
light of its reversal and remand of certain of the federal claims,
the Third Circuit also reversed the District Court's dismissal
(based on the District Court's declining to exercise supplemental
jurisdiction) of the state-law claims against all defendants. On
October 1, 2010, the remaining defendants, including the XL
Defendants, filed motions to dismiss the remanded federal claims
and the state-law claims. The motions were fully briefed in
November 2010. In May 2011, a majority of the remaining
defendants, including the XL Defendants, executed a formal
Settlement Agreement settling the Class Action with prejudice. The
settlement was preliminarily approved by the District Court in
June 2011 and a final fairness hearing is scheduled for September
2011.The XL Defendants' portion of the defendants' aggregate
settlement payment is $6.75 million.
Various XL entities have been named as defendants in three of the
many tag-along actions that have been consolidated into the MDL
for pretrial purposes. The complaints in these tag-along actions
make allegations similar to those made in the Amended Complaint
but do not purport to be class actions. On April 4, 2006, a tag-
along complaint was filed in the U.S. District Court for the
Northern District of Georgia on behalf of New Cingular Wireless
Headquarters LLC and several other corporations and remains
pending against approximately 100 defendants, including Greenwich
Insurance Company, XL Specialty Insurance Company, XL Insurance
America, Inc., XL Insurance Company Limited and XL-Cayman. On or
about May 21, 2007, a tag-along complaint was filed in the U.S.
District Court for the District of New Jersey on behalf of Henley
Management Company, Big Bear Properties, Inc., Northbrook
Properties, Inc., RCK Properties, Inc., Kitchens, Inc., Aberfeldy
LP and Payroll and Insurance Group, Inc. against multiple
defendants, including "XL Winterthur International." On
October 12, 2007, a complaint in a third tag-along action was
filed in the U.S. District Court for the Northern District of
Georgia by Sears, Roebuck & Co., Sears Holdings Corporation, Kmart
Corporation and Lands' End Inc. against many named defendants
including X.L. America, Inc., XL Insurance America, Inc., XL
Specialty Insurance Company and XL Insurance (Bermuda) Ltd. The
tag-along actions, including the three in which the XL entities
are named defendants, remain stayed.
By Order dated June 20, 2011, the District Court reassigned the
Class Action and the various tag-along actions from Chief Judge
Brown to newly-appointed Judge Claire Cecchi.
YAHOO! INC: Appeals in Consolidated Suit vs. Unit Still Pending
---------------------------------------------------------------
Appeals from the final approval of a global settlement in the
securities class action lawsuits against Overture Services Inc.
remain pending, according to Yahoo! Inc.'s August 8, 2011, Form
10-Q filing with the U.S. Securities and Exchange Commission for
the quarter ended June 30, 2011.
On July 12, 2001, the first of several purported securities class
action lawsuits was filed in the U.S. District Court for the
Southern District of New York against certain underwriters
involved in Yahoo! Inc.'s subsidiary, Overture Services Inc.'s
initial public offering, Overture, and certain of Overture's
former officers and directors. The court consolidated the cases
against Overture. Plaintiffs allege, among other things,
violations of the Securities Act of 1933 and the Securities
Exchange Act of 1934 involving undisclosed compensation to the
underwriters, and improper practices by the underwriters, and seek
unspecified damages. Similar complaints were filed in the same
court against numerous public companies that conducted IPOs of
their common stock since the mid-1990s. All of these lawsuits
were consolidated. On October 5, 2009, the court granted class
certification and granted final approval of a stipulated global
settlement and plan of allocation. On October 6, 2010, various
individuals objecting to the settlement filed opening appeal
briefs with the U.S. Court of Appeals for the Second Circuit, and
in early February 2011 Yahoo! and other appellees filed reply
briefs in support of the settlement.
Based on current knowledge, the Company does not believe that the
aggregate amount of liability that is reasonably possible with
respect to the legal proceedings or claims would have a
material adverse effect on its financial position, results of
operations, or cash flows. In the event of a determination
adverse to Yahoo!, its subsidiaries, directors, or officers in
these matters, however, the Company may incur substantial monetary
liability, and be required to change its business practices.
Either of these could have a material adverse effect on the
Company's financial position, results of operations, or cash
flows. The Company may also incur substantial expenses in
defending against these claims.
Yahoo! Inc. -- http://info.yahoo.com/-- together with its
consolidated subsidiaries, is a premier digital media company that
delivers personalized digital content and experiences, across
devices and around the globe, to vast audiences. The Company
provides engaging and innovative canvases for advertisers to
connect with their target audiences using a unique blend of
Science + Art + Scale. Through its proprietary technology and
insights, the Company delivers unique content and experiences for
its audience and creates powerful opportunities for its
advertisers to connect with their target audiences, in context and
at scale.
YAHOO! INC: Continues to Defend Securities Suit in California
-------------------------------------------------------------
Yahoo! Inc. continues to defend itself against a securities class
action complaint relating to its equity investment in Alibaba
Group Holding Limited, according to the Company's August 8, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
On June 6, 2011, a purported stockholder class action, Bonato v.
Bartz, et al., was filed in the U.S. District Court for the
Northern District of California against the Company and certain
officers and directors for alleged violations of the Securities
Exchange Act of 1934. Plaintiff seeks to represent a class of
persons who purchased or otherwise acquired the Company's common
stock between April 19, 2011 and May 13, 2011, and alleges that
during that class period, defendants issued false or misleading
statements regarding the Company's business and financial results
and failed to disclose that Alibaba Group transferred ownership of
its payments processing subsidiary Alipay.com Co., Ltd., at less
than market value. The complaint purports to assert claims for
relief for violation of Section 10(b) and 20(a) of the Exchange
Act and for violation of Rule 10b-5 thereunder, and seeks
unspecified damages, injunctive and equitable relief, fees and
costs.
Yahoo! Inc. -- http://info.yahoo.com/-- together with its
consolidated subsidiaries, is a premier digital media company that
delivers personalized digital content and experiences, across
devices and around the globe, to vast audiences. The Company
provides engaging and innovative canvases for advertisers to
connect with their target audiences using a unique blend of
Science + Art + Scale. Through its proprietary technology and
insights, the Company delivers unique content and experiences for
its audience and creates powerful opportunities for its
advertisers to connect with their target audiences, in context and
at scale.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
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