/raid1/www/Hosts/bankrupt/CAR_Public/110913.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, September 13, 2011, Vol. 13, No. 181
Headlines
ALLIS-CHALMERS ENERGY: Awaits OK of Deal in Merger-Related Suits
ARIZONA BEVERAGES: Reconsideration Motion in Class Action Denied
BP PLC: Landowners File Class Action Over Oil Spill
BROCADE COMMUNICATIONS: Appeals in IPO Suit Remain Pending
DENDREON: Mulls 500 Job Cuts Amid Shareholder Class Action
DYCOM INDUSTRIES: N.Y. Court Approves Deal in Wage and Hour Suits
EXPRESS INC: Awaits Final Approval of Calif. Suit Settlement
FACEBOOK: Class Action Over Misappropriation of Identity Ongoing
JOHN B. SANFILIPPO: Awaits Final OK of "Cardenas" Suit Settlement
KOSS CORP: Court Dismisses Certain Claims in "Puskala" Suit
KTM NORTH: Recalls 6,117 Off-Road Motorcycles Due to Fall Hazard
LEHMAN BROTHERS: Court Partly Grants Securities Suit Dismissal Bid
LEHMAN BROTHERS: N.Y. Securities Suits Remain Stayed as to Debtors
ONTARIO, CA: June 2012 Rideau Settlement Opt-Out Deadline Set
PANDORA MEDIA: Faces Class Suits Over Privacy Issues
POTTERY BARN: Recalls 82,300 Dolls Due to Strangulation Hazard
PRIMARY RESIDENTIAL: Accused of Not Paying Overtime Pay in Calif.
STATE OF INDIANA: Attorney Discusses State Fair Tragedy Settlement
TARGET CORP: Recalls to Repair 447,000 Embark Resistance Cords
USTA: Umpires File Class Action Over Wage & Hour Violations
WACHOVIA: Nov. 14 Class Action Settlement Fairness Hearing Set
WELLS FARGO: Judge Denies Class-Action Status to Mortgage Suit
* Second Order Procedures in Class Actions Drag U.S. Economy
*********
ALLIS-CHALMERS ENERGY: Awaits OK of Deal in Merger-Related Suits
----------------------------------------------------------------
Allis-Chalmers Energy Inc. is awaiting court approval of a
stipulation and order for the dismissal of all claims in merger-
related lawsuits, according to the Company's September 2, 2011,
Form 10-Q filing with the U.S. Securities and Exchange Commission
for the quarter ended June 30, 2011.
On February 23, 2011, Allis-Chalmers Energy Inc., a Delaware
corporation, completed its merger (the "Merger") with and into
Wellco Sub Company ("Wellco"), a Delaware corporation and wholly
owned subsidiary of Seawell Limited ("Seawell"), with Wellco
continuing as the surviving entity under the name Allis-Chalmers
Energy Inc. The Merger was effected pursuant to the Agreement and
Plan of Merger, dated as of August 10, 2010, by and among Allis-
Chalmers, Seawell and Wellco, as amended. Following the Merger,
Seawell began operating under the name Archer Limited ("Archer" or
"Parent").
Shortly following the announcement of the merger agreement with
Seawell (now Archer) in August 2010, ten putative stockholder
class-action petitions and complaints were filed against various
combinations of the Company, members of its board of directors and
the Archer parties to the merger agreement. Seven of the lawsuits
were filed in Texas and three lawsuits were filed in Delaware.
These lawsuits had challenged the proposed merger and generally
allege, among other things, that the Company's directors have
breached their fiduciary duties owed to the Company's public
stockholders by approving the merger and failing to take steps to
maximize the Company's value to its public stockholders. The
lawsuits generally sought, among other things, compensatory
damages, attorneys' and experts' fees, declaratory and injunctive
relief concerning the alleged breaches of fiduciary duties, and
injunctive relief prohibiting the defendants from consummating the
merger. In February 2011, the plaintiffs' request for an
injunction was denied by the Delaware court and the merger closed
on February 23, 2011. In July 2011, plaintiffs and defendants
jointly filed a stipulation and order for the dismissal of all
claims as moot with the plaintiffs reserving only their
application for attorney's fees and expenses, which the Company
and other defendants oppose. The proposed stipulation and order
is pending before the court.
ARIZONA BEVERAGES: Reconsideration Motion in Class Action Denied
----------------------------------------------------------------
Sean Wajert, writing for Dechert LLP's MassTortDefense, reports
that a federal court denied a motion for reconsideration of its
ruling that denied class certification to a consumer alleging that
Arizona Beverages deceptively marketed its drinks as "all
natural." See Coyle v. Hornell Brewing Co. et al., No.1:08-cv-
02797 (D.N.J. 8/30/11).
Plaintiff alleged that she was misled by labels on bottles of
Arizona brand beverages touting "All Natural" ingredients, and
thereby induced into buying bottles of Arizona beverages that
contained High Fructose Corn Syrup ("HFCS"), which she claimed is
not "natural". Plaintiff sought to certify, under Fed. R. Civ. P.
23(b)(2), a class of consumers who purchased similarly labeled
Arizona beverages that contained HFCS, seeking only declaratory
and injunctive relief.
During the course of discovery in this case, plaintiff produced a
retainer agreement she signed in anticipation of this lawsuit.
But, the agreement was signed on August 9, 2007, more than seven
months before plaintiff alleged that she was first misled by
defendants' "all natural" labeling in her product purchase on
March 30, 2008. Indeed, plaintiff repeated the 3/08 purchase date
in her deposition. She later changed her story.
The court originally observed that it need not find plaintiff to
have intentionally lied to hold that she did not meet the adequacy
element of Rule 23(a)(4). The issue was not simply whether
plaintiff in fact lied, but whether her inconsistent testimony
made her vulnerable to a unique factual or legal defense not faced
by other class members, thereby rendering her interests
potentially too antagonistic to the interests of the other class
members. And that is exactly the case; the court found that
plaintiff's factual inconsistencies raised sufficiently grave
credibility problems as to prevent her from serving as an adequate
class representative.
Plaintiff filed a reconsideration motion. The court did
reconsider its finding as to the adequacy of plaintiff's counsel
as a result of plaintiff's repeated pleadings and certified
discovery responses including the March 30, 2008 allegation. This
"serious error" did not necessarily disqualify counsel.
But the court re-affirmed its decision as to the adequacy of
plaintiff as class representative. Plaintiff argued that any
defenses that she would face as a result of the credibility
problems identified by the court could not become the focus of the
entire litigation. But the controlling rule does not hold that
the only defenses that will disqualify a proposed named plaintiff
on adequacy grounds are those which could become the focus of the
entire litigation. Indeed, to deny certification, a court need
not conclude that credibility problems would ultimately defeat the
class representative's claim; rather, the court may deny class
treatment if that unique defense is even arguably present.
In any event, the court disagreed with plaintiff's contention that
the unique credibility-related defenses could not become the focus
of the litigation in this matter. The court noted that plaintiff
would have real trouble surviving summary judgment on the issue of
"ascertainable loss" with a record showing no dispute of fact that
plaintiff's only qualifying purchase of defendants' product took
place after plaintiff herself had concluded that the product was
not "all natural." Plaintiff's entire action would be vulnerable
to a motion for summary judgment on the issue of ascertainable
loss, which would prevent plaintiff (and the class she would seek
to represent) from pursuing even injunctive relief.
Determining whether this plaintiff made her purchase of
defendants' product on the date she repeatedly claimed, after she
had retained a lawyer to file the suit, would become a major focus
and quite probably a show-stopper for this class. Reconsideration
denied.
BP PLC: Landowners File Class Action Over Oil Spill
---------------------------------------------------
Sabrina Canfield at Courthouse News Service reports that BP could
have stopped the oil spewing from its broken wellhead in the Gulf
of Mexico, but didn't do so for fear it might damage the well and
make it no good for future use, a class of landowners claims in
Federal Court.
"After the blowout and before the well was finally sealed, BP was
aware of procedures that would immediately block the flow of
hydrocarbons into the Gulf, yet it delayed the implementation of
any such procedures, and limited its efforts to plug the well to
options that would salvage the well for future use, instead of
selecting procedures that would stop the flow of oil and gas as
soon as possible regardless of the well's continued
functionality," the complaint states.
Lead plaintiff Guy Mendes III owns land on the Grand Terre
islands, and sued on his own behalf and for 100 other Grand Terre
islands property owners.
"Plaintiff and the class are owners of some of Southern
Louisiana's most important barrier islands -- the islands of Grand
Terre. These islands sit as the main barrier between the Gulf of
Mexico and Barataria Bay, serving an integral role in Louisiana's
natural coastal defenses," according to the complaint.
Mr. Mendes says the April 20, 2010 explosion of the Deepwater
Horizon rig "marked the beginning of what would become the most
pervasive and devastating environmental disaster in the history of
the United States. The blowout and subsequent explosions, fire,
and sinking of the vessel resulted in an oil spill of
unprecedented proportions that damaged, depleted and destroyed
marine, estuarine, and coastal environments in and around the Gulf
of Mexico, including the Grand Terre islands. Although the blown-
out well is now capped, the disastrous environmental effects of
the spill are widespread and ongoing on Grand Terre and will
likely remain so for decades. . . .
"Each day during the course of the spill, tens of thousands of
barrels of oil and gas gushed from the wellhead and broken riser,
roiling towards the surface and flattening out into a widening
slick of oil, as well as spreading out in vast subsurface plumes.
On the surface, the shifting smear was large enough to be visible
from outer space, at times covering tens of thousands of square
miles . . .
"The blowout on the Deepwater Horizon and the resulting spill were
foreshadowed by a string of prior disastrous incidents and near
misses in defendants' operations on land and at sea, as well as
poor decision-making by defendants' employees, as they ignored
crucial safety issues, cut corners, and violated U.S. law to save
time and money at the expense of safety and the environment.
"Defendants could have prevented this catastrophe by following
required safety protocols and precautionary procedures, properly
maintaining equipment, and using widely available emergency safety
technology aboard the Deepwater Horizon but, with no regard for
the risk of the Gulf Coast environment and Grand Terre, defendants
chose to save money and time by skimping on safety. Their cost-
cutting measures were intentional and outrageous -- consistent
with their long corporate histories of flagrant disregard for
safety -- and were taken with willful, wanton, and reckless
indifference to the disastrous results to the environment of Grand
Terre and the Gulf of Mexico. Moreover, because their conduct was
repetitive, was purposeful or intentional rather than accidental,
endangered the health and safety of a large region and population,
contaminated the class members' property with oil and tar, caused
and increased the risk of environmental harm, serious injury and
bodily and emotional harm, and affected a financially vulnerable
population dependant upon the Gulf of Mexico, the degree of
reprehensibility of defendants' conduct is at the highest level.
"The spill, resulting from the defendants' despicable conduct,
along with the resulting ineffective attempts at clean-up, have
caused and continue to cause devastating environmental damage to
Louisiana's most important coastal defenses, including Grand
Terre. More than sixteen months after the blowout, oil and tar
still contaminate Grand Terre, large numbers of dead fish, crabs,
and stingrays continue to wash ashore on its beaches, and
ineffective clean-up efforts are ongoing. While it has been
reported that the majority of the surface oil in the Gulf of
Mexico has now been collected, burned, dispersed, or broken down,
the waters surrounding Grand Terre still remain closed to fishing,
and subsurface oil and tar still threaten to resurface and further
damage Grand Terre and the delicate Gulf Coast ecosystem."
Besides serving as breeding areas for birds, fish and crustaceans,
wetlands cushion the blow of hurricanes on coastal areas. Every 3
to 4 miles of healthy coastal wetlands over which a storm surge
travels is estimated to reduce the size of the surge by 1 foot.
Before the oil spill, coastal Louisiana lost wetlands at a rate of
about 1 acre every half hour. Forty to 60% of annual wetland loss
is attributed to the oil and gas industry, according to statistics
from the Gulf Coast Restoration Network.
Mr. Mendes claims that "although this is a single-event, single-
location mass disaster that has affected, and will continue to
affect Grand Terre for a long time to come, its wide-ranging
effects can be traced back to one single root: a chain of
decisions and actions made jointly, severally, and solidarily by
the small group of defendants named here."
Named as defendants are BP, Transocean, Triton Asset Leasing,
Halliburton, M-I LLC, Cameron International Corp., Weatherford
U.S. L.P., MOEX USA Corp. and Mitsui Oil Exploration Co.
Mr. Mendes says that "after the blowout and before the well was
finally sealed, BP was aware of procedures that would immediately
block the flow of hydrocarbons into the Gulf, yet it delayed the
implementation of any such procedures, and limited its efforts to
plug the well to options that would salvage the well for future
use, instead of selecting procedures that would stop the flow of
oil and gas as soon as possible regardless of the well's continued
functionality. As such, BP increased the magnitude of, and damage
caused by, the spill by willfully and/or wantonly and recklessly
choosing its profits over the lives of the workers on the vessel,
the safety of the environment, and the health, welfare, and value
of the people, businesses, and property of the Gulf Coast . . ..
"Defendants' conduct . . . is at the highest level of
reprehensibility, warranting and necessitating the imposition of
punitive damages at the highest level, because defendants' conduct
was motivated by financial gain; because it injured and endangered
humans and the environmental health and safety; because it was not
isolated or accidental, but part of a culture and ongoing pattern
of conduct that consistently and repeatedly ignored risks to
others in favor of financial advantage to defendants; and because
it has accordingly caused societal harm, moral outrage and
condemnation, and the need to punish defendants and deter further
repetition by defendants or others."
Mr. Mendes and the putative class are represented by Dawn Barrios
with Barrios, Kingsdorf & Casteix of New Orleans and Elizabeth
Cabraser with Lieff, Cabraser, Heimann & Bernstein of San
Francisco.
Elizabeth Cabraser represented plaintiffs in the Exxon Valdez
spill. She is on the plaintiff steering committee for the
multidistrict litigation overseen in New Orleans Federal Court by
U.S. District Judge Carl Barbier.
A copy of the Complaint in Mendes v. BP p.l.c., et al., Case No.
11-cv-02218 (E.D. La.) (Barbier, J.), is available at:
http://www.courthousenews.com/2011/09/08/GrandTerre.pdf
The Plaintiff is represented by:
Dawn M. Barrios, Esq.
Bruce S. Kingsdorf, Esq.
Zachary L. Wool, Esq.
BARRIOS, KINGSDORF & CASTEIX, LLP
701 Poydras Street, Suite 3650
New Orleans, LA 70139-3650
Telephone: (504) 524-3300
E-mail: barrios@bkc-law.com
kingsdorf@bkc-law.com
zwool@bkc-law.com
- and -
Elizabeth J. Cabraser, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
E-mail: ecabraser@lchb.com
- and -
Steven E. Fineman, Esq.
Wendy R. Fleishman, Esq.
Annika K. Martin, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: (212) 355-9500
E-mail: sfineman@lchb.com
wfleishman@lchb.com
akmartin@lchb.com
- and -
Elizabeth A. Alexander, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
150 Fourth Avenue N., Suite 1650
Nashville, TN 37219
Telephone: (615) 313-9000
E-mail: ealexander@lchb.com
BROCADE COMMUNICATIONS: Appeals in IPO Suit Remain Pending
----------------------------------------------------------
On July 20, 2001, the first of a number of putative class actions
for violations of the federal securities laws was filed in the
United States District Court for the Southern District of New York
against Brocade Communications Systems, Inc., certain of its
officers and directors, and certain of the underwriters for
Brocade's initial public offering ("IPO") of securities. A
consolidated amended class action captioned, In re Brocade
Communications Systems, Inc. Initial Public Offering Securities
Litigation, No. 01 Civ. 6613, was filed on April 19, 2002. The
complaint generally alleges that various underwriters engaged in
improper and undisclosed activities related to the allocation of
shares in Brocade's initial public offering and seeks unspecified
damages for claims under the Exchange Act on behalf of a purported
class of purchasers of common stock from May 24, 1999, to December
6, 2000. The lawsuit against Brocade was coordinated for pretrial
proceedings with a number of other pending litigations challenging
underwriter practices in over 300 cases as In re Initial Public
Offering Securities Litigation, 21 MC 92 (SAS), including actions
against McDATA Corporation, Inrange Technologies Corporation
("Inrange") (which was first acquired by Computer Network
Technology Corporation ("CNT") and subsequently acquired by McDATA
as part of the CNT acquisition), and Foundry Networks, Inc.
("Foundry") (collectively, the "Brocade Entities"), and certain of
each entity's respective officers and directors, and initial
public offering underwriters.
The parties have reached a global settlement of the coordinated
litigation, under which the insurers will pay the full amount of
settlement share allocated to the Brocade Entities, and the
Brocade Entities will bear no financial liability. In 2009, the
Court granted final approval of the settlement and certain filed
appeals. A number of those appeals have now been dismissed. In
May 2011, the Second Circuit issued an order remanding the
remaining appeals to the district court for determination of
certain matters.
No further updates were reported in the Company's September 2,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended July 30, 2011.
DENDREON: Mulls 500 Job Cuts Amid Shareholder Class Action
----------------------------------------------------------
Chris Grygiel and Nick Eaton, writing for Seattlepi.Com, report
that there is more bad news for Seattle-based biotech firm
Dendreon.
On Sept. 8, it announced "restructuring plans" that include
dismissing about 500 employees. The Seattle Times has more
information from an afternoon conference call.
The layoff announcement comes on the heels of a class-action
lawsuit against Dendreon by shareholders, who say the company
misled the public into believing sales of its prostate-cancer drug
were higher than they actually were.
The lawsuit followed an earnings report in which Dendreon lowered
its sales forecast based on slow sales of its prostate cancer
drug, Provenge.
In the class action, shareholders allege Dendreon gave "materially
false and misleading statements and failures to disclose" true
Provenge sales between Jan. 7 and Aug. 3, leading to inflated
stock prices that tumbled when true sales were finally disclosed.
Provenge was introduced to the market Jan. 7, 2011, and on
March 10, a Dendreon news release stated the company got FDA
approval that would allow an expansion of Provenge manufacturing
to "help meet the needs of patients with asymptomatic or minimally
symptomatic metastatic castrate resistant (hormone refractory)
prostate cancer."
The plaintiffs said that was one of several statements Dendreon
released which were misleading. The lawsuit alleges Gold, the
chief executive, also gave public statements that suggested the
medical community was accepting Provenge.
On Sept. 8, Dendreon stock closed at $10.88 a share. It was up
slightly in after-hours trading. The stock was selling for more
than $40 a share in July.
DYCOM INDUSTRIES: N.Y. Court Approves Deal in Wage and Hour Suits
-----------------------------------------------------------------
The United States District Court for the Southern District of New
York approved the consolidation of two wage and hour class action
lawsuits against Dycom Industries, Inc.'s subsidiaries, and the
terms of the settlement resolving the lawsuits, according to the
Company's September 2, 2011, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended July 30,
2011.
On October 20, 2010, Prince Telecom, LLC ("Prince"), a wholly-
owned subsidiary of the Company, was named as a defendant in a
lawsuit in the U.S. District Court for the District of Oregon.
The plaintiffs, three former employees of Prince, alleged various
wage and hour claims, including that employees were not paid for
all hours worked and were subject to improper wage deductions.
Plaintiffs sought to certify as a class current and former
employees of Prince who worked in the State of Oregon. On
October 15, 2010, the plaintiffs' attorneys and Prince entered
into a memorandum of understanding pursuant to which the parties
agreed to the terms of a proposed settlement with respect to the
lawsuit. On May 18, 2011, the Court entered an Order approving
the settlement and dismissed the action with prejudice subject to
final administration of the terms of the settlement. During the
first quarter of fiscal 2011, the Company recorded approximately
$0.5 million in other accrued liabilities with respect to the
settlement, which was paid in June 2011.
On May 13, 2011, a proposed settlement was reached with respect to
the Company's other two outstanding wage and hour class action
lawsuits. In connection with an agreement to settle the two
lawsuits entered into by the Company, Prince, Cavo Broadband
Communications, LLC, Broadband Express, LLC ("BBX") and the
plaintiffs' attorneys, the Company recorded $0.6 million in other
accrued liabilities during the third quarter of fiscal 2011. The
first of the two lawsuits, which commenced on June 17, 2010, was
brought by a former employee of Prince against Prince, the Company
and certain unnamed U.S. affiliates of Prince and the Company (the
"Affiliates") in the United States District Court for the Southern
District of New York. The lawsuit alleged that Prince, the
Company and the Affiliates violated the Fair Labor Standards Act
by failing to comply with applicable overtime pay requirements.
The plaintiff sought unspecified damages and other relief on
behalf of himself and a putative class of similarly situated
current and former employees of Prince, the Company and/or the
Affiliates. The second of the lawsuits, which commenced on
September 10, 2010, was brought by two former employees of BBX
against BBX in the United States District Court for the Southern
District of Florida. The lawsuit alleged that BBX violated the
Fair Labor Standards Act by failing to comply with applicable
overtime pay requirements. The plaintiffs sought unspecified
damages and other relief on behalf of themselves and a putative
class of similarly situated current and former employees of BBX.
On August 12, 2011, the United States District Court for the
Southern District of New York issued an Order approving the
consolidation of the two lawsuits and approving the terms of the
settlement.
EXPRESS INC: Awaits Final Approval of Calif. Suit Settlement
------------------------------------------------------------
Express, Inc., is awaiting final approval of its settlement to
resolve a purported class action lawsuit alleging it violates
various California labor laws, according to the Company's
September 2, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 30, 2011.
Express was named as a defendant in a purported class action
lawsuit alleging various California state labor law violations.
The complaint was originally filed on February 18, 2009, and
amended complaints were subsequently filed. To avoid the expense
and uncertainty of further litigation with respect to this matter,
on March 31, 2011, the Company entered into a settlement agreement
to resolve all claims of the plaintiff and other similarly
situated class members that were asserted or could have been
asserted based on the factual allegations in the final amended
complaint for the case. The settlement was preliminarily approved
by the court on April 25, 2011, and is awaiting final approval.
Under the terms of the settlement, the Company will make up to a
total of $4.0 million available to pay (i) current California
employees who worked during the period commencing January 1, 2007,
and ending on April 25, 2011, (ii) former California employees who
worked during the class period and submit valid claims, and (iii)
certain legal fees and expenses on behalf of the plaintiff and the
class. After deducting legal fees and expenses from the $4.0
settlement amount, the proposed settlement will require the
Company to pay at least 55% of the remaining amount to class
members, irrespective of how many valid claims are submitted.
The Company says its unaudited Consolidated Balance Sheet as of
July 30, 2011, includes a reserve for its best estimate of the
amount it will be required to pay under the terms of the
settlement. If the number of former employees submitting valid
claims differs from the Company's expectations, then the amount of
the reserve may increase. The amount of any such change is not
expected to have a material adverse effect on the Company's
results of operations or financial condition.
Express was also named as a defendant in a purported nationwide
class action lawsuit alleging violations of the Fair Labor
Standards Act and of applicable state wage and hour statutes
related to alleged off-the-clock work. The lawsuit seeks
unspecified monetary damages and attorneys' fees. Express is
vigorously defending these claims. At this time, Express is not
able to predict the outcome of this lawsuit or the amount of any
loss that may arise from it.
FACEBOOK: Class Action Over Misappropriation of Identity Ongoing
----------------------------------------------------------------
Steve Korris, writing for The Madison St. Clair Record, reports
that Aaron Zigler of Korein Tillery class action law firm claims
owners of Facebook break state law when they publish product
endorsements of adolescents, but he hasn't identified the law he
believes they break.
"In this case, the reason plaintiffs have not specified a
particular statute is simple: this case may involve many state
statutes and common law claims, but these raise choice of law
issues that are not yet ripe for decision," he wrote on Sept. 6.
He opposed a motion from Facebook for a more definite statement in
a federal class action he proposes on behalf of mothers Melissa
Dawes and Jennifer DeYong.
Ms. Dawes and Ms. DeYong claim Facebook collected personal
information from their children and used it to produce
advertisements without their consent.
"These allegations make it clear that plaintiffs are pursuing
claims of misappropriation of their identity and accordingly put
Facebook on notice of their claim," Mr. Zigler wrote.
"Nothing more is required," he wrote.
He wrote that rules of civil procedure discourage drafting of
complaints with multiple counts that specify statutes.
He also rejected Facebook's argument that his clients lack
standing because they suffered no injury.
He wrote that they don't have to show any monetary, emotional or
physical injury.
"Plaintiffs properly allege that Facebook's conduct infringed on
plaintiffs' statutory right to be free of misappropriation of
their identity," he wrote.
"The judiciary can redress that injury by ordering Facebook to pay
actual or statutory damages to the victims," he wrote.
He also disputed Facebook's plea for First Amendment protection of
free speech.
"Facebook is simply incorrect in claiming that through its use of
names and likenesses, Facebook is simply republishing the
plaintiffs' statements," he wrote.
"When Facebook takes that user information and turns it into a
predesigned marketing tool to sell to the highest bidder, it is
not simply assisting children in expressing themselves," he wrote.
In August, Facebook lawyer Matthew Brown of San Francisco
described the complaint as a conglomeration of legal theories.
"Plaintiffs do not allege which advertisements their names or
likenesses were purportedly used in connection with, nor when the
advertisements appeared," Brown wrote.
He wrote that users provided the content Facebook was accused of
improperly publishing.
"Facebook provides a forum for authentic endorsements by persons
who, without pecuniary motive, have expressed their approval of a
particular product, service or cause," he wrote.
He wrote that the information is republished only to a user's
friends.
"Plaintiffs' vague references to unspecified state law render
their claims unintelligible, prejudice Facebook's ability to
prepare its defense, and will hinder the court's efforts to
evaluate the sufficiency of plaintiffs' claims," he wrote.
Facebook's motion remains pending before U.S. District Judge
Patrick Murphy.
His wife, lawyer Patricia Murphy of Energy, currently works in
association with Korein Tillery leader Stephen Tillery in
litigation against Syngenta Crop Protection.
District Judge Phil Gilbert of Benton presides over the Syngenta
litigation.
JOHN B. SANFILIPPO: Awaits Final OK of "Cardenas" Suit Settlement
-----------------------------------------------------------------
John B. Sanfilippo & Son, Inc. is awaiting final court approval of
a settlement resolving a class action wage and hour lawsuit,
according to the Company's September 2, 2011, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended June 30, 2011.
In fiscal 2010, a class action wage and hour lawsuit, captioned
Cardenas et. al. v John B. Sanfilippo & Son, Inc., was filed
against the Company in the U.S. District Court for the Northern
District of Illinois (the "District Court") under the Illinois
Minimum Wage Law ("IMWL") and the Fair Labor Standards Act
("FLSA"). The plaintiffs claimed damages under the IMWL in an
amount equal to all unpaid back pay alleged to be owed to the
plaintiffs, prejudgment interest on the back pay, punitive
damages, attorneys' fees and costs, and an injunction precluding
the Company from violating the IMWL. The plaintiffs additionally
claimed damages under the FLSA in an amount equal to all back pay
alleged to be owed to the plaintiffs, prejudgment interest on the
back pay, liquidated damages equal to the amount of unpaid back
wages, and attorneys' fees and costs.
In the second quarter of fiscal 2011, the plaintiffs filed a
second amended complaint in which they alleged that the Company
maintained and maintains a practice regarding the rounding of
employees' time entries which violates the IMWL and the FLSA.
Following mediation during the third quarter of fiscal 2011 in
order to cover an expanded scope of wage and hour claims,
plaintiffs and facilities, the Company agreed in principle to a
$2,600,000 settlement. In the fourth quarter of fiscal 2011, the
settlement agreement was finalized and preliminarily approved by
the District Court which includes a provision allowing for a
reverter payment if all or some class members do not submit claim
forms. The Company now expects its estimated liability for the
class action wage and hour lawsuit to be approximately $1,950,000.
The $1,950,000 estimate, recorded in administrative expenses, is
based on the Company's best estimate of the payout to class
members who submitted claim forms, the estimated reverter payout
to the Company and other agreed upon payouts pursuant to the
settlement agreement. Therefore, during the fourth quarter of
fiscal 2011, the Company recorded a $650,000 reduction in the
litigation settlement accrual which reduced the accrual from
$2,600,000 to $1,950,000. The settlement and settlement amount
(and any reduction thereof) will not become final and effective
unless and until the District Court has issued a final settlement
approval, which was anticipated to occur on or about September 8,
2011.
KOSS CORP: Court Dismisses Certain Claims in "Puskala" Suit
-----------------------------------------------------------
The United States District Court for the Eastern District of
Wisconsin granted in part Koss Corporation's motion to dismiss
claims in the class action lawsuit commenced by David A. Puskala,
according to the Company's September 2, 2011, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended June 30, 2011.
On January 15, 2010, a class action complaint was filed in federal
court in Wisconsin against the Company, Michael Koss and Sujata
Sachdeva. The lawsuit, captioned David A. Puskala v. Koss
Corporation, et al., United States District Court, Eastern
District of Wisconsin, Case No. 2:2010cv00041, alleges violations
of Section 10(b), Rule 10b-5 and Section 20(a) of the Exchange Act
relating to the unauthorized transactions and requests an award of
compensatory damages in an amount to be proven at trial. An
amended complaint was filed on September 10, 2010, adding Grant
Thornton LLP as a defendant. The Company and Grant Thornton filed
separate Motions to Dismiss the claims.
On July 28, 2011, the Court issued an order that dismissed the
Section 10(b) and Rule 10b-5 claims against Michael Koss and the
claim against Grant Thornton, and ruled that the Section 10(b) and
Rule 10b-5 claim against Koss Corporation and the Section 20(a)
claim against Michael Koss survive the motion to dismiss.
KTM NORTH: Recalls 6,117 Off-Road Motorcycles Due to Fall Hazard
----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
KTM North America Inc., of Murrieta, California, announced a
voluntary recall of about 6,117 Off-Road Motorcycles. Consumers
should stop using recalled products immediately unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The motorcycle handlebar clamp can develop cracks during normal
use causing the handlebars to move from their set position. This
can result in the rider losing control of the vehicle, posing a
fall or crash hazard.
KTM received a report of one incident in which the consumer was
hospitalized from injuries received in a crash after the handlebar
clamps cracked and failed to secure the handlebars.
This recall involves all 2011 KTM and Husaberg off-
road/competition motorcycles.
KTM models included in this recall:
Engine Size Model
----------- -----
150 XC, SX
200 XC-W
250 XC, XC-W, XCF-W Six Days, SX, SX-F
300 XC, XC-W
350 SX-F
450 XC-W Six Days, SX-F
530 XC-W Six Days
Husaberg models included in this recall:
Engine Size Model
----------- -----
390 FE
450 FE, FX
The affected Husaberg bikes are blue, yellow and white in color
with the model name and Husaberg logo located on the right and
left shrouds. Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11319.html
The recalled products were manufactured in Austria and sold at
authorized KTM and Husaberg dealers nationwide from April 2010
through May 2011 for between $6,200 and $9,500.
Consumers should immediately stop using the recalled motorcycles
and contact authorized KTM and Husaberg dealers to schedule a free
repair. For additional information, consumers should contact
authorized KTM or Husaberg dealers. Authorized dealers can be
located by going to http://www.ktm.com/or
http://www.husaberg.com/. Consumers may also call KTM North
America Inc. customer relations at (888) 985-6090 from 8:00 a.m.
to 5:00 p.m. Eastern Time Monday to Friday.
LEHMAN BROTHERS: Court Partly Grants Securities Suit Dismissal Bid
------------------------------------------------------------------
The United States District Court for the Southern District of New
York granted in part motions to dismiss filed by non-debtor
defendants in the securities litigation involving Lehman Brothers
Holdings Inc., according to the Company's September 2, 2011, Form
8-K filing with the U.S. Securities and Exchange Commission.
On June 18, 2008, the securities class action In re Lehman
Brothers Equity/Debt Securities Litigation, Case No. 08-05523
(LAK) was commenced in the United States District Court for the
Southern District of New York by plaintiffs asserting that they
purchased certain LBHI debt or equity securities pursuant to
materially false and misleading registration statements and
prospectuses, and were damaged thereby. On July 27, 2011, the
District Court granted in part and denied in part motions to
dismiss the Securities Litigation by the Non-Debtor Defendants.
These actions are stayed with respect to any Debtor defendants.
LEHMAN BROTHERS: N.Y. Securities Suits Remain Stayed as to Debtors
------------------------------------------------------------------
Securities class action lawsuits filed against Lehman Brothers
Holdings Inc. pending in New York remain stayed with respect to
debtor defendants, according to the Company's September 2, 2011,
Form 8-K filing with the U.S. Securities and Exchange Commission.
On July 23, 2008, a class action entitled New Jersey Carpenters
Health Fund, et al. v. Lehman XS Trust Series 200S-5N, et al., was
filed in the Supreme Court of the State of New York, County of New
York. On July 29, 2008, the actions were removed to the United
States District Court for the Southern District of New York
pursuant to 28 U.S.C. Sections 1441 and 1446. The case was
assigned Case No. 08-6762. Thereafter, another case (08-10686)
asserting similar causes of action was filed. These actions
allege certain offering documents for issuance of mortgage backed
securities contained material misstatements and omitted material
information in violation of Sections 11, 12, and 15 of the
Securities Act of 1933. These actions are stayed with respect to
any Debtor defendants.
ONTARIO, CA: June 2012 Rideau Settlement Opt-Out Deadline Set
-------------------------------------------------------------
Koskie Minsky LLP released a statement regarding the class action
involving Rideau Regional Centre.
There is a class action lawsuit involving the Rideau Regional
Centre. Rideau was a residential facility located in Smith Falls,
Ontario, that provided care and treatment to persons labeled with
a developmental disability from 1951 to 2009. Rideau was operated
by the Province of Ontario.
The lawsuit says the Province of Ontario failed to properly care
for and protect people who lived at Rideau. The lawsuit says
residents of Rideau were emotionally, physically, and
psychologically traumatized by their experiences at the facility.
The Province of Ontario denies these claims. The Court has not
decided whether the Class or the Province of Ontario is right. The
lawyers for the Class will have to prove their claims in Court.
The Court has appointed the following law firm from Ontario to
represent the Class as "Class Counsel": Koskie Minsky LLP. Class
Counsel, Kirk Baert explains, "Madam Justice Horkins' decision to
certify this class action is a positive step towards achieving
justice for the former residents and their family members," said
Mr. Baert. "The alleged physical and mental abuse that these
former residents endured is very disturbing and we are hoping that
this lawsuit will soon come to a conclusion, so that residents can
finally see justice and compensation in their lifetime." The
lawsuit affects people who were: Rideau residents any time between
1963 and 2009; family members of a Rideau resident between 1978
and 2009; or estate trustees for a Rideau resident between 1963
and 2009 who died after September 24, 2008. There is no money
available now and no guarantee that there will be.
Class Members do not have to pay Class Counsel, or anyone else, in
order to participate. If any money or benefit is obtained, Class
Counsel will request fees and costs from the Court, which would be
deducted from any money obtained, or paid separately by the
Province of Ontario. Class Members may hire their own lawyer to
appear in Court, with leave of the court, on their behalf at their
own expense.
Class Members do not need to do anything to stay in the Class.
They will be legally bound by all orders and judgments of the
Court, and cannot sue the Province of Ontario about the legal
claims in this case. If money or benefits are obtained, they will
be notified about how to ask for a share. Staying in the Class
will not impact the residence or services and supports received by
Class Members from community based agencies funded by the Province
of Ontario.
Class Members who want to keep the right to sue the Province of
Ontario over the claims in this case need to opt out or remove
themselves from the Class. They will not get any money or
benefits if any are awarded. All requests to be removed must be
made in writing postmarked no later than June 19, 2012. Details
on how to be removed can be found at
http://www.rideauclassaction.ca
Some Class Members may have difficulty reading, so we are asking
for the help from family members, caregivers and friends of former
residents in getting information to them. Please show this notice
to people who are impacted by this lawsuit or to their caregivers.
More detailed information on this lawsuit is available on the
Web site at http://www.rideauclassaction.ca
You may also call toll-free 1-800-305-2942 (TTY: 1-877-627-7027);
write to: Rideau Class Action Administrator, 3-505, 133 Weber
Street North, Waterloo, Ontario, N2J 3G9; or e-mail:
rideau@crawco.ca
Class Members who are having a difficult time dealing with the
issues in this lawsuit can call 1-800-305-2942 (TTY: 1-877-627-
7027) for assistance.
For further information: David Rosenfeld, +1-416-595-2700
Web Site: http://www.rideauclassaction.ca
PANDORA MEDIA: Faces Class Suits Over Privacy Issues
----------------------------------------------------
Pandora Media, Inc., is facing class action lawsuits in various
states relating to the use of Android mobile applications, as well
as iPhone and iPad applications, according to the Company's
September 2, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 31, 2011.
Between December 2010 and February 2011, three putative class
action lawsuits were filed against Pandora in the U.S. District
Court for the Northern District of California, alleging that it,
along with other defendant corporations, unlawfully accessed and
transmitted personally identifiable information of the plaintiffs
in connection with their use of iPhone and iPad applications, and
seeking damages and injunctive relief. These three cases were
subsequently consolidated into one matter, In re iPhone
Application, and Pandora was not named as a defendant in the
amended consolidated complaint, although the Company is still
subject to discovery requests.
On December 30, 2010, a similar putative class action lawsuit was
filed in the Superior Court of the Province of Quebec, District of
Montreal, Canada. On April 1, 2011, plaintiffs' counsel confirmed
to Pandora's counsel that plaintiffs concede Pandora's application
cannot be downloaded in Canada and therefore plaintiffs will, as
soon as the court's procedures permit, file a voluntary dismissal
of the complaint as against Pandora.
On January 7, 2011, a putative class action lawsuit was filed
against Pandora in the Circuit Court of Washington County,
Arkansas, seeking damages for the alleged unauthorized access and
use of plaintiffs' computers through the placement of embedded
Adobe Flash cookies.
Between March and June 2011, six putative class action lawsuits
were filed against Pandora in the U.S. District Courts for the
Southern District of New York, the District of Alabama, the
Central District of California, and the District of Puerto Rico
alleging that it, along with other defendant corporations,
unlawfully accessed and transmitted personally identifiable
information of the plaintiffs in connection with their use of
iPhone and iPad applications, and seeking damages and injunctive
relief. Petitions have been filed to transfer all of these
actions to the Northern District of California to be litigated
together with the In re iPhone Application case.
In May 2011, a putative class action lawsuit was filed in the
United States District Court for the Middle District of Florida
against Google, Inc. In June 2011, the complaint was amended to
name Pandora as a defendant. The complaint alleges that the
defendant class created, collected or transferred user location
data or other sensitive user information to Google and seeks
damages and injunctive relief. The complaint has not been served
upon Pandora.
In June 2011, a putative class action lawsuit was filed against
Pandora in the United States District Court for the Northern
District of California alleging that it unlawfully accessed and
transmitted personally identifiable information of the plaintiffs
in connection with their use of the Company's Android mobile
application.
In July 2011, a putative class action lawsuit was filed against
Pandora in the United States District Courts for the Northern
District of California alleging that it, along with other
defendant corporations, unlawfully accessed and transmitted
personally identifiable information of the plaintiffs in
connection with their use of iPhone and iPad applications.
In addition to civil liability, the privacy lawsuits include
allegations of violations of criminal statutes, and if the Company
were found liable, there would be additional risk of criminal
penalties. Each of these cases is at an early stage and the
Company has not had time to fully investigate the allegations.
However, the Company currently believes that it has substantial
and meritorious defenses to these claims and intends to vigorously
defend its position.
POTTERY BARN: Recalls 82,300 Dolls Due to Strangulation Hazard
--------------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with Pottery Barn Kids, a division of Williams-Sonoma
Inc., of San Francisco, California, announced a voluntary recall
of about 81,000 units of Chloe, Sophie and Audrey soft dolls in
the United States of America and 1,300 in Canada. Consumers
should stop using recalled products immediately unless otherwise
instructed. It is illegal to resell or attempt to resell a
recalled consumer product.
The hair on the Chloe and Sophie dolls may contain loops that are
large enough to fit around a child's head and neck, and the
headband on the Audrey doll, if loosened, can form a loop that
fits around a child's head and neck. These loops can pose a
strangulation hazard.
The firm has received five reports of dolls with looped hair,
including one report in which a loop of the Chloe doll's hair was
found around the neck of a 21-month old child. The child was not
injured.
This recall involves soft dolls sold under the names Audrey, Chloe
and Sophie. The dolls measure about 17 inches high and have hair
made of yarn. Audrey's hair is black, Chloe's hair is dark brown
and Sophie's hair is blonde. The dolls are part of Pottery Barn
Kids' Girl Doll Collection. The doll's name can be found on a tag
sewn onto her bottom. Pictures of the recalled products are
available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11321.html
The recalled products were manufactured in China and sold
exclusively at Pottery Barn Kids stores nationwide, online at
http://www.potterybarnkids.com/and through Pottery Barn Kids
catalogs from July 2006 to April 2011 for about $40.
Consumers should take the dolls away from children immediately and
cut the looped hair of the Chloe and Sophie dolls and remove the
headband of the Audrey doll to eliminate the hazard. Consumers
may also call Pottery Barn Kids for instructions on how to return
the affected dolls for a merchandise credit. For additional
information, contact Pottery Barn Kids toll-free at (855) 880-4504
between 4:00 a.m. and 9:00 p.m. Pacific Time seven days a week or
visit the firm's Web site at http://www.potterybarnkids.com/
PRIMARY RESIDENTIAL: Accused of Not Paying Overtime Pay in Calif.
-----------------------------------------------------------------
Marcus Buchanan on behalf of himself and classes of those
similarly situated v. Primary Residential Mortgage, Inc., Case No.
3:11-cv-04476 (N.D. Calif., September 8, 2011) is a class action
lawsuit brought on behalf of current and former employees, who are
or were Mortgage Loan Officers within the state of California, who
were denied overtime compensation and who were unreimbursed for
business expenses and losses.
The Plaintiff alleges that Primary Residential failed to pay
appropriate overtime compensation to each member of the Classes as
required by state and federal laws. The Plaintiff seeks relief
for the Classes under the Fair Labor Standards Act and California
laws, to remedy the Defendant's failure to pay all wages due, pay
appropriate overtime compensation, and follow the laws'
recordkeeping requirements, in addition to injunctive relief.
Mr. Buchanan is a resident of Santa Rosa, California. He was
employed by the Defendant as a Mortgage Loan Officer in its
Petaluma branch from May 2010 to December 2010.
Primary Residential is a Utah corporation with its principal place
of business located at 4750 Wiley Post Way, Suite 200, in Salt
Lake City, Utah.
The Plaintiff is represented by:
Robert Walter Ottinger, Esq.
THE OTTINGER FIRM P.C.
One Market Spear Tower, Suite 3600
San Francisco, CA 94105
Telephone: (415) 293-8223
Facsimile: (415) 520-0555
E-mail: robert@ottingerlaw.com
STATE OF INDIANA: Attorney Discusses State Fair Tragedy Settlement
------------------------------------------------------------------
Aishah Hasnie, writing for fox59.com, reports that Indiana's
Attorney General announced on Sept. 7 that families of victims who
died in the state Fair Tragedy and those who were seriously
injured will get first priority when the state hands out money
from its Tort Claim Fund.
Current Indiana law caps the amount of settlements that can be
paid out of the Fund to a total $5 million per incident.
Anyone else that has filed a claim will have to wait, but
Indianapolis attorney Irwin Levin believes their time will also
come. Mr. Levin is one of the attorneys representing a class
action lawsuit which includes people who say they were emotionally
or psychologically hurt by the stage collapse. He said they have
a case, even if they're not the state's priority right now.
"Those claims are not as significant from a monetary standpoint as
those who were physically devastated, but those are claims that
Indiana law recognizes."
Mr. Levin said they are entitled to state funds, because there was
a physical impact to their claim as required by state law.
"It doesn't apply to everyone who was at the concert," he
explained. "It would include people who were hit, for example, by
debris or by dirt; who were very close to the stage. And from
that, if they can show that they had a psychological impact, that
they had counseling, that it really impacted their lives, they too
would have claims."
Mr. Levin applauded the announcement on Sept. 7, adding that
prioritizing victims was the right thing to do. He said he looks
forward to working with the state to claim settlements for his
clients as well, although he's not sure when exactly that will
happen.
"I'm encouraged that something fair and equitable will be worked
out," said Mr. Levin. "That's all we've ever asked for since we
started this case."
TARGET CORP: Recalls to Repair 447,000 Embark Resistance Cords
--------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Target Corporation, of Minneapolis, Minnesota, announced a
voluntary recall of about 447,000 Embark Resistance Cords and Cord
Kits. Consumers should stop using recalled products immediately
unless otherwise instructed. It is illegal to resell or attempt
to resell a recalled consumer product.
A black plastic ball attached to the resistance cord's door anchor
can unexpectedly release and strike the user, posing an injury
hazard to consumers.
Target has received three reports of incidents in which consumers
were struck in the eye by the door anchor ball. Two incidents
resulted in permanent vision loss, and the severity of the injury
in the third incident is unknown.
This recall involves Embark brand individual resistance cords and
cord kits. The resistance bands are made of green, blue or black
rubber with black foam handles and a door attachment. A strap of
nylon webbing is looped onto the band with a plastic ball attached
or encased that serves as a door anchor. "Embark" is printed on
either the black strap attached to the foam handle or on the
middle of the rubber cord itself.
Style Description
-----------------
Embark Light (tension) Resistance Cord (green)
Embark Medium (tension) Resistance Cord (blue)
Embark Heavy (tension) Resistance Cord (black)
Embark Resistance Cord kit (set of 3 cords in
green/blue/black stored in a mesh bag)
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml11/11320.html
The recalled products were manufactured in China and sold
exclusively at Target stores nationwide and Target.com from July
2009 through August 2011 for between $10 and $20.
Consumers should immediately stop using the resistance cords and
remove the door anchor strap before resuming use or contact the
company to receive instructions to repair the cords to eliminate
the hazard. For additional information, contact Target Guest
Relations at (800) 440-0680 between 7:00 a.m. and 6:00 p.m.
Central Time Monday through Friday, or visit the firm's Web site
at http://www.target.com/
USTA: Umpires File Class Action Over Wage & Hour Violations
-----------------------------------------------------------
Four umpires have filed a class and collective action lawsuit
against the United States Tennis Association (USTA) for wage and
hour violations. The case was filed in the United States District
Court for the Southern District of New York (Case No. 11-Civ-6268)
on behalf of persons who worked as umpires in the main draw and in
qualifying matches at the USTA Billie Jean King National Tennis
Center during the U.S. Open tennis tournaments held in 2005
through 2011.
The U.S. Open is held annually in New York City in late August and
early September. It is one of four "Grand Slam" tournaments that
are the highlights of the year for professional tennis players.
In 2011, the U.S. Open will award players more than $23,000,000 in
total prize money. The USTA employs about three hundred umpires
in total during the tournament, who come from all over the United
States and many foreign countries.
The umpires claim that, in the years 2005 through 2011, the USTA
violated federal and/or state wage and hour laws by failing to pay
the umpires all wages due including overtime.
Ms. Spanier, one of plaintiffs' counsel, said: "The umpires, who
are integral to the success of the U.S. Open, have been treated
unfairly for years. They work long hours for low pay at the
center of a Grand Slam that generates huge revenues for the USTA.
This suit has been brought to enable them to collectively assert
their statutory rights."
Co-Counsel Mitchell Schley stated: "It was frankly surprising to
learn how woefully little the umpires are paid when viewed against
the high ticket prices, level of prize money and the very generous
compensation USTA executives take for themselves. Hopefully, this
class action will force the USTA to at least abide by federal and
state labor laws in the manner it compensates umpires."
Judith L. Spanier of Abbey Spanier Rodd & Abrams, LLP, and the Law
Offices of Mitchell Schley, LLC, represent the plaintiffs. The
lawsuit seeks collective and class action status, and monetary
damages.
WACHOVIA: Nov. 14 Class Action Settlement Fairness Hearing Set
--------------------------------------------------------------
Bernstein Litowitz Berger & Grossmann LLP, Kessler Topaz Meltzer &
Check, LLP and Robbins Geller Rudman & Dowd LLP issued a statement
regarding In re Wachovia Preferred Securities and Bond/Notes
Litigation, Master File No. 09 Civ. 6351 (RJS) (S.D.N.Y.).
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
IN RE WACHOVIA PREFERRED SECURITIES AND BOND/NOTES LITIGATION,
Master File No. 09 Civ. 6351 (RJS)
SUMMARY NOTICE OF (I) PENDENCY OF CLASS ACTION; (II) PROPOSED
SETTLEMENTS AND PLAN OF ALLOCATION; (III) SETTLEMENT FAIRNESS
HEARING; AND (IV) MOTION FOR AN AWARD OF ATTORNEYS' FEES AND
REIMBURSEMENT OF LITIGATION EXPENSES
TO: All persons and entities who purchased or otherwise acquired
any of the following securities (the "Bond Class Securities")
issued by Wachovia Corporation ("Wachovia") or its affiliates from
the dates they were first offered to the public for sale through
and including February 27, 2009, and were damaged thereby:
6.375% Wachovia Capital
Trust IV Trust Preferred Three-Month LIBOR Floating Rate
Securities Subordinated Notes
(CUSIP 92978U207) Due October 15, 2016 (CUSIP 929903CJ9)
6.375% Wachovia Capital
Trust IX Trust Preferred Three-Month LIBOR Floating Rate Senior
Securities Notes Due December 1, 2009
(CUSIP 92978X201) (CUSIP 92976WBC9)
7.85% Wachovia Capital
Trust X Trust Preferred Three-Month LIBOR Floating Rate Notes
Securities Due April 23, 2012 (CUSIP 929903DF6)
(CUSIP 92979K208)
8.00% Non-Cumulative
Perpetual Class A Three-Month LIBOR Floating Rate Notes
Preferred Due June 15, 2017 (CUSIP 929903DU3)
Stock, Series J
(CUSIP 929903276)
Fixed-to-Floating Rate
Non-Cumulative Perpetual 5.75% Notes Due June 15, 2017
A Preferred Stock, Series (CUSIP 929903DT6)
K (CUSIP 929403243, later
denominated 929903EF5) Three-Month LIBOR Floating Rate Notes
Due July 26, 2010 (CUSIP 92976WBD7)
7.50% Non-Cumulative
Perpetual Convertible
Class A
Preferred Stock, Series L Three-Month LIBOR Floating Rate Notes
(CUSIP 929903219) Due August 20, 2009 (CUSIP 929903EC2)
Three-Month LIBOR
Floating Rate Notes Due
August 1, 2013 (CUSIP 92976WBB1)
Three-Month LIBOR Floating Rate Notes
Due November 24, 2009
(CUSIP 92976WBG0)
5.70% Notes Due August 1,
2013 (CUSIP 92976WBA3)
5.75% Notes Due February 1,2018
(CUSIP 92976WBH8)
Three-Month LIBOR
Floating Rate Notes Due
October 15, 2011 (CUSIP 929903CG5) 5.50% Fixed Rate Notes
Due May 1, 2013
(CUSIP 92976WBJ4)
5.30% Notes Due
October 15, 2011
(CUSIP 929903CF7)
Three-Month LIBOR Floating Rate Notes
Due May 1, 2013 (CUSIP 92976WBK1)
5.625% Subordinated Notes
Due October 15, 2016
(CUSIP 929903CH3)
The Bond Class Securities do not include Wachovia common stock or
any other securities that are not listed in this notice. Wachovia
common stock is the subject of a separate class action suit, In re
Wachovia Equity Securities Litigation, No. 08 Civ. 6171 (RJS)
(S.D.N.Y.), which is not part of the Settlements described in this
notice.
PLEASE READ THIS NOTICE CAREFULLY, YOUR RIGHTS WILL BE AFFECTED BY
A CLASS ACTION LAWSUIT PENDING IN THIS COURT.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District
Court for the Southern District of New York, (i) that the above-
captioned litigation (the "Action") has been certified as a class
action on behalf of all persons and entities who purchased or
otherwise acquired Bond Class Securities during the time period
from the first date on which any of the Bond Class Securities were
offered through and including February 27, 2009, and were damaged
thereby (the "Settlement Class"), except for certain persons and
entities who are excluded from the Settlement Class by definition
as set forth in the Stipulation and Agreements of Settlement in
the Action (the "Stipulation"); and (ii) that Lead Bond/Notes
Plaintiffs in the Action have reached agreements to settle the
Action for settlement payments totaling $627 million in cash, plus
interest thereon, consisting of (a) a $590 million cash settlement
with the Wachovia Defendants (the "Wachovia Settlement") and (b) a
$37 million cash settlement with defendant KPMG LLP (the "KPMG
Settlement") (collectively, the "Settlements").
A hearing will be held on November 14, 2011 at 4:00 p.m. before
the Honorable Richard J. Sullivan at the United States District
Court for the Southern District of New York, Daniel Patrick
Moynihan United States Courthouse, 500 Pearl Street, Courtroom
21C, New York, NY 10007-1312, to determine (i) whether the
proposed Settlements should be approved as fair, reasonable, and
adequate; (ii) whether the Action should be dismissed with
prejudice against the Defendants, and the releases specified and
described in the Stipulation should be granted; (iii) whether the
proposed Plan of Allocation should be approved as fair and
reasonable; and (iv) whether Lead Bond/Notes Counsel's application
for an award of attorneys' fees and reimbursement of expenses
should be approved.
If you are a member of the Settlement Class, your rights will be
affected by the pending Action and the Settlements, and you may be
entitled to share in the Settlement Fund. If you have not yet
received the full printed Notice of (I) Pendency of Class Action;
(II) Proposed Settlements and Plan of Allocation; (III) Settlement
Fairness Hearing; and (IV) Motion for an Award of Attorneys' Fees
and Reimbursement of Litigation Expenses (the "Notice"), and the
Proof of Claim and Release form ("Claim Form"), you may obtain
copies of these documents by contacting the Claims Administrator:
In re Wachovia Preferred Securities and Bond/Notes Litigation, c/o
The Garden City Group, Inc., Claims Administrator, P.O. Box 9805,
Dublin, Ohio 43017-5705, 1-888-624-6713. Copies of the Notice and
Claim Form can also be downloaded from the Web site maintained by
the Claims Administrator, http://www.wachoviabondlitigation.com
If you are a member of the Settlement Class, in order to be
eligible to receive a payment under the proposed Settlements, you
must submit a Claim Form postmarked no later than December 28,
2011. If you are a member of the Settlement Class and do not
submit a proper Claim Form, you will not share in the distribution
of the net proceeds of the Settlements but you will nevertheless
be bound by any judgments or orders entered by the Court in the
Action.
If you are a member of the Settlement Class and wish to exclude
yourself from the Settlement Class, you must submit a request for
exclusion such that it is received no later than October 25, 2011,
in accordance with the instructions set forth in the Notice. If
you properly exclude yourself from the Settlement Class, you will
not be bound by any judgments or orders entered by the Court in
the Action and you will not be eligible to share in the proceeds
of the Settlements.
Any objections to any aspect of the proposed Settlements, the
proposed Plan of Allocation, or Lead Bond/Notes Counsel's
application for an award of attorneys' fees and reimbursement of
expenses, must be filed with the Court and delivered to designated
representative Lead Bond/Notes Counsel and counsel for the
relevant Settling Defendants such that they are received no later
than October 25, 2011, in accordance with the instructions set
forth in the Notice.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. Inquiries, other than requests for the Notice and
Claim Form, may be made to Lead Bond/Notes Counsel:
William C. Fredericks, Esq.
BERNSTEIN LITOWITZ BERGER & GROSSMANN LLP
1285 Avenue of the Americas
New York, NY 10019
Telephone: (800) 380-8496
E-mail: blbg@blbglaw.com
David Kessler, Esq.
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: (610) 667-7706
E-mail: info@ktmc.com
John J. Rice, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
655 West Broadway, Suite 1900
San Diego, CA 92101
Telephone: (800) 449-4900
E-mail: rickn@rgrdlaw.com
By Order of the Court
WELLS FARGO: Judge Denies Class-Action Status to Mortgage Suit
--------------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that Wells Fargo &
Co. won a court ruling denying class-action status to more than 1
million black and Hispanic borrowers in a lawsuit accusing it of
discriminating on mortgage rates and fees.
Citing a recent landmark U.S. Supreme Court ruling in favor of
Wal-Mart Stores Inc., U.S. District Judge Maxine Chesney in San
Francisco said the Wells Fargo borrowers had too many differences
to justify grouping them together in a single lawsuit against the
largest U.S. mortgage lender.
The ruling on Sept. 6 could force borrowers to pursue their claims
individually or in smaller groups, which could result in higher
costs and lower recoveries, or cause some plaintiffs to drop their
claims altogether.
In the case, six plaintiffs said Wells Fargo's "discretionary loan
pricing procedures" allowed loan officers to impose higher rates,
points and fees on minority borrowers than on white borrowers with
similar credit profiles.
Citing an analysis by an outside expert, the plaintiffs said this
practice had a disparate impact on black and Hispanic borrowers,
and violated the federal Fair Housing Act and Equal Credit
Opportunity Act. They sought to certify a class of borrowers from
2001 to the present.
But Judge Chesney said the plaintiffs failed to show there was any
"common mode" by which loan officers exercised discretion to
charge them more. She added that discretion "may have been
exercised differently" in each borrower's case.
"Merely showing that a defendant's policy of discretion has
produced an overall race-based disparity does not suffice" for
certification as a class-action, the judge wrote.
In its June 20 ruling in Wal-Mart Stores Inc v. Dukes, a divided
Supreme Court threw out a class-action lawsuit on behalf of as
many as 1.5 million female workers who accused the retailer of
giving them lower pay and fewer promotions than men. It said the
claims would have too little in common, having arisen from
millions of employment decisions in 3,400 stores.
Gary Klein, a lawyer for the Wells Fargo plaintiffs, said his firm
is evaluating options for them. "Denial of class certification is
going to make further prosecution of the case difficult," said
Mr. Klein, a partner at Roddy Klein & Ryan in Boston. "Dukes
certainly made our job much harder."
A Wells Fargo spokeswoman, Vickee Adams, said the bank is pleased
with Judge Chesney's "well-reasoned" decision.
Wells Fargo has faced other allegations it discriminates in home
lending. Earlier this year, federal judges in Baltimore and
Memphis, Tennessee rejected the bank's requests to dismiss
lawsuits accusing it of steering black borrowers into home loans
they could not afford, resulting in more foreclosures.
The cases are In re: Wells Fargo Residential Mortgage Lending
Discrimination Litigation, U.S. District Court, Northern District
of California, No. 08-md-01930; City of Memphis et al v. Wells
Fargo Bank NA et al, U.S. District Court, Western District of
Tennessee, No. 09-02857; and Mayor and City Council of Baltimore
v. Wells Fargo Bank NA et al, U.S. District Court, District of
Maryland, No. 08-00062.
* Second Order Procedures in Class Actions Drag U.S. Economy
------------------------------------------------------------
Yall Politics reports that when it comes to resolving contract
disputes, the U.S. and other industrialized nations do a far
better job than emerging economies. The typical contract dispute
consumes about 300 days and 24% of the value at stake, the authors
conclude, compared with 400 days and 50% in Sub-Saharan Africa.
Where the U.S. diverges from virtually every country is its
treatment of mass torts and class actions, procedures the authors
call "second order."
In the typical accident or contract claim, U.S. courts do
reasonably well. They may face somewhat more litigation than
other rich democracies, but not much. In the second-order cases,
however, the U.S. courts entertain claims that courts in other
well-functioning economies would dismiss in short order. In the
process, they necessarily create a drag on American business.
Relatively few countries even allow class actions (Brazil and
Canada do, although few cases are filed) and the track record of
jailed mass-tort and class action lawyers like Dickie Scruggs,
Bill Lerach and Mel Weiss speaks to the deep corruption that is
always lurking around this form of litigation.
Given the trivial size of their claim, few victims pay attention
to settlement bargaining. The defendant can take advantage of
that by negotiating a settlement that is generous to the lawyers
and stingy to his clients. The attorney agrees to take a generous
fee, always in cash, and a much smaller recovery for his clients,
often "in-kind" as free samples of the defendant's product.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania,
USA, and Beard Group, Inc., Frederick, Maryland USA. Leah
Felisilda, Noemi Irene A. Adala, Joy A. Agravante, Julie Anne
Lopez, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.
Copyright 2011. All rights reserved. ISSN 1525-2272.
This material is copyrighted and any commercial use, resale or
publication in any form (including e-mail forwarding, electronic
re-mailing and photocopying) is strictly prohibited without prior
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Information contained herein is obtained from sources believed to
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are $25 each. For subscription information, contact Christopher
Beard at 240/629-3300.
* * * End of Transmission * * *