/raid1/www/Hosts/bankrupt/CAR_Public/110915.mbx              C L A S S   A C T I O N   R E P O R T E R

           Thursday, September 15, 2011, Vol. 13, No. 183


S8 LIMITED: Phoenician Unit Owners Urged to Join Class Action
APPLE INC: Faces More Suit Over eBook Conspiracy With Publishers
APPLE INC: Defends Bid for Arbitration in iPhone Class Action
BLUEPAPA JOHN'S: Hides Delivery Driver Class Action Burden
COCHLEAR LTD: Recalls Nucleus CI500 Hearing Implants

CONTINUCARE CORP: Signs MOU to Settle Merger-Related Suits
CSX TRANSPORTATION: 6th Upholds Summary Judgment in Class Action
DISTRICT OF COLUMBIA: Class Action Settlement Gets Initial Okay
FOOT LOCKER: Still in Mediation to Resolve Wage and Hour Suits
GAP INC: Continues to Defend Class Action Lawsuits

GOV'T OF CANADA: Quebec Flood Victims Mull Class Action
MEDIA COS: Strikes Deal to Resolve Text Contest Class Action
MORGAN KEEGAN: 6th Cir. Upholds Dismissal of Fraud Class Action
PHARMERICA CORP: Sued Over Board's Refusal to Sell to Omnicare
PROCTER & GAMBLE: Faces Class Action Over Neat Squeeze Dispenser

REFINERY TERMINAL: Faces Class Action Over Unpaid Overtime
STATE OF IOWA: Trial in Discrimination Class Action Begins
TOYOTA MOTORS: Says It Has Right to Due Process in Class Action
VAUGHAN FOODS: Settles Class Action Over Proposed Reser's Merger
ZIPLOCAL: Breach of Contract Class Action Can Proceed


S8 LIMITED: Phoenician Unit Owners Urged to Join Class Action
Mark Bode, writing for Sunshine Coast Daily, reports that owners
of units on the Sunshine Coast previously managed by S8 Limited
are being urged to launch a class action against the company over
undisclosed rental charges.

Unit Owners Association of Queensland president Wayne Stevens has
been contacting owners since receiving legal advice suggesting
they may be able to recover a "significant amount of money".

It is the latest salvo in Mr. Stevens' eight-year battle to
recover what he says is hundreds of millions of dollars in wrongly
claimed commissions -- a practice that he claims is rife in
Queensland and a major hindrance to investor confidence.

In December, the Office of Fair Trading settled almost 3000
charges against S8 subsidiary Driftcove Pty Ltd for double
handling holiday bookings.

Without admitting liability, Driftcove was forced to pay OFT's
costs and pay unit owners at a Gold Coast complex, Phoenician,
more than $25,000.  The company's director, Christopher Scott,
admitted guilt and was fined $130,000.

"Having regard to the seriousness and scale of the problem for
unit owners, and the corresponding unearned profits retained by
Driftcove-S8, they got off very lightly to the obvious convenience
of OFT,"  Mr. Stevens said in a letter to Phoenician units owners
in which he urged them to join the class action.

Mr. Stevens, past chairman of the Phoenician body corporate, on
Sept. 12 called on Sunshine Coast unit owners to sign up to the

"We want to recover the money that was unlawfully deducted from
owners' rental income, and to clarify the conduct that continues
to allow letting agents to withhold undisclosed commissions," he

Coast-based properties that were under S8 management include
Sirocco, Seamark and Zanzibar in Mooloolaba, South Pacific Resort
in Noosa and Marcoola Beach Resort.

OFT executive director Brian Bauer stated publicly that it was
illegal to charge booking fees or direct bookings to another
company for the purpose of charging a fee.

But Mr. Stevens said the practice of deducting undisclosed booking
fees of up to 30% of rental income continued unabated.

He claimed S8's property management structure allowed it to take
an undisclosed commission for bookings before passing the
reservations on to Driftcove to subtract a second commission.

The total amount of commission taken by S8 and the rent paid by
the holidaymaker is not disclosed to the owner.

S8 is now part of travel and hospitality company Stella Group, and
is now known as Stella Travel Services Group.

APPLE INC: Faces More Suit Over eBook Conspiracy With Publishers
Eugenia Ruane-Gonzales, and all others similarly situated v. Apple
Inc.; Hachette Book Group, Inc.; HarperCollins Publishers, Inc.;
Macmillan Publishers, Inc.; Penguin Group (USA) Inc.; Simon and
Schuster, Inc.; and A and Does 1-100, Case No. 4:11-cv-04500 (N.D.
Calif. September 9, 2011) alleges violation of federal antitrust
laws.  The Plaintiff contends that the case involves the
artificial inflation of the retail price of electronic books by
the Publisher Defendants.

In conjunction with Apple, the Publisher Defendants conspired to
change the way in which eBooks are sold so that they could
maintain and increase their profits, which they feared were being
jeopardized by the pricing implemented by Amazon.com, Ms. Ruane-
Gonzales alleges.  She points out that Apple was integral to the
conspiracy because it provided the Publisher Defendants with the
leverage necessary to compel Amazon and other eBooks retailers to
accept a new pricing model that favored the Publisher Defendants
to the detriment of consumers.

Ms. Ruane-Gonzales is a resident of San Francisco, California.
She purchased numerous eBooks at a price above $9.99 from a
Publisher Defendant for use on her Kindle.  She contends that she
paid more for her eBooks as a direct and foreseeable result of the
Defendants' unlawful conduct.

The Plaintiff is represented by:

          Harry Shulman, Esq.
          SHULMAN LAW
          44 Montgomery Street, Suite 3830
          San Francisco, CA 94104
          Telephone: (415) 901-0505
          Facsimile: (866) 422-4859
          E-mail: harry@shulmanlawfirm.com

               - and -

          William H. London, Esq.
          Douglas A. Millen, Esq.
          2201 Waukegan Road, Suite 130
          Bannockburn, IL 60015
          Telephone: (224) 632-4500
          Facsimile: (224) 632-4519
          E-mail: blondon@fklmlaw.com

APPLE INC: Defends Bid for Arbitration in iPhone Class Action
Nick McCann at Courthouse News Service reports that Apple and AT&T
continued to defend arbitration as the best means to sort out
whether they illegally restricted the carrier choices of iPhone
customers, fighting a proposed class action.

Lead plaintiffs Paul Holman and Lucy Rivello filed a federal
complaint against Apple and AT&T Mobility (ATTM) in October 2007,
claiming the companies illegally controlled consumer choices by
limiting iPhone users to AT&T plans.  A San Jose federal judge
certified their class action last year.

AT&T and Apple said last month that the lawsuit should be
arbitrated and the class should be decertified because the "entire
theory rests on a single, unified course of conduct."

"Plaintiffs have wrapped themselves for years in the service
contract and in allegations of a single ATTM-Apple conspiracy to
survive motions to dismiss and obtain class certification,"
according to Apple's motion to compel arbitration.  "They cannot
run from those theories now."

Attorneys for both companies filed new motions last week to compel
arbitration, decertify the class and stay the proceedings.

Apple attorney Daniel Wall said the plaintiffs' case has always
been built around their wireless service agreement, and they
cannot use that agreement "to prop-up antitrust claims, then use
it again to overcome obstacles to class certification, and yet
deny they are bound by the arbitration clause found in the

Regardless of how the motions to compel arbitration are resolved,
Mr. Wall said the class must be decertified because their entire
theory was based on the wireless agreement.  In their latest
brief, the plaintiffs said that agreement was "merely background,"
Mr. Wall noted.

"That means that plaintiffs misled both defendants and the court
about their theory of the case, the way that they intended to
prove their claims on a class basis, and obtained certification
based on false arguments and premises," the brief states.
"Decertification is plainly appropriate in such circumstances."

Apple also said the iTunes Store's Terms of Service is
"irrelevant" to the class claims because that agreement has
nothing to do with the iPhone wireless agreement.

In another filing supporting the motion to compel arbitration,
AT&T's attorney Donald Falk rejected the class's argument that the
company waived its right to compel arbitration because it did not
appeal to the court's denial of the original motion to compel.

"Class-wide procedures are incompatible with arbitration and
therefore undermine core purposes of the Federal Arbitration Act,"
Falk wrote, citing the recent Supreme Court ruling in AT&T
Mobility v. Concepcion.  "There is no reason for swimming against
this tide of authority here."

A copy of the Defendant Apple Inc.'s Reply in Support of Motion to
Compel Arbitration and for Decertification in In Re Apple & AT&TM
Anti-Trust Litigation, Case No. 07-cv-05152 (N.D. Calif.) (Ware,
J.), is available at http://is.gd/CaDJi5

Apple Inc. is represented by:

          Daniel M. Wall, Esq.
          Alfred C. Pfeiffer, Jr., Esq.
          Christopher S. Yates, Esq.
          Sadik Huseny, Esq.
          505 Montgomery Street, Suite 2000
          San Francisco, CA 94111-6538
          Telephone: (415) 391-0600
          E-mail: dan.wall@lw.com

BLUEPAPA JOHN'S: Hides Delivery Driver Class Action Burden
Janet Sparks, writing for BlueMauMau, reports that BluePapa John's
International is defending itself against a lawsuit brought by the
purchaser of 84 underperforming franchises, Essential Pizza, Inc.
The franchises are a multi-million dollar acquisition between
Blackstreet Capital Management and Essential Pizza.

Essential Pizza claims the franchisor failed to disclose
significant tax expense and liability in the amount of $1.2
million when preparing financial documentation for the sale.  The
multi-unit franchisee alleges there was also additional
liabilities that should have been disclosed including "the
crippling burden of fighting extensive class action litigation" by
Papa John's delivery drivers.  He states, "Papa John's negligently
opened itself and its franchisees up to liability for wage
violations related to complying with minimum wage laws" with its
policy of charging a set "delivery fee" to customers for every

In the amended complaint filed July 7, 2011 in Minnesota District
Court, Hennepin County, Essential Pizza also made separate claims
against seller Blackstreet Capital, a private equity firm that
focuses on controlled buyouts of underperforming "corporate
orphans" between $25 and $150 million in revenues.  Blue MauMau
has since learned that Essential Pizza, through its lead attorneys
Zarco Einhorn Salkowski & Brito, filed a joint stipulation for
dismissal with prejudice to voluntarily remove the equity firm and
two named individuals from its lawsuit.

Papa John's takes a different view on the litigation.

Vice president and senior counsel Caroline Oyler said the action
stems from a dispute between the two franchisees related to the
purchase and sale of Papa John's restaurants in Minnesota and
Colorado.  "Papa John's was not involved in that transaction.
While Papa John's introduced the buyer and seller, as is common in
the restaurant franchising industry, we did not negotiate the
terms of the sale, and we were not parties to the agreement,"
Ms. Oyler adamantly declared.  She explained that the current
franchisee, Essential Pizza, has not been able to achieve the
success it had hoped for when it made its purchase, and is now far
behind on royalties and amounts owed to Papa John's and others.
"In our view, they are looking for others to blame, including Papa
John's, for their own inability to operate the business," she

Ms. Oyler said she knew nothing about Blackstreet Capital being
dismissed from the litigation.

Blackstreet Capital Management formed PJCOMN Acquisition
Corporation in 2005 to purchase the restaurants in Minnesota and
Colorado directly from Papa John's International.  The equity
firm's intention was to revive the underperforming stores through
improved operations.  But as it operated the pizza shops in those
markets, Blackstreet continued to lose money, and in 2007 it began
looking at ways to rid itself of all 84 stores.

The complaint states that the litigation evolved after Papa John's
president Bill Van Epps approached Brian Mills, principal of
Essential Pizza, Inc., in 2007 about forming a venture to purchase
the Papa John's stores in Minnesota and Colorado.  Mr. Epps sold
the acquisition as "an excellent deal and opportunity," repeatedly
telling Mills that the Minnesota market was a "diamond in the
rough."  He said the stores would perform well with an experienced
operator like Mr. Mill's company at the helm.

When Mr. Mills showed an interest, Papa John's moved forward with
the deal, acting as the de facto broker and liaison between
Essential Pizza and Blackstreet Capital Management.  Because
Mr. Mills was not in a financial position to purchase restaurants,
Papa John's became involved in the deal, offering Mr. Mill's
company supplementary financing through a "franchise assistance
agreement."  When the acquisition was finalized by means of a
stock sale, Essential Pizza became the owners of the 84 Papa
John's units, and became indebted to Papa John's, Blackstreet
Capital and lender GE Capital Franchise Finance for millions.

Documents prepared by the franchisor on behalf of Blackstreet
Capital allegedly failed to disclose a significant tax expense and
liability in the amount of $1.2 million, as well as additional
unrecorded liabilities in the amount of $700,000-plus.  In the
stock purchase agreement, Blackstreet warranted that its
disclosures fairly and accurately presented the assets and
liabilities of the company it sold.

In 2008 and 2009, Essential Pizza principals became aware of
previously undisclosed liabilities as they received unpaid
invoices attributable to Blackstreet prior to the sale closing.
At a meeting in 2010, Papa John's executives informed Mills and
partner Cliff Harris that the company would write off $1 million
in deferred royalties that they allegedly owed to the franchisor.
In return, Essential Pizza owners, in a show of being a team
player and a good corporate citizen, paid out of their own pocket
to settle outstanding liabilities to Blackstreet.  But according
to the lawsuit, Papa John's then changed its position and refused
to forgive the royalty payments originally promised.

Essential Pizza asserts that Papa John's misrepresentations and
lack of disclosure caused the business to be overvalued and the
price over-inflated.  Additionally, it states that it is likely GE
Capital Franchise Finance would not have granted its company a
loan if accurate financial expense and liability disclosures had
been made.

Essential Pizza asserts that one of the biggest disclosure
blunders Papa John's made was not informing them of potential
liability posed by pizza delivery drivers because of violations of
federal and state wage laws.  They state that Papa John's kept
close watch on litigation against Pizza Hut, alleging it was not
complying with minimum wage labor laws when it failed to reimburse
drivers for costs incurred on the job.

After purchasing the 84 stores in 2007, Essential continued Papa
John's practice of charging a set "delivery fee" to customers.
Their lawsuit states that typical industry practice is that
delivery charges should be retained by the pizza restaurant.  The
charges should not be used for employee compensation.  Papa John's
franchise agreements required that royalties be paid to Papa
John's on all delivery fees collected by franchisees, and
Essential Pizza was no exception.

The complaint explains that Minnesota law has ruled for over
twenty years that "gratuities" are the property of employees.
Employers may not credit employee gratuities toward the payment of
employee minimum wage.  Because the law clearly states that the
nature of delivery charges must be disclosed on Web sites or pizza
boxes, Papa John's knew or should have known it was not in
compliance with state law.  Papa John's system requires that
owners retain delivery fees and pay royalties on them, knowing
that Essential Pizza was at risk for liability.

The sale was conditioned on Essential Pizza obtaining insurance
policies for all of the stores only through Risk Services
Corporation, an insurance broker that is a wholly owned affiliate
of Papa John's, from which it derives substantial revenue.  The
pizza franchisor represented that this arrangement was
advantageous to Essential because Risk Services had a specialized
protection program for franchisees that would protect against the
"relevant risks incurred in operating a Papa John's store."

In July 2009, Shane Bass and other delivery drivers filed a class
action complaint in Colorado district court against Essential
Pizza seeking damages on a wage violation identical to that
alleged in the Pizza Hut case.  The franchisee then submitted a
claim to Risk Services.

The insurer refused to pay that claim.

Another delivery driver filed a class action lawsuit against
Essential Pizza Hut in Minnesota federal court in September 2010,
alleging federal and state wage violations.  In particular, he
claims that the delivery fee charged by the Minnesota Papa John's
stores was legally a driver's gratuity, according to state law.

Essential notified Risk Services of the litigation and requested
that the insurer indemnify and defend Essential in the lawsuit
under its employment practices liability policy.  Three months
later, Risk Services notified the franchisee that the
"specialized" insurance package that Papa John's required it to
purchase would not cover the claims.  Specifically, those related
to the franchisor's failure to have conspicuous disclosures on its
Web site and pizza boxes regarding the nature of the delivery fee.

Essential Pizza asserts in its lawsuit that in addition to having
to pay for substantial undisclosed liabilities and having paid an
inflated price for the 84 Papa John's stores, their company is
also now faced with the burden of fighting extensive class action
litigation.  Essential finds itself having to reimburse delivery
fees that were expressly authorized by Papa John's, which Papa
John's collected and received royalty on.

Concerning the delivery drivers class action lawsuits, Ms. Oyler
agreed that it was a big issue in the pizza delivery industry
today.  She said Papa John's had its own lawsuit that is similar
to ones brought against PJCOMN and Essential.  She added, "I have
a hard time making any connection between the lawsuit they have
and us.  That is a real stretch.  Franchisees make their own
decisions and choices on how they compensate their drivers."

As a result of the franchisee's latest actions, Ms. Olyer said
Papa John's filed a federal lawsuit in Kentucky against Essential
Pizza for defaulting on payment of more than $1 million they owe
Papa John's.  The franchisor has also filed a motion to stay and
motion to dismiss the action in Minnesota, which they will put
before the district judge at the October 7 hearing.  In support of
its motion, Papa John's argues that in all of its franchise
agreements the parties agree to arbitrate any disputes in
Louisville, Kentucky.

Ms. Oyler expressed that Papa John's never desires to be in
litigation with its franchisees.  "We have worked with this
franchisee throughout the relationship and have gone above and
beyond in treating its owners fairly."  She said they have given
support in many ways including deferring royalties and trying to
find a buyer for their markets.  She added, "Now that the
franchisee has chosen this course, we will aggressively defend our
rights and pursue what is owed to us.  We have been erroneously
and inappropriately named, and we are confident we will prevail."

COCHLEAR LTD: Recalls Nucleus CI500 Hearing Implants

   * Cochlear issues voluntary recall of unimplanted hearing

   * Recall triggered by unexplained implant failures

   * Analysts warn recall could eat into Cochlear's market share

Gavin Lower at MarketWatch.com reports that the world's biggest
maker of bionic ears, Cochlear Ltd. (COH.AU), on Monday,
September 12, 2011, recalled its latest range of hearing implants
from shelves after a recent unexplained increase in failures.

The voluntary recall of the Nucleus CI500 implants, which Cochlear
says are the world's slimmest titanium hearing implant, will
affect sales in around 75 countries, including the U.S. and

Cochlear shares plunged as much as 27% after Chief Executive Chris
Roberts said the company has stopped manufacture of the range,
which in fiscal 2011 made up 70% of the company's sales of implant
units and had been hailed for boosting sales by 20% in fiscal

Analysts said the recall could lead to prolonged market share
gains for Cochlear's competitors such as the Austria-based Med-El.
Cochlear has about 65% of the global hearing implant market.

"Reliability is very important," Mr. Roberts told analysts on a
conference call.  "If there's some things happening that we don't
understand, we're far, far better to stop and understand it ...
rather than just battle ahead and hope it all works out."

Another rival implant company Sonova Holding AG (SOON.VX) was hurt
last year by a recall of its HiRes 90K device but Cochlear said
the financial impact of its own recall is difficult to predict at
this stage.

The National Institutes of Health in the U.S. puts the total cost
including device, surgery and follow-up care of an implant at
US$60,000, but a company spokesman said the cost varies from
country to country depending on health subsidy and private health
insurance systems.  He declined to say how much it cost Cochlear
to make an implant.

Mr. Roberts said there are about 25,000 registered users of the
CI500 range and the company isn't recalling those products that
have already been implanted.

The company said it identified a recent increase in the number of
Nucleus CI512 implants failing in recent weeks, with less than 1%
of CI512 implants failing since they were launched in 2009.

If failure occurs, the implant safely shuts down without injuring
the recipient, the company said in a statement, adding that if it
does fail, the patient could be re-implanted with the earlier
model Nucleus Freedom implant.  Mr. Roberts, who declined to
speculate on what had caused the devices to fail, said stocks of
the Freedom implant are available with a "good" supply chain
available to react to changes in demand.

Nomura analysts said potential recipients and surgeons were likely
to prefer to use other cochlear implants, rather than Cochlear's
implants in the wake of the recall, potentially leading to market
share gains for Cochlear's competitors.

UBS cut its recommendation on Cochlear from Neutral to Sell and
cut its price target from A$76 to A$60.  The broker said "longer-
term reputational fallout is likely to overhang market willingness
to pay a premium for a previously unblemished market leader."

The company's shares ended the day 20.3% lower, significantly
underperforming the benchmark S&P/ASX 200 which closed 3.7% lower.

CONTINUCARE CORP: Signs MOU to Settle Merger-Related Suits
Continucare Corporation entered into a memorandum of understanding
to settle a consolidated class action lawsuit arising from its
proposed merger with a subsidiary of Metropolitan Health Networks,
Inc., according to the Company's September 7, 2011, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended June 30, 2011.

On June 26, 2011, Continucare entered into an Agreement and Plan
of Merger (the "Merger Agreement") with Metropolitan Health
Networks, Inc. ("Metropolitan") and Cab Merger Sub, Inc., a
Florida corporation and a wholly owned subsidiary of Metropolitan
("Merger Subsidiary"), providing for the merger of Continucare
with Merger Subsidiary.  Subject to the terms and conditions of
the Merger Agreement, which has been unanimously approved by the
boards of directors of the respective parties, Merger Subsidiary
will be merged with and into Continucare (the "Merger"), with
Continucare surviving the Merger as a wholly owned subsidiary of

On July 1, 2011, a putative class action was filed in the Circuit
Court of the Eleventh Judicial Circuit in and for Miami-Dade
County, Florida, by Kathryn Karnell, Trustee and the Aaron and
Kathryn Karnell Revocable Trust U/A Dtd 4/9/09 against
Continucare, the members of the Continucare Board, individually,
Metropolitan, and the merger subsidiary.  Also on July 1, 2011, a
second putative class action was filed in the Circuit Court of the
Eleventh Judicial Circuit in and for Miami-Dade County, Florida,
by Steven L. Fuller against Continucare, the members of the
Continucare Board, individually, Metropolitan, and the merger
subsidiary.  On July 6, 2011, a third putative class action was
filed in the Circuit Court of the Eleventh Judicial Circuit in and
for Miami-Dade County, Florida, by Hilary Kramer against
Continucare, the members of the Continucare board of directors,
individually, Metropolitan, and the merger subsidiary.  On
July 12, 2011, a fourth putative class action was filed in the
Circuit Court of the Eleventh Judicial Circuit in and for Miami-
Dade County, Florida, by Jamie Suprina against Continucare, the
members of the Continucare board of directors, individually,
Metropolitan, and the merger subsidiary.  Each of these lawsuits
sought to enjoin the proposed transaction between Continucare and
Metropolitan, as well as attorneys' fees.  The Fuller, Kramer, and
Suprina lawsuits also sought rescissory and other money damages.

On July 28, 2011, an order was granted by the Court to consolidate
these actions and appoint the lead plaintiff and the lead
plaintiff's counsel.

On August 12, 2011, the defendants entered into a preliminary
settlement agreement ("Memorandum of Understanding") with the lead
plaintiff regarding the settlement of the actions.  In connection
with the Memorandum of Understanding, Continucare agreed to make
certain additional disclosures to its shareholders, which are
contained in Continucare's Form 8-K filed with the SEC on
August 12, 2011.  Subject to the completion of certain
confirmatory discovery by the lead plaintiff's counsel, the
parties will enter into a definitive stipulation of settlement.
The definitive stipulation of settlement will be subject to
customary conditions, including consummation of the merger and
court approval following notice to Continucare's shareholders.  In
the event that the parties enter into a definitive stipulation of
settlement, a hearing will be scheduled at which the court will
consider the fairness, reasonableness and adequacy of the
settlement which, if finally approved by the court, will resolve
all of the claims that were or could have been brought in the
actions being settled, including all claims relating to the merger
transaction, the merger agreement, and any disclosure made in
connection therewith.  In addition, in connection with the
settlement, the parties contemplate that the lead plaintiff's
counsel will petition the court for an award of attorneys' fees
and expenses to be paid by Continucare.  There can be no assurance
that the parties will ultimately enter into a definitive
stipulation of settlement or that the court will approve the
settlement.  In such event, the litigation would resume.

Continucare, the director defendants, and Metropolitan vigorously
deny all liability with respect to the facts and claims alleged in
the lawsuits, and specifically deny that supplemental disclosure
was required under any applicable rule, statute, regulation or
law.  However, solely to avoid the risk of delaying or adversely
affecting the merger and the related transactions and to minimize
the expense of defending the lawsuits, Continucare, its directors,
and Metropolitan agreed to the settlement.

On August 22, 2011, at a Special Meeting of Shareholders, the
Merger Agreement and the transactions contemplated thereby were
approved by Continucare shareholders.  Assuming all conditions to
closing are met, Continucare and Metropolitan expect to close the
acquisition on or about the end of September 2011.  There can be
no assurance, however, that the acquisition will close.

CSX TRANSPORTATION: 6th Upholds Summary Judgment in Class Action
Jessica M. Karmasek, writing for Legal Newsline, reports that the
U.S. Court of Appeals for the Sixth Circuit last week upheld a
district court's decision to grant summary judgment to CSX
Transportation in a medical monitoring class action.

Following a train crash that allegedly exposed a small town to
cancer-causing agents, plaintiffs Jonathan Hirsch, Jeanne Myers
and Christopher Mann sought damages on behalf of a putative class.

The U.S. District Court for the Northern District of Ohio, at
Cleveland, granted summary judgment for the train company.

The district court said the plaintiffs had not established general
or specific causation and, as a matter of law, any increased risk
of cancer or other diseases was too insignificant to warrant the
court's ordering a lengthy period of medical monitoring.

The Sixth Circuit affirmed on Sept. 8, agreeing that the
plaintiffs presented such a remote risk of disease from exposure
to fumes from the fire that medical monitoring expenses would be
unreasonable.  Judge Danny J. Boggs authored the appeals court's
eight-page opinion.

"What makes the present claim conceptually unique is that the
Plaintiffs -- though no doubt distraught from the stress of a
train crash and evacuation -- have, even by their own admission,
as of now not suffered any discernable compensable injury.
Rather, their alleged injuries consist solely of the increased
risk of -- and corresponding cost of screening for -- certain
diseases that, according to Plaintiffs, are more likely to occur
as a result of the train crash," Judge Boggs wrote.

However, not every increased risk of disease warrants increased
medical scrutiny, Judge Boggs said.  The expenses must be

"In other words, for the Plaintiffs to prevail, there must be
evidence that a reasonable physician would order medical
monitoring for them," the judge wrote.

The appeals court said the plaintiffs failed to produce evidence
creating a genuine issue.  Instead, they point only to Dr. James
Kornberg's conclusory statement that "a reasonable physician would
prescribe for the Plaintiffs and the putative class a monitoring

"Although juries are generally free to believe expert witnesses, a
plaintiff cannot survive summary judgment with an expert's bare
opinion on the ultimate issue," Judge Boggs wrote.

For that reason, the appeals court ruled that Kornberg's affidavit
is plainly insufficient.

"Dr. Kornberg not only accepted the risk of one in a million as
the threshold for monitoring, but appears to have halved it," the
court said.

It continued, "There is little explanation as to why Dr. Kornberg
believed that reasonable physicians would order expensive and
burdensome testing for such a small risk, but he agreed in his
deposition that his proposal for Painesville was 'to err on the
side of patient safety.'"

The appeals court called the doctor's assessment -- that the
residents' risk might, or might not, be about 50% of a one-in-a-
million additional risk of developing cancer -- "small."

"Indeed, it is proverbially small.  If something has a one-in-a-
million chance of causing cancer in an individual, then it will
not cause cancer in 999,999," it wrote.

Compare that to other statistics, the appeals court said.

According to the National Safety Council, a person's risk of dying
in a motor vehicle accident is 1 in 88.  The risk of being killed
by lightning is roughly 1 in 84,000. The risk of being killed in a
fireworks discharge is about 1 in 386,000.

"These risks -- of death, not disease -- are all much smaller than
what the Plaintiffs allege in this case: lifetime odds of
developing cancer at 50 percent of 1 in 1,000,000," the appeals
court said.

The National Association of Manufacturers and eight other
organizations, including the American Tort Reform Association, the
U.S. Chamber of Commerce and the American Insurance Association,
had filed an amicus brief arguing that a one-in-a-million risk was
too speculative to justify imposing expensive medical monitoring
requirements on any defendant.

DISTRICT OF COLUMBIA: Class Action Settlement Gets Initial Okay
The Associated Press reports that a long-running lawsuit over the
way the District of Columbia provides health services to seriously
mentally ill residents is coming to a close.

A federal judge on Sept. 12 gave preliminary approval to a
settlement in a class-action lawsuit from the 1970s that led to
changes in the way the city cares for its mentally ill residents.
Thirty years ago, public care for the mentally ill in Washington
consisted almost exclusively of hospital treatment.  Now, most
residents remain in their communities while receiving treatment
and hospital stays are shorter.  The change coincided with a
national movement for community-based mental health care.

Under the agreement, which ends long-running court oversight of
the city's mental health program, the city will increase job
services and housing for the mentally ill.  In addition, the city
will reduce its use of restrictive inpatient facilities for
mentally ill youth and increase community-based treatment, letting
children live at home and get care at their homes, schools or
local clinics.  The city has until September 2013 to carry out the

"We'd be the first to tell you there are still many challenges . .
. but the District has made incredible progress," said Stephen
Baron, the director of the Department of Mental Health since 2006.

In a statement, D.C. Mayor Vincent Gray called the agreement a
"significant milestone."

Patients at the city-run mental health hospital, Saint Elizabeths,
originally filed the lawsuit in 1974 seeking treatment
alternatives in their communities instead of hospitalization.  The
case became known as the "Dixon case" after one of the plaintiffs,
William Dixon.

At the time the lawsuit was filed, some 3,600 people were being
treated at Saint Elizabeths and patients often spent a long time
hospitalized in dilapidated buildings.  Today, the hospitalized
population is less than 300 patients, the city said.  A new
facility opened to house those patients in 2010.

Under the settlement agreement, the city will increase the number
of mentally ill residents who get housing subsidies from 1,400 to
1,700.  In addition, the city will expand services to support
mentally ill individuals who want to hold jobs.  Currently, about
700 people get job support services.  That number would expand by
about 200 people under the settlement.

The city plans to send out notice of the agreement to some 27,000
people currently enrolled in the public health system.  They will
have a chance to speak at a hearing Feb. 2 where a judge could
grant final approval of the settlement.  The city will make
quarterly reports on its progress for the next two years.

FOOT LOCKER: Still in Mediation to Resolve Wage and Hour Suits
Foot Locker, Inc., is still engaged in mediation with plaintiff in
the "Pereira" lawsuit to determine whether it will be possible to
resolve several wage and hour cases, according to the Company's
September 7, 2011, Form 10-Q filing with the U.S. Securities and
Exchange Commission for the quarter ended July 30, 2011.

Legal proceedings pending against the Company or its consolidated
subsidiaries consist of ordinary, routine litigation, including
administrative proceedings, incidental to the business of the
Company or businesses that have been sold or disposed of by the
Company in past years.  These legal proceedings include
commercial, intellectual property, customer, and labor-and-
employment-related claims.

Certain of the Company's subsidiaries are defendants in a number
of lawsuits filed in state and federal courts containing various
class action allegations under federal or state wage and hour
laws, including allegations concerning unpaid overtime, meal and
rest breaks, and uniforms.

The Company is a defendant in one such case in which plaintiff
alleges that the Company permitted unpaid off-the-clock hours in
violation of the Fair Labor Standards Act and state labor laws.
The case, Pereira v. Foot Locker, was filed in the U.S. District
Court for the Eastern District of Pennsylvania in 2007.  In his
complaint, in addition to unpaid wage and overtime allegations,
plaintiff seeks compensatory and punitive damages, injunctive
relief, and attorneys' fees and costs.  In September 2009, the
Court conditionally certified a nationwide collective action.
During the course of 2010, notices were sent to approximately
81,888 current and former employees of the Company offering them
the opportunity to participate in the class action, and 5,027 have
opted in.

The Company was a defendant in an additional seven purported wage
and hour class actions that assert claims similar to those
asserted in Pereira and seek similar remedies.  With the exception
of Hill v. Foot Locker filed in state court in Illinois, all of
these actions were either commenced in federal district court or
the Company has subsequently removed them to federal district
court.  On February 25, 2011, the Company filed a motion with the
United States Judicial Panel on Multidistrict Litigation (the
"Panel") to consolidate those cases pending in federal court and
any similar case hereafter filed to a single case under the United
States district court and otherwise consolidating these actions
for coordinated pretrial proceedings.  On May 26, 2011, the Panel
granted the Company's motion to consolidate those cases with
Pereira.  During the first quarter, one of these cases was settled
for an amount that was not material to the Company; three of them
are in the discovery stage; and the remaining four are in
preliminary stages of proceedings.  In Hill v. Foot Locker, in May
2011, the court granted plaintiffs' motion for certification of an
opt-out class covering certain Illinois employees only.  The
Company is filing a motion for leave to appeal.  The Company is
currently engaged in mediation with plaintiff in Pereira and his
counsel in an attempt to determine whether it will be possible to
resolve these cases.  Meanwhile, the Company is vigorously
defending them.  Due to the inherent uncertainties of such
matters, including the early stages of certain matters, the
Company is currently unable to make an estimate of the range of

Management does not believe that the outcome of any such legal
proceedings pending against the Company or its consolidated
subsidiaries, including Pereira and related cases would have a
material adverse effect on the Company's consolidated financial
position, liquidity, or results of operations, taken as a whole.

GAP INC: Continues to Defend Class Action Lawsuits
As a multinational company, The Gap, Inc., is subject to various
proceedings, lawsuits, disputes, and claims ("Actions") arising in
the ordinary course of its business.  Many of these Actions raise
complex factual and legal issues and are subject to uncertainties.
As of July 30, 2011, actions filed against the Company included
commercial, intellectual property, employment, and data privacy
claims, including class action lawsuits.  The plaintiffs in some
Actions seek unspecified damages or injunctive relief, or both.
Actions are in various procedural stages, and some are covered in
part by insurance.  As of July 30, 2011, January 29, 2011, and
July 31, 2010, the Company recorded a liability for the estimated
loss if the outcome of an Action is expected to result in a loss
that is considered probable and reasonably estimable.  The amount
of liability as of July 30, 2011, January 29, 2011, and July 31,
2010, was not material for any individual Action or in total.
Subsequent to July 30, 2011, no information has become available
that indicates a material change to the Company's estimate is

The Company says it cannot predict with assurance the outcome of
Actions brought against it.  Accordingly, adverse developments,
settlements, or resolutions may occur and negatively impact income
in the quarter of such development, settlement, or resolution.
However, the Company does not believe that the outcome of any
current Action would have a material adverse effect on its results
of operations, cash flows, or financial position taken as a whole.

No further updates were reported in the Company's September 7,
2011, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended July 30, 2011.

GOV'T OF CANADA: Quebec Flood Victims Mull Class Action
Jean-Francois Cloutier, writing for QMI Agency, reports that
victims of last spring's record flooding in southern Quebec are
mulling the idea of launching a class action lawsuit against the
federal government.

If a 1937 dam project designed to regulate the Richelieu River was
completed as planned, the damages suffered by thousands of
property owners would have been less severe, said Andre Florent, a
southern Quebec campsite owner hit hard by the flooding.

Mr. Florent said he has the support of hundreds of other flood
victims who agree the federal government acted negligently by not
completing the dam.

Mr. Florent said he obtained documents relating to a 1937 U.S.-
Canadian project designed to regulate the water of the Richelieu

Construction started in 1938 before it was interrupted by the
Second World War.  The dam lies unfinished along part of the
Richelieu River.

The river burst its banks last spring, severely flooding areas
south of Montreal down to the New York border.  Thousands were
forced from their homes.

"There has always been flooding in the region and that's why the
dam project was initiated," Mr. Florent said, who estimated his
2011 losses at C$1 million.

"People are scared to come visit us."

Victims want to be compensated for their losses but also want the
dam finished.

The lawsuit is a tall order, but not impossible, said a lawyer who
specializes in class actions.

Francois Lebeau said four conditions must be met for a class
action suit to get the go-ahead from a judge: A group of people
need to be affected; their damages must be related; there needs to
be the appearance that a party is seriously at fault; and finally,
the person at the head of the suit must be articulate enough to
represent the group properly.

Mr. Lebeau said that while three conditions have been met, he
isn't familiar enough with the case to say how much the federal
government can be at fault for the water damage.

Moreover, even if the potential class action meets all four
criteria, it will be a difficult case to win, particularly if the
dam was unfinished for political reasons, he said.

Mr. Lebeau explained that the federal government can claim
judicial immunity in certain instances if a decision was made by

MEDIA COS: Strikes Deal to Resolve Text Contest Class Action
Eriq Gardner, writing for Hollywood Reporter, reports that NBC
Universal, Fox Broadcasting Company, and many of the production
companies behind some of the most successful reality TV
competition shows have agreed to an extraordinary five-year
injunction that will prohibit them from operating any contest or
sweepstakes where viewers make a submission via text message for
the possibility of winning a prize.

The agreement by the media companies, which includes a large cash
pay-out, comes as part of a proposed settlement to end a class
action lawsuit alleging Fox's American Idol and NBC's Deal or No
Deal took advantage of viewers by running illegal lotteries.

The settlement, announced in a court filing on Sept. 7 in
California federal court, comes after four years of hard-fought
litigation that went up and down the appeals circuit.

The plaintiffs took exception to reality and game shows that gave
viewers the opportunity to win prizes via text message.  In the
"American Idol Challenge," viewers had to answer a trivia
question.  In the "Lucky Case Game," viewers of Deal or No Deal
chose a briefcase corresponding to the winning number.

The text-message contests were alleged to violate California Penal
Code Sec. 319, defining an illegal lottery as a contest where
prizes are distributed based on chance and individuals have paid
some valuable consideration to participate.

The plaintiffs, who didn't win the contest, argued that their 99
cent text message fee was that consideration.

The media companies argued that contestants were given a "free
option" to participate in the contest by going to the game show
Web site.

The district court denied a motion to dismiss.  The Ninth Circuit
upheld the ruling.  And for the past four years, the case has been
proceeding at a snail's pace tied up in all sorts of procedural

Now, the parties have come to an agreement.

The proposed deal will refund the premium text message fee of 99
cents paid by the millions of folks who entered the contests.

Yes, every individual who ended up a loser in the "American Idol
Challenge" will get a fat check for 99 cents.   And the class
action lawyers at Milberg, who took their chances by picking up
this lawsuit on contingency? According to the agreement, to
resolve this litigation, the media companies have agreed to pay
them more than $5 million in fees and expenses!

Of course, the judge needs to approve the settlement and may not
look too kindly on a deal with such disproportionate compensation.
Thus, in papers to the judge, the parties are touting "one of the
key achievements" as being the consent of many parties, including
Fox, NBC, Edemol, Verisign, 19 Entertainment, and Freemantle, to
be subject to an injunction that will enjoin them from "creating,
sponsoring or operating any contest or sweepstakes, for which
entrants are offered the possibility of winning a prize, where
people who enter via premium text message do not receive something
of comparable value to the premium text message charge in addition
to the entry."

The settlement memorandum to the judge adds that this will ensure
"that one of the primary benefits achieved by these litigations --
the termination of the Lucky Case Game and American Idol Challenge
-- will long outlive these Actions."

In other words, the plaintiff lawyers claim the grand-prize of
millions of dollars and everyone else gets the consolation of no
more text message contests on TV.

MORGAN KEEGAN: 6th Cir. Upholds Dismissal of Fraud Class Action
On September 8, 2011, the U.S. Court of Appeals for the Sixth
Circuit ruled in favor of Morgan Keegan & Co., a Memphis,
Tennessee-based financial services firm, upholding the dismissal
of a class action fraud suit brought by a group of mutual fund
investors, who claimed their investments lost value in the wake of
the 2007 financial crisis.

In a decision that will have a wide-reaching impact on
federal/state jurisdictional issues in securities litigation
generally and the mutual fund industry in particular, the
appellate court agreed that the Securities Litigation Uniform
Standards Act of 1998 (SLUSA) barred all state law claims asserted
by the investors.  "The Sixth Circuit's opinion will make it much
more difficult for plaintiffs hoping to avoid federal jurisdiction
in class actions alleging securities fraud," said Matthew M.
Curley, a partner at Bass, Berry & Sims PLC who represented Morgan
Keegan in this matter.

The Sixth Circuit upheld the 2009 decision by Judge Samuel H. Mays
of the U.S. District Court for the Western District of Tennessee,
which dismissed with prejudice all claims in the case, including
the investors' claims for fraud, negligence and breach of

The plaintiffs argued that SLUSA did not apply based on an
exception in the statute called the "Delaware carve-out."  The
Sixth Circuit disagreed, holding that the exception could not save
the plaintiffs' claims from dismissal.  Not until this case has
any district court or appellate court considered whether claims
asserted on behalf of holders of mutual funds fit within the
Delaware carve-out exception to SLUSA.

"We are certainly pleased with the Sixth Circuit's opinion
affirming the dismissal of this action with prejudice," said
Bass, Berry & Sims' Mr. Curley.  "It provides important guidance
on the broad scope of SLUSA's preclusive reach and how narrowly
its Delaware carve-out should be interpreted."

The appellate court also rejected the plaintiffs' argument that
nine of their 13 claims in the suit were not precluded by SLUSA
because they were not pleaded as fraud claims.  Again, the Sixth
Circuit disagreed, finding that "[b]ecause all of plaintiffs'
claims include allegations of fraud, SLUSA damns each one."

The appeal is styled Atkinson v. Morgan Asset Management Inc., No.
09-6265, in the U.S. Court of Appeals for the Sixth Circuit.
Morgan Keegan & Co. was represented by Matthew M. Curley of Bass
Berry & Sims PLC.  Regions Bank was represented by David Bruce
Tulchin of Sullivan & Cromwell LLP, and PricewaterhouseCoopers was
represented by Timothy A. Duffy of Kirkland & Ellis LLP.  The
plaintiffs were represented by Vernon Jay Vander Weide of Head
Seifert & Vander Weide PA and Jerome A. Broadhurst of Apperson,
Crump & Maxwell, PLC.

                   About Bass, Berry & Sims PLC

With more than 200 attorneys representing numerous publicly traded
companies and Fortune 500 businesses, Bass, Berry & Sims PLC has
been involved in some of the largest and most significant
litigation matters and business transactions in the country.

PHARMERICA CORP: Sued Over Board's Refusal to Sell to Omnicare
Louisiana Municipal Police Employees' Retirement System, on behalf
of itself and all other similarly situated shareholders of
PharMerica Corporation, v. Frank Collins, W. Robert Dahl, Jr.,
Marjorie Dorr, Thomas Gerrity, Thomas Mac Mahon, Geoffrey Meyers,
Robert Oakley, Gregory Weishar, and PharMerica Corporation, Case
No. 6851- (Del. Chancery Ct., September 9, 2011) arises because of
the self interested and unreasonable response by the PharMerica
Board of Directors to a non-coercive offer to acquire the Company
by Omnicare, Inc., at a price well above PharMerica's market
price, the Plaintiff argues.  The lawsuit says the Board
repeatedly refused Omnicare's offer, citing antitrust concerns.

The Plaintiff alleges that while the Board cites antitrust
concerns, the real motivation underlying the rejection was a
desire to maintain their lucrative directorships, industry status,
and employment.  The Plaintiff notes that if Omnicare is
successful in acquiring the smaller PharMerica, the directors'
tenures and most, if not all, of the Company's senior management's
employment will be terminated.

LMPERS is a stockholder of PharMerica.

PharMerica is an institutional pharmacy services company, which
services healthcare facilities and provides management pharmacy
services to hospitals.  The Individual Defendants are members of
the PharMerica Board.

The Plaintiff is represented by:

          Stuart M. Grant, Esq.
          Michael J. Barry, Esq.
          Diane T. Zilka, Esq.
          1201 N. Market Street, Suite 2100
          Wilmington, DE 19801
          Telephone: (302) 622-7000
          E-mail: sgrant@gelaw.com

               - and -

          Mark Lebovitch, Esq.
          Jeremy Friedman, Esq.
          1285 Avenue of the Americas
          New York, NY 10019
          Telephone: (212) 554-1400
          E-mail: markl@blbglaw.com

PROCTER & GAMBLE: Faces Class Action Over Neat Squeeze Dispenser
Matt Reynolds at Courthouse News Service reports that an unhappy
class of consumers claims Procter & Gamble's "Neat Squeeze"
toothpaste dispenser leaves as much as 20% of the Crest in the
tube, cheating them of "the full value of their purchase."

Lead plaintiff Jonathan Rothstein seeks damages for Procter &
Gamble's "unlawful, unfair, and fraudulent business acts and
practices and deceptive advertising."

In a lament that every tooth-brusher must have felt at some time,
Mr. Rothstein states: "The benefit of the Neat Squeeze dispenser,
as stated on the product's label, is that there is less mess
associated with its use.

"The label goes on to describe how the innovative packaging works,
but then fails to disclose that, due to its defective design, the
consumer will be unable to dispense a significant quantity of
toothpaste once the Neat Squeeze fails, as they all inevitably do.
On the label's directions, defendant explains how to properly
dispense toothpaste, and how to know when it is time to purchase
additional toothpaste.  It states:

"'The Neat Squeeze dispenser has a unique inner bag that empties
itself as you squeeze in the middle.  When the package gets
lighter and is harder to squeeze, it's time to buy more Crest.'

"What defendant fails to explain is that the full volume of
toothpaste will not be dispensed, no matter how hard the consumer
tries to squeeze.  Once the dispenser becomes 'lighter' and is
'harder to squeeze,' it will no longer dispense toothpaste.  At
this point, the only way to access the remaining toothpaste is to
cut open the packaging with scissors or a knife.  However in doing
so, the promise of 'Less Mess,' the slogan associated with the
Neat Squeeze dispenser, is lost and the package is not designed or
intended to be sliced open."

Mr. Rothstein, who bought his toothpaste at a Walgreens in Encino,
claims that roughly 20% of the Crest was left in the tube.  He
calculates that he is owed 20% of the $4.49 retail price, or about
90 cents.

Mr. Rothstein says he bought the toothpaste believing that its
entire net weight would be "usable, when that is not in fact the

Mr. Rothstein seeks class damages for money had and received,
fraudulent concealment, breach of express warranty, unfair
competition, false advertising, negligent misrepresentation and
violation of the Consumer Legal Remedies Act.

A copy of the Complaint in Rothstein v. The Procter & Gamble
Company, Inc., et al., Case No. 11-cv-07403 (C.D. Calif.), is
available at:


The Plaintiffs are represented by:

          Michael Caddell, Esq.
          Cynthia B. Chapman, Esq.
          Cory S. Fein, Esq.
          1331 Lamar, Suite 1070
          Houston, TX 77010
          Telephone: (713) 751-0400
          E-mail: mac@caddellchapman.com

               - and -

          Brian Levine, Esq.
          Elana R. Levine, Esq.
          15760 Ventura Boulevard, Suite 2030
          Encino, CA 91436
          Telephone: (818) 990-3400
          E-mail: brian@llglaw.com

REFINERY TERMINAL: Faces Class Action Over Unpaid Overtime
Courthouse News Service reports that Refinery Terminal Fire Co.,
the largest nonprofit industrial firefighting group in the nation,
stiffs workers for overtime, according to a federal class action.

A copy of Martinez, et al. v. Refinery Terminal Fire Company, Case
No. 11-cv-00295 (S.D. Tex.), is available at:


The Plaintiffs are represented by:

          Craig M. Sico, Esq.
          802 N. Carancahua, Suite 900
          Corpus Christi, TX 78401
          Telephone: 361/653-3300
          E-mail: csico@swbtrial.com

               - and -

          Roger S. Braugh, Jr., Esq.
          Clif Alexander, Esq.
          Stuart R. White, Esq.
          802 N. Carancahua, Suite 900
          Corpus Christi, TX 78401
          Telephone: 361/653-3300
          E-mail: rbraugh@swbtrial.com

               - and -

          Jerry Guerra, Esq.
          924 Leopard Street
          Corpus Christi, TX 78401
          Telephone: 361/884-1632

STATE OF IOWA: Trial in Discrimination Class Action Begins
Michael J. Crumb, writing for The Associated Press, reports that a
trial began on Sept. 12 in a class-action lawsuit claiming the
state of Iowa discriminated against thousands of black people in
its hiring practices.

The trial began in Polk County District Court after a judge last
week rejected the state's claims the case was too broad to be
legally viable.

The lawsuit filed in 2007 was expanded and certified as a class-
action case in 2010.  It lists 32 plaintiffs who claim they were
discriminated against when they applied for a job or sought a
promotion in their existing position because they are black.
Thomas Newkirk, an attorney for the plaintiffs, said the lawsuit
encompasses more than 20,000 employment applications and 6,000
black Iowans who encountered discrimination since 2003.

In a statement before trial began, Mr. Newkirk said the goal of
the lawsuit is to work with the state so it can better deal with
the causes of discrimination responsibly and "open a discussion
about race and what it means to be black in this country.

"It is also the mission of this class and counsel to see
affirmative action administered in the way it was intended -- not
as some quota or goal -- but as a serious, methodical process to
overcome bias in all forms," Mr. Newkirk said.

The state encouraged the certification of the class in 2010 but
last week sought to have the case dismissed saying the plaintiffs
"could not have brought a less specific case against the (state)
departments and their hiring and employment practices."

Geoff Greenwood, a spokesman for the Iowa attorney general's
office, declined to comment on the case on Sept. 12, but in a
document filed with the court last week, attorneys with office
argued that each department's hiring and employment practices
vary, discrediting the plaintiffs' claims.

"Because of the job-specific nature of the employment practices
used by Defendants, African Americans' employment successes
predictably vary by department, job and step within the hiring
practices, contrary to Plaintiffs' unified, albeit nebulous,
theory," the document said.

The document also said 85% of all merit positions are covered by
collective bargaining agreements, "which strictly limits what
little discretion exists for the terms and conditions a department
may offer a candidate for a particular job."

Judge Robert Blink denied the state's request to dismiss the case,
saying the state seemed to be "back pedaling from their agreement
to the class certification."

The trial is expected to last about three weeks.

Gov. Terry Branstad said on Sept. 12 that his administration hired
new department and agency directors and made it clear people
should be treated in a "fair and nondiscriminatory way."

"We're trying to get more uniformity and consistency and fairness
in terms of the way things are managed in state government,
including hiring and accountability in terms of employees that are
working for the department and agencies of state government,"
Gov. Branstad said.

TOYOTA MOTORS: Says It Has Right to Due Process in Class Action
Cynthia Hsu, writing for FindLaw, reports that Toyota is currently
fighting a class action lawsuit that alleges the recent safety
recalls lowered the value of the plaintiffs' Toyota cars.

In response to the litigation, Toyota's legal team is looking to
depose about 250 economic loss plaintiffs through the year 2013.
And, the plaintiffs are none-too-pleased with this request.

Plaintiffs are saying that Toyota's plan would make for a very
inefficient trial.  They are seeking to limit Toyota's depositions
to about 50 plaintiffs, Reuters reports.

In seeking the vast amount of discovery, Toyota's general counsels
and outside attorneys are likely only doing what they think is
right for the company.

After all, evidence -- including information obtained through
depositions -- can make or break a case.

And, Toyota's attorneys likely have another reason to fight the
plaintiffs' request to limit the number of depositions they take.
They claim that limiting the number of depositions would be
violating a corporate defendant's due process rights, Reuters

Specifically, Toyota attorneys point to the Supreme Court's
decision in Walmart's sex-discrimination class action suit that
emphasized a corporation's right to due process.

Toyota's actions may be relevant to general counsels everywhere.
Defending a corporation against lawsuits requires strategy.  And,
ensuring that the company's legal interests are looked after might
also mean ensuring the proper amount of discovery.

Should Toyota's trial plan be tempered with the desire to maintain
good relationships with their customers? For example, drawing out
litigation may mean that plaintiffs are more likely to settle.  It
could also mean that Toyota's attorneys will discover more
information through discovery.  But, will it also mean that
plaintiffs will be less likely to buy a Toyota the next time they
decide to purchase a car?

VAUGHAN FOODS: Settles Class Action Over Proposed Reser's Merger
Vaughan Foods, Inc. disclosed that it has reached an agreement in
principle to settle the purported class action lawsuit challenging
the proposed merger of Vaughan and Reser's Fine Foods, Inc.

As previously disclosed, Vaughan, Reser's, and Reser's
Acquisition, Inc., an Oklahoma corporation and a wholly owned
subsidiary of Reser's, entered into an Agreement and Plan of
Merger, dated July 6, 2011, pursuant to which Reser's would
acquire Vaughan for an aggregate purchase price of $18.25 million
payable to the shareholders of Vaughan and certain holders of
options and warrants to purchase shares of Vaughan common stock,
as a result of a merger of Acquisition with and into Vaughan.

In conjunction with the Merger, Vaughan filed proxy material with
the Securities Exchange Commission containing detailed information
and relevant documents relating to the Merger.  Included in the
Proxy Statement was a brief description of a putative shareholder
lawsuit, styled as Kevin Wolters v. Herbert Grimes et al., filed
against the individual members of the Board of Directors of
Vaughan, Vaughan, Reser's and Acquisition in the United States
District Court, Cleveland County, Oklahoma.  Effective as of
September 9, 2011, the parties to the Action entered into a
Memorandum of Agreement, pursuant to which the Action would be
settled in consideration for Vaughan having made certain
additional disclosures relating to the Merger, which were included
in a Current Report on Form 8-K filed with the SEC on September 9,
2011, which can be accessed at http://is.gd/f4iPMLand the
defendants' agreement to pay plaintiff's reasonable legal
counsel's fees and disbursements in an amount to be negotiated or,
if no agreement can be reached, an amount to be determined by the
Court.  The settlement is subject to the parties agreeing on,
executing and presenting to the Court within 60 days a formal
Stipulation of Settlement that will dismiss the Action with
prejudice against all the defendants.

                     About Vaughan Foods, Inc.

Vaughan Foods is an integrated manufacturer and distributor of
value-added, refrigerated foods and is uniquely able to distribute
fresh-cut produce items along with a full array of value-added
refrigerated prepared foods multiple times per week.  Vaughan
sells to both food service and retail sectors.  Its products
consist of fresh-cut vegetables, fresh-cut fruits, salad kits,
prepared salads, dips, spreads, soups, sauces and side dishes.

ZIPLOCAL: Breach of Contract Class Action Can Proceed
The Salt Lake Tribune reports that a Utah County judge has allowed
a proposed class-action lawsuit against an Orem-based Yellow Pages
company called Ziplocal to go forward over allegations it breached
its contracts with local advertisers.

State court Judge Claudia Laycock dismissed two parts of the
proposed class-action lawsuit filed last year but allowed to
remain a question of whether it had breached contracts by
drastically cutting distribution of its phone books without
informing clients.

Jones Heating & Air Conditioning of West Valley City sued,
claiming that Ziplocal had trimmed its circulation of Yellow Pages
books from 444,000 to 200,000 during 2009-10 but charged
businesses full price for ads, the cost of which was supposedly
partly based on the number of copies distributed.

Attorneys for Jones Heating are asking Judge Laycock to certify
the class-action suit and allow them to bring in more businesses
allegedly harmed by Ziplocal's contact.

Ziplocal contends its contract with advertisers allowed it to trim
distribution as it saw fit.  Judge Laycock said the contract
language was ambiguous.

A lawsuit with similar allegations is pending in federal court
covering the state of Montana.  In August, The Salt Lake Tribune
reported there were similar allegations in other parts of the


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Felisilda, Noemi Irene A. Adala, Joy A. Agravante, Julie Anne
Lopez, Christopher Patalinghug, Frauline Abangan and Peter A.
Chapman, Editors.

Copyright 2011.  All rights reserved.  ISSN 1525-2272.

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