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/raid1/www/Hosts/bankrupt/CAR_Public/111018.mbx C L A S S A C T I O N R E P O R T E R Tuesday, October 18, 2011, Vol. 13, No. 206 Headlines ALLOS THERAPEUTICS: Settles Class Action Over AMAG Pharma Merger AMARANTH ADVISORS: Settles Natural Gas Class Action COUNTRYWIDE BANK: Kentucky Judge Tosses Home Loan Class Action FACEBOOK INC: Sued for Tracking Users' Internet Browsing History GOV'T. OF AUSTRALIA: May Face Class Action Over 2009 Toodyay Fire IKON OFFICE: Did Not Pay Work-Related Expenses, Suit Claims MERSCORP INC: Sued Over Failure to Record Mortgage Assignments MIDDLETON JAIL: Faces Class Action Over Illegal Jail Fees PPD INC: Faces Class Action in North Carolina Over Buyout SUSQUEHANNA COUNTY, PA: Judge Certifies Delousing Class Action TAYLORVILLE CHIROPRACTIC: Class Action Notice to Be Sent by Fax TOYOTA: July 2013 Trial Set for Economic Claims in Class Action UC-BERKELEY: Police Sued for Jailing Non-Violent Protestors UNITED STATES: DoD Faces Class Action Over TRICARE Data Theft VISA INC: Faces Class Action in D.C. Over ATM Fee Price-Fixing ********* ALLOS THERAPEUTICS: Settles Class Action Over AMAG Pharma Merger ---------------------------------------------------------------- Allos Therapeutics, Inc. on Oct. 13 disclosed that Allos and other named defendants have entered into a memorandum of understanding (MOU) with plaintiffs' counsel in connection with the putative class action lawsuits filed in the Delaware Court of Chancery in connection with its proposed merger with AMAG Pharmaceuticals, Inc. As previously announced, on July 19, 2011, Allos entered into an Agreement and Plan of Merger and Reorganization (the Merger Agreement) with AMAG and its wholly owned subsidiary, Alamo Acquisition Sub, Inc. Under the terms of the MOU, Allos will file a Current Report on Form 8-K amending and supplementing certain disclosure in the joint proxy statement/prospectus filed by Allos in connection with the merger. The MOU reflects the parties' agreement to resolve the allegations by the settling plaintiffs against Allos and other defendants in connection with the Merger Agreement and provides a release and settlement by the purported class of Allos' stockholders of all claims against Allos and other defendants and their affiliates and agents in connection with the Merger Agreement. The MOU and settlement are contingent upon, among other things, approval of the Delaware Court of Chancery, the closing of the merger and further definitive documentation. Allos and the other named defendants continue to believe that each of the lawsuits filed in connection with its proposed merger with AMAG are without merit and that they have valid defenses to all claims made by the applicable plaintiffs. About Allos Therapeutics Allos Therapeutics, Inc. -- http://www.allos.comis a biopharmaceutical company committed to the development and commercialization of innovative anti-cancer therapeutics. Allos is currently focused on the development and commercialization of FOLOTYN(R) (pralatrexate injection), a folate analogue metabolic inhibitor. FOLOTYN is approved in the U.S. for the treatment of patients with relapsed or refractory peripheral T-cell lymphoma. AMARANTH ADVISORS: Settles Natural Gas Class Action --------------------------------------------------- Asjylyn Loder, writing for Bloomberg News, reports that Amaranth Advisors LLC, the hedge fund that collapsed in 2006 after losing $6.6 billion on natural gas trades, tentatively settled a class- action lawsuit in which it was accused of market manipulation, according to a filing in Manhattan federal court. U.S. District Judge Shira A. Scheindlin said in an order Oct. 5 that the parties in the case had reached an agreement. In August 2009, the Commodity Futures Trading Commission announced that Greenwich, Connecticut-based Amaranth paid $7.5 million to settle allegations that the hedge fund tried to manipulate natural gas futures three years earlier. In April, the Federal Energy Regulatory Commission issued a $30 million civil penalty against Amaranth trader Brian Hunter, who was accused of manipulating the natural gas market in 2006. Mr. Hunter's attorney, Michael Kim, didn't return calls seeking comment. Chris Lovell, an attorney for the plaintiffs at Lovell Stewart Halebian LLP in New York, and Stephen Senderowitz, a lawyer for Amaranth at Winston & Strawn LLP in Chicago, declined to comment. A hearing in the case is scheduled for Nov. 30. The case is In Re Amaranth Natural Gas Commodities Litigation, 07- 06377, U.S. District Court, Southern District of New York (Manhattan.) COUNTRYWIDE BANK: Kentucky Judge Tosses Home Loan Class Action -------------------------------------------------------------- Brett Barrouquere, writing for The Associated Press, reports that a federal judge in Kentucky has rejected class-action status in a lawsuit accusing Countrywide Bank of charging African-American and Hispanic borrowers more for home loans than Caucasian borrowers. U.S. District Judge John Heyburn II on Oct. 12 ruled that Countrywide's policy put a great deal of discretion in the hands of individual loan officers, leaving too many variables at play for the plaintiffs to prove a collective action by the company. A dozen people sued Countrywide, which is now owned by Bank of America, in 2008, claiming they and others were treated differently than other customers looking for a home loan between 2005 and 2007. Boston-based attorney Gary Klein said the plaintiffs are evaluating the decision. A Bank of America spokesman didn't immediately return a message on Oct. 13. IKON OFFICE: Did Not Pay Work-Related Expenses, Suit Claims ----------------------------------------------------------- Tammi Pelton Cluck, Cedrick Heffner, Alan Kabakoff, and Brian Swanson, individually and on behalf of all others similarly situated v. Ikon Office Solutions, Inc., an Ohio Corporation, Case No. 3:11-cv-05027 (N.D. Calif., October 12, 2011) seeks reimbursement for business expenses on behalf of the Plaintiffs and all other individuals, who are or have been employed by the Defendant as "General Line Sales Representatives." The Plaintiffs allege that Ikon Office has willfully failed and refused to reimburse them and the Class members fully, or at all, for business expenses they incurred in the regular course of their duties as the Defendant's employees. The Plaintiffs are residents of California and were previously employed by the Defendant. Ikon Office is an Ohio corporation and maintains offices in California. The Plaintiffs are represented by: Julian Hammond, Esq. HAMMONDLAW, PC 1180 S. Beverly Drive, Suite 601 Los Angeles, CA 90035 Telephone: (310) 601-6766 Facsimile: (310) 295-2385 E-mail: Hammond.julian@gmail.com FACEBOOK INC: Sued for Tracking Users' Internet Browsing History ---------------------------------------------------------------- Courthouse News Service reports that a federal class action claims Facebook sold its users' Internet browsing history for targeted ads after collecting the information "even when the users were not logged in to Facebook." A copy of the Complaint in Rutledge v. Facebook Inc., Case No. 11- cv-00133 (N.D. Miss.), is available at: http://www.courthousenews.com/2011/10/13/Facebook.pdf The Plaintiffs are represented by: David W. Shelton, Esq. DAVID SHELTON PLLC 1223 Jackson Avenue East, Ste. 202 P.O. Box 2541 Oxford, MS 38655 Telephone: (662) 281-1212 E-mail: david@davidsheltonpllc.com GOV'T. OF AUSTRALIA: May Face Class Action Over 2009 Toodyay Fire ----------------------------------------------------------------- Joel Kelly, writing for Avon Valley Gazette, reports that with mediation talks between Western Power and Toodyay's bushfire victims stalled, a separate legal action will be launched to seek additional compensation from the State Government for some of those who lost almost everything in the 2009 fire. Toodyay resident Laurie Biggs is planning a new class action with other residents that he says would introduce important new evidence about the fires. Although the State Government has already compensated 38 Toodyay fire victims to the tune of almost AUD2 million, Mr. Biggs believes the Government must assume full responsibility for the fire and the "third-rate" investigation that "failed to interview important witnesses". "A lot of the residents, including me, are not involved in the current legal action against Western Power because it was just too soon to start listing every single item that was lost and uncompensated for (in the fire)," he said. "It's very painful for people to put together a list for a solicitor, which is why not everyone has come forward to join in the case. "No-one wants to make money out of this; we just want to return to some sort of normality." Mr. Biggs said the stress of the bushfire aftermath had contributed to relationship break-ups and poor health in the regional community. He said the new civil action would be stronger and take into consideration any alleged shortfalls by government departments. Western Power said the latest mediation talks in August remained unresolved and no further mediation had been planned. The discussions between the parties followed an investigative report by Energy Safe WA that formed an opinion that Western Power infrastructure was the likely source of the Toodyay fire, although crucial evidence had been destroyed in the blaze. MERSCORP INC: Sued Over Failure to Record Mortgage Assignments -------------------------------------------------------------- Bernstein Liebhard LLP, with David P. Joyce, Prosecuting Attorney for Geauga County, Ohio, on Oct. 13 disclosed that a lawsuit has been filed in the Geauga County Court of Common Pleas by Plaintiff Geauga County, on behalf of itself and all other Ohio counties, against MERSCORP, Inc., Mortgage Electronic Registration System, Inc., and MERS's members. In the class action complaint, Plaintiff Geauga County, on behalf of itself and all other Ohio counties, alleges violations of Ohio state law arising from Defendants' failure to record intermediate mortgage assignments in, and pay the attendant county recording fees to, Ohio county recording offices. In failing to record, Defendants systematically broke chains of title throughout Ohio counties' public land records by creating "gaps" due to missing mortgage assignments they failed to record, or by recording patently false and/or misleading mortgage assignments. Defendants' purposeful failure to record has eviscerated the accuracy of Ohio counties' public land records, rendering them unreliable and unverifiable -- damage to public land records that may never be entirely remedied. As a result, the Class seeks declaratory and injunctive relief, as well as damages, to remedy Defendants' persistent, and purposeful, failure to comply with Ohio's legal requirement to record mortgage assignments in the proper county recording office. In doing so, Defendants avoided paying the attendant county recording fees as required by Ohio state law. Ohio's recording laws have been in place for nearly 200 years. The case is captioned State of Ohio, ex rel. David P. Joyce Prosecuting Attorney of Geauga County, Ohio v. MERSCORP, Inc., et al., No. 11-M-001087. For more information, please contact: Stanley D. Bernstein, Esq. Christian Siebott, Esq. Bernstein Liebhard LLP 10 East 40th Street New York, NY 10016 Telephone: (212) 779-1414 E-mail: bernstein@bernlieb.com siebott@bernlieb.com Web site: http://www.bernlieb.com MIDDLETON JAIL: Faces Class Action Over Illegal Jail Fees --------------------------------------------------------- Julie Manganis, writing for Eagle Tribune, reports that a class action suit has been filed in Salem Superior Court on behalf of Middleton Jail inmates who are charged a $30 medical processing fee and a $5 co-pay for infirmary visits. The suit, filed on Oct. 11 by the nonprofit Prisoners' Legal Services and the Massachusetts Lawyers Guild, cites a decision by the Supreme Judicial Court last year that county sheriffs have no statutory authority to impose fees on inmates. That case was brought against Bristol County Sheriff Thomas Hodgson over a far broader range of fees, including a $5 daily "cost of care" fee as well as medical charges. The Supreme Judicial Court ruled not only that Mr. Hodgson couldn't collect the fees but that he had to refund all of the money paid by inmates, plus interest, since the fees were implemented. Mr. Hodgson and sheriffs in several other counties have been lobbying since then for legislation that would allow such fees. The suit against Essex County Sheriff Frank Cousins argues that the medical processing fee and co-pays violate the law, not only because Mr. Cousins has no legal authority to impose them but because they sometimes lead to inmates being unable to pay court fees and assessments that are specified by the law. The suit also alleges that the fees are a violation of inmates' due process rights and that they essentially amount to "conversion" -- a civil form of theft. The suit also charges that Mr. Cousins is violating another statute that requires jails to determine whether an inmate has medical insurance and to then bill insurance companies for the cost of care. Lawyers for the inmates are asking a judge to issue an injunction barring the collection of fees and to order the sheriff to reimburse inmates who have paid the fees. "It's illegal without statutory authority," said Leslie Walker, director of Prisoners' Legal Services. Aside from that, "this was coming out of poor people's pockets," and not necessarily those of the inmates, most of whom are legally indigent, a recent report concluded. Instead, the money is coming from family members, who are often receiving some form of assistance themselves, Ms. Walker said. Ms. Walker rejects any argument that the fees teach inmates responsibility. "It's not like in the real world," Ms. Walker said. "You don't earn any money." Mr. Cousins said on Oct. 12 that "we will, as always, deal with it in the appropriate forum." Mr. Cousins said he had not yet seen the suit and declined to comment on specific allegations. He stands by the fees, however, calling them the "right thing to do" to recoup some of the cost of incarceration to taxpayers, as well as to offset a 13% budget cut over the past three years. But Mr. Cousins bristled at comparisons to Mr. Hodgson. "I don't like to compare myself to him," he said. "We run a totally different operation." And he's not in support of the legislation currently being debated that would authorize a daily fee, something being pushed by Mr. Hodgson. Mr. Cousins said he tries to focus on providing opportunities to rehabilitate inmates, such as through a barber training program that is supported, in part, by fees inmates pay for haircuts. "We try to strike a balance between fairness and sound correctional policies," Mr. Cousins said. The Essex County fees were implemented in 2001 and were projected to raise about $300,000 a year at the time. The sheriff and his spokesman, Paul Fleming, said attorneys have been asked to look at the Bristol County decision but have not yet provided an opinion to Mr. Cousins as to how it might affect the Essex County fees. Lawyers James Pingeon, who handled the Bristol case as well; David Kelston and Jeffrey Thorn, have also asked that a judge certify the case as a class action. Four current or former inmates have agreed to sign on as named plaintiffs in the case, including Michael Bryson, a Beverly man awaiting trial on charges that he helped murder a homeless man in Beverly last year; Lance Bentley, a Saugus man who was recently released after serving a sentence; and John Harkins and Raymond Monan, two inmates currently serving jail terms. However, if the case were certified as a class action, any decision would affect all inmates who have paid the fees during the past decade. PPD INC: Faces Class Action in North Carolina Over Buyout ------------------------------------------------------ Wayne Faulkner, writing for StarNewsOnline.com, reports that a California man has filed a class-action suit seeking to block the buyout of PPD Inc. by two private equity firms. Such suits, arising from mergers or buyouts, are not uncommon, and it's too early to know what effect, if any, this one will have on the deal between the Wilmington-based company and the Carlyle Group and Hellman & Friedman LLC. The suit by Mark Hendriks, filed on Oct. 11 in U.S. District Court for Eastern North Carolina, alleges that the price to be paid to shareholders is "woefully" inadequate and that officers and directors of PPD breached their fiduciary duties in several ways. Carlyle and Hellman are offering $33.25 a share for the clinical research company. The deal was announced Oct. 3. PPD said, through spokesman Ned Glascock, that it is not its policy to comment on pending litigation. "It's not uncommon to find even in a good deal that there will be a disgruntled shareholder," said Professor Tom Hazen of the University of North Carolina School of Law. "These things do happen with a fair degree of frequency. "The normal process (of the buyout) is likely to proceed," Mr. Hazen continued, "and if the shareholders approve, there is a very high threshold for a court to stop the transaction." Mr. Hazen said, however, that shareholders will have to be told about the lawsuit. "There often is litigation that arises out of mergers and that is often resolved way after the deal is completed," he said. Mr. Hazen said there are law firms that specialize in shareholder litigation, and they are on the lookout for potential clients. SUSQUEHANNA COUNTY, PA: Judge Certifies Delousing Class Action -------------------------------------------------------------- Erin McAuley at Courthouse News Service reports that a federal judge certified a class claiming that a jail's blanket policy of submitting new inmates to a delousing regime unconstitutionally violates their 14th Amendment right to refuse medical treatment. "It cannot be said that these detainees were deloused pursuant to any sort of individualized [medical] determination," U.S. District Judge Richard Caputo wrote, adding that a class is best suited for a case like this that pertains to uniform policy. Roneld Logory filed the federal class action against Susquehanna County Correctional Facility (SCCF) in July 2009. He said he was "humiliated and degraded" at his treatment in lockup for the misdemeanor offense of driving under the influence. After a strip search in which jail officials inspected the inside of his buttocks and around his testicles, "a correctional officer sprayed plaintiff with a delousing agent on his genitals" and then forced him to take a supervised shower, according to the complaint. "Susquehanna County has instituted a blanket policy of delousing, showering and strip-searching all individuals who enter the custody of the [SCCF] regardless of the nature of their charged crime and without the presence of reasonable suspicion to believe that the individual was concealing a weapon or contraband," Mr. Logory added. The case hit a bump in September 2010 when the 3rd Circuit upheld blanket search policies of arrestees as consistent with the Fourth Amendment in Florence v. Bd. of Chosen Freeholders of Burlington. Mr. Logory countered by proposing two new classes for certification: "The Fourth Amendment Class -- All persons who have been placed into custody of the Susquehanna County Jail as pre- trial detainees who were deloused upon their entry into the Susquehanna County Jail" and "The Fourteenth Amendment Class -- All persons who have been placed into custody of the Susquehanna County Jail after being sentenced or as pre-trial detainees who were deloused upon their entry into the Susquehanna County Jail." Judge Caputo ruled that Mr. Logory satisfied the numerosity requirement for certification since the prison admitted that all of its "detainees who were strip searched were subjected to delousing procedures," that the "delousing procedure is, in fact, part of its strip search process," and that it subjected more than 170 pretrial detainees charged with summary offenses and misdemeanors to strip searches between June 2007 to March 25, 2010. The judge disagreed, however, with Mr. Logory's claim that his Fourth Amendment Class differed from the claims dismissed by the 3rd Circuit. Mr. Logory had claimed that "delousing was unreasonable in that a determination of whether a strip search should be conducted on a pre-trial detainee has no bearing on whether a particular individual is a carrier of lice," according to the court. He also tried "to play up the differences between the two procedures, that Florence utilized a self-applied shampoo followed by a supervised shower while the instant case concerns a delousing spray followed by an unsupervised shower." But Mr. Logory failed to show how delousing further aggravated the strip-search deemed acceptable in Florence, Caputo ruled. "The delousing procedure itself does not inherently increase the exposure or duration of a strip search, and while [Logory] never specifies, the court is hard-pressed to determine exactly how delousing functionally exaggerates the scope of the approved strip search," he wrote. "While perhaps a medical treatment, to characterize delousing as an extension of the strip search appears redundant." Judge Caputo certified the 14th Amendment Class that "a common, if not identical, set of facts [applied] to each member of this class, comprised of detainees who were automatically subjected to a delousing 'regardless of whether there is reason to believe that detainees have a medical condition that would benefit from this medical treatment and without advising detainees of the scope of the medical procedure or providing them with the opportunity to decline to undergo the procedure.'" Mr. Logory's claim is "highly typical of those of the class" and there "is no evidence that he, or any detainee entering the facility, was deloused based on any particularized determination of necessity," according to the 23-page decision. "From the factual record, it is evident that each detainee who was strip searched was wholesale deloused, including those who evidently did not require the procedure," Judge Caputo added, while discussing satisfaction of the predominance requirement. The court also agreed with Mr. Logory that "the class is likely to 'contain poor and marginalized class members who are unlikely to be able to litigate these cases individually, especially when the prosecution of delousing cases generally requires expensive testimony from medical doctors." "To allow this to proceed as a class action would not be removing claims from the hands of the class members, but would instead afford them an opportunity to pursue them," Judge Caputo wrote. The U.S. Supreme Court heard oral arguments on Oct. 12 on Florence, after agreeing to take up the case in April. A copy of the Memorandum in Logory v. The County of Susquehanna, Case No. 09-cv-01448 (M.D. Pa.), is available at: http://www.courthousenews.com/2011/10/13/Delouse.pdf Mr. Logory is represented by: Charles J. LaDuca, Esq. Alexandra C. Warren, Esq. CUENO GILBERT & LADUCA 507 C Street NE Washington, D.C. 20002 Telephone: (202) 789-3960 The class is represented by: Beverly Steinberg-Sporn, Esq. Daniel Levin, Esq. LEVIN FISHBEIN SEDRAN & BERMAN 510 Walnut Street, Suite 500 Philadelphia, PA 19106-3697 Telephone: (877) 882-1011 E-mail: dlevin@lfsblaw.com TAYLORVILLE CHIROPRACTIC: Class Action Notice to Be Sent by Fax --------------------------------------------------------------- Christina Stueve, writing for The Madison St. Clair Record, reports that St. Clair County Circuit Judge Lloyd Cueto on Sept. 28 approved class action plaintiff Mixon Insurance Agency's request that an exhibit be approved in its case against Taylorville Chiropractic Clinic and its director, Philip S. Dudak. Judge Cueto also approved that Mixon send a class notice by fax and set appropriate dates for any class member desiring to opt out of the certified class. By sending unsolicited fax messages to Mixon Insurance Agency and at least 39 other businesses, Taylorville Chiropractic Clinic and Mr. Dudak forced the companies to pay the clinic's advertising campaign, according to a putative class action lawsuit. Mixon filed the case in 2009 against the clinic and its director, saying the defendants violated the federal Telephone Consumer Protection Act by sending unsolicited fax advertisements. Because they received the faxes unwillingly, Mixon and the other companies lost the use of their fax machine momentarily and used ink toner and paper, the complaint says. In addition, employees wasted time to get the fax when they could have been doing something else, the suit said. In Mixon's case, it received the unsolicited faxed advertisement on Sept. 25, 2006, according to the complaint. Mixon would like to include in the class any company or person who received an unsolicited faxed advertisement from Taylorville within the past four years. Robert J. Sprague of Sprague and Urban in Belleville, Brian J. Wanca of Anderston - Wanca in Rolling Meadows and Phillip A. Bock of Bock and Hatch in Chicago represent the plaintiffs. St. Clair County Circuit Court Case number: 09-L-509. TOYOTA: July 2013 Trial Set for Economic Claims in Class Action --------------------------------------------------------------- Amanda Bronstad, writing for The National Law Journal, reports that a proposed class action alleging economic losses on behalf of consumers in California and a few other states, caused by alleged sudden, unintended acceleration by Toyota vehicles, will begin in July 2013, the federal judge overseeing the multidistrict litigation said on Oct. 11. U.S. District Judge James Selna in Santa Ana, Calif., told the parties that a class action would be the second case to go to trial, following a personal injury and wrongful death action that he previously had scheduled for Feb. 19, 2013. In setting what he called an "ambitious" target date, Judge Selna rejected Toyota Motor Corp.'s argument that its lawyers needed time to file additional motions regarding claims originating in the other states to adequately prepare for the bellwether class action trial. They argued that 75% of such claims had been filed outside California. Judge Selna also rejected a suggestion by plaintiffs' lawyers that the case -- filed on behalf of consumers in California, New York and Florida -- should assert claims under California state laws. He said he was "highly unlikely" to certify a class of consumers in New York and Florida under California law. "I don't think you're going to convince me," he told Steve Berman, managing partner of Seattle's Hagens Berman Sobol & Shapiro, co- lead counsel for the plaintiffs in the economic loss cases. Mr. Berman filed the proposed bellwether class action on Sept. 20. More than 200 class actions and economic loss cases were coordinated in the multidistrict litigation against Toyota. An additional 100 cases allege personal injury and wrongful death. The courts use bellwether cases to decide legal and evidentiary issues for all of the related litigation and -- potentially -- move the parties closer to settlement. Judge Selna said he was not averse to hearing a class action bellwether trial involving more than one state. But he emphasized that consumers in those states must assert claims under the laws of their own states, not California's. California law tends to be more consumer-friendly than those of other states, many of which require plaintiffs to prove a manifestation of a defect to qualify for economic damages. Mr. Berman acknowledged an alternative proposal more in line with Judge Selna's remarks would be to include subclasses of consumers in New York and Florida brought under New York and Florida laws. Toyota's lawyer, Cari Dawson, a partner at Atlanta's Alston & Bird, immediately countered that the proposed states were of the plaintiffs' choosing, not Toyota's. She suggested including claims on behalf of consumers in additional three states -- Ohio, Illinois and Georgia. "I doubt I would add another state to any class action," Judge Selna responded. But he said that New York or Florida didn't have to be the states. He suggested the parties work out a compromise on the states to be included in the proposed bellwether. Ms. Dawson also attacked the proposed bellwether as the "procedural maneuvering" of plaintiffs' lawyers designed to "game the system." The case was brought on behalf of 23 class representatives and implicates 40 million vehicles over 13 years -- not an adequate bellwether that could "facilitate resolution" of the litigation, she said. "The key question is whether Plaintiffs' proposed economic loss classes consisting of significantly different consumers with more than 30 vehicle models spanning 13 model years, the vast majority of whom do not claim an unintended acceleration event, should be certified at all," Toyota spokeswoman Celeste Migliore said in a prepared statement following the hearing. "Backed by strongly supportive case law, we are confident that no common class of litigants exists and that plaintiffs are not entitled to individual or class-wide relief." Judge Selna's proposal launched an argument over discovery. Mr. Berman said plaintiffs' lawyers already had provided Toyota with depositions of 10 class members who, with 32 named plaintiffs in the proposed class action, would be enough for Toyota to mount an adequate defense. He added that the plaintiffs had provided Toyota with 80 fact sheets. Ms. Dawson said Toyota still needed to conduct discovery in actions originating outside California. Not doing so would violate Toyota's due process right to assert defenses under other state laws, she said. Judge Selna said he was not prepared to allow that expansion of discovery -- if for no other reason because of the enormous resources entailed that would steer the litigation away from its trial dates. In addition to the class action, Judge Selna suggested that another personal injury or wrongful death bellwether case -- this time, of Toyota's choosing -- should go to trial in late 2013. The first case, selected by the plaintiffs, involves a Utah resident named Paul Van Alfen who lost control of his allegedly accelerating 2008 Camry while on an exit ramp off Interstate 80. The crash killed Mr. Van Alfen and another passenger and injured two other passengers in the car. Judge Selna dismissed that case on federal jurisdictional ground on Sept. 29, but plaintiffs' lawyers filed an amended complaint, dropping as a defendant Utah dealership that serviced the vehicle. During the hearing, Judge Selna approved the revised complaint as the first bellwether. The next hearing in the multidistrict litigation proceeding is Dec. 9. UC-BERKELEY: Police Sued for Jailing Non-Violent Protestors ----------------------------------------------------------- Nick McCann at Courthouse News Service reports that in a federal class action, six students say UC-Berkeley police needlessly, and punitively, handcuffed and jailed them for participating in a teach-in to protest education cuts and tuition hikes. Lead plaintiff Callie Maidhof and her co-plaintiffs participated in a week-long teach-in called "Open University" in December 2009. They sued two university officials, the campus police chief and an officer on behalf of the 66 students who were arrested. Open University was called for the week before final exams, and university officials decided not to prevent students from setting up the event in Wheeler Hall. Wheeler Hall was a center of the Free Speech Movement in 1964, and has frequently been occupied by student activists ever since. "The students planned to discuss the ongoing university budget cuts, tuition increases, and the impact of lack of funding on the state and education in general," according to the 12-page civil rights complaint. "The Open University was intended to highlight the skewed priorities of the University of California system." Students began occupying Wheeler Hall on Monday, Dec. 7, and police officers agreed to let them stay in the building overnight if they kept the area clean, let janitors enter the building, and did not disrupt study sessions. The university agreed to let students occupy the building until Saturday, but upon learning of a concert scheduled for Wheeler Hall, officials held a meeting to discuss their options. "During this meeting, university officials decided to ignore their previous agreement with the students and have all the participants in the Open University arrested," the complaint states. On Saturday night, an officer read a dispersal order to the students, telling them to leave the building. "This was the same dispersal order that had been read on other nights, however, the police indicated that it was a formality and that the students' activities were sanctioned by the administration," the complaint states. Apparently not. Police sealed off Wheeler Hall sometime between 4 and 5 a.m. and began handcuffing students as they slept, arresting 66 people. "All 66 students were herded into the basement, processed, interrogated, and, after several hours, transported to the Alameda County Jail instead of being issued citations and released," the complaint states. The students say, "The policy of jailing nonviolent protesters is punitive and a violation of the protesters' rights to freedom of speech and assembly." They seek punitive damages for constitutional violations and "damage to reputation, humiliation, mental anguish and emotional distress." Named as defendants are UC-Berkeley Chancellor Robert Birgeneau, Vice-Chancellor Harry Le Grande, Police Chief Mitchell Celaya, and Officer Marc Decoulode. A copy of the Complaint in Maidhof, et al. v. Celaya, et al., Case No. 11-cv-04971 (N.D. Calif.), is available at: http://www.courthousenews.com/2011/10/13/BerkeleyProtests.pdf The Plaintiffs are represented by: Dan Siegel, Esq. Vylma Ortiz, Esq. Kevin Brunner, Esq. SIEGEL & YEE 499 14th Street, Suite 220 Oakland, CA 94612 Telephone: (510) 839-1200 E-mail: DanSiegel@siegelyee.com UNITED STATES: DoD Faces Class Action Over TRICARE Data Theft ------------------------------------------------------------- Bob Brewin, writing for Nextgov, reports that an Air Force veteran of the first Iraq war and a military spouse and her two children have hit the Defense Department with a class action lawsuit seeking $4.9 billion in damages from the theft of a computer tape containing personal and sensitive health information from the car of an employee of Science Applications International Corp., a contractor with the TRICARE Health Management Activity. The company was not named as a defendant in the action. The suit, filed on Oct. 10 by the law firm Shulman, Rogers, Gandal, Pordy & Ecker of Potomac, Md., seeks $1,000 in damages for all 4.9 million TRICARE beneficiaries whose records were on the computer tape stolen Sept. 13 from the SAIC employee's car in San Antonio. TRICARE and Defense Secretary Leon Panetta are named as defendants. Plaintiffs in the case are Virginia Gaffney of Hampton, Va., a TRICARE beneficiary described as the spouse of a decorated war veteran, along with her two dependent children, and Adrienne Taylor of Glendale, Ariz., an Air Force Operation Desert Storm veteran who also is a military spouse and TRICARE beneficiary. The suit, filed in the U.S. District Court for the District of Columbia, charges that TRICARE "flagrantly disregarded" the privacy rights of TRICARE beneficiaries by failing to take the necessary precautions to protect their identity. The complaint said data on the stolen computer tape was "unprotected, easily copied . . . [and TRICARE] inexplicably failed to encrypt the information." TRICARE "compounded its dereliction of duty by authorizing an untrained or improperly trained individual to take the highly confidential information off of government premises and to leave unencrypted information in an unguarded car in a public location, from which it was stolen by an unknown party or parties," the suit alleged. The "intentional, willful and reckless disregard of plaintiffs' privacy rights caused one of the largest unauthorized disclosures of Social Security numbers, medical records and other private information in recent history," the complaint charged. TRICARE has acknowledged that the stolen computer tape contained a wealth of patient information including clinical notes, laboratory tests, prescriptions, diagnoses, treatment information, and provider names and locations. But, when it announced the theft -- which it called a "data breach" -- on Sept. 30, TRICARE downplayed the ability of anyone to access the information on the tape. "The risk of harm to patients is judged to be low despite the data elements involved since retrieving the data on the tapes would require knowledge of and access to specific hardware and software and knowledge of the system and data structure," the military health program said. The class action lawsuit disputed this assertion, alleging that "personal information on the computer tape could be retrieved by the name of an individual or by an identifying number, symbol or other identifying data assigned to an individual." The theft of the computer tape, the complaint charged, has exposed the medical and personal information of all four plaintiffs to the possibility of identity fraud and resulted in "emotional upset" due to the invasion of privacy. TRICARE declined to provide credit monitoring services in the wake of the tape theft, and, as a result, the complaint said, both Ms. Gaffney and Ms. Taylor purchased such services on their own to protect against identity theft, incurring an ongoing economic cost. The lawsuit asked the court to direct TRICARE to provide free credit monitoring services to all 4.9 million beneficiaries whose personal information was on the stolen tape and to reimburse those who had already purchased such services on their own. This could slam TRICARE with another hefty bill. When the Veterans Affairs Department discovers a loss, theft or exposure of this kind, it routinely offers credit monitoring services and up to $1 million annually in identity theft protection at a cost per veteran of $29.95 a year. At that rate, it would cost TRICARE $146.8 million to provide credit monitoring services to 4.9 million people. Shulman, Rogers also wants to use the lawsuit to reform what it considers poor practices by Defense and TRICARE to maintain the privacy of personal information. Defense and TRICARE, the suit said, "have repeatedly demonstrated an inability or unwillingness to implement or [have a] callous disregard for fundamental procedures to provide minimally acceptable safeguards to prevent against the disclosure of personal and private information in their possession." The suit asks the court to bar TRICARE and Defense from transferring a record or system of records covered by the Privacy Act "until an independent panel of experts finds that adequate information security has been established." The court also should prohibit Defense and TRICARE from transporting any records off government property unless they are fully encrypted, and SAIC should not be allowed to transport any records until an independent expert panel determines the company has established adequate information procedures, the lawsuit said. TRICARE and SAIC declined to comment on the lawsuit. VISA INC: Faces Class Action in D.C. Over ATM Fee Price-Fixing -------------------------------------------------------------- William Dotinga at Courthouse News Service reports that Visa and MasterCard are "ringleaders and enforcers" of a nationwide scheme to fix the surcharges that consumers pay to use ATM machines -- and "every principal U.S. bank" is in on the deal, the National ATM Council claims in an antitrust class action. Joined by 13 other associations in Federal Court, The National ATM Council claims that "the banks collectively have ceded power and authority to Visa and MasterCard to design, implement, and enforce a horizontal price-fixing restraint in which they are knowing participants. In short, the violation in this case is a horizontal agreement among every bank that issues Visa- or MasterCard-branded payment cards -- including every principal U.S. bank -- organized and supervised by the defendants as ringleaders and enforcers for the purpose of fixing the surcharge that consumers pay for ATM services." The plaintiffs say that to offer ATM services to Visa and MasterCard holders, the credit-card giants force them to charge the same transaction fee to consumers regardless of what card or network the consumers use. While operators may charge any surcharge they wish, the surcharge must be the same for all customers, the class claims. In other words, a customer of a nonbank ATM who uses a Discover card or a STAR network card -- which cost less to use -- must pay the same surcharge as someone who uses a card with the Visa or MasterCard logo. The class defines itself as "approximately 350 nonbank, independent sales organizations ('ISOs') that are sponsored by one or more sponsoring financial institutions and are registered with Visa and MasterCard as 'registered ATM ISOs,' together with an even greater number of the ISOs' ATM-operating contractual affiliates". The plaintiffs say, "Independent ATM operators deploy slightly more than half of the ATMs presently in service in the United States, or approximately 200,000 terminals." The class's lead counsel Jonathan Rubin told Courthouse News: "Visa and MasterCard look like suppliers to the banks, but they're really the banks' alter egos. . . . The [individual] banks are the co-conspirators, but it's not necessary to sue each of them because Visa and MasterCard are the banks." There should be "differential surcharging," Mr. Rubin said. "Prices should reflect the cost to produce. Without that give and take we can't have a competitive marketplace." Mr. Rubin added: "Most consumers have no idea what the costs are -- there is no transparency" in the banking industry regarding ATM network pricing. "It's the cartel manager theory." The 21-page complaint claims that the constraints upon ATM operators "unreasonably restrain competition in the market for ATM services in the United States" and "restrain trade and interstate commerce" in violation of Section 1 of the Sherman Act. The plaintiffs seek an injunction against price fixing, which would allow cardholders to choose their ATM network, and treble damages. A copy of the Complaint in The National ATM Council, Inc., et al. v. Visa Inc., et al., Case No. 11-cv-_____ (D.D.C.), is available at: Brooks E. Harlow, Esq. David A. LaFuria, Esq. LUKAS, NACE, GUTIERREZ & SACHS, LLP 8300 Greensboro Drive, Suite 1200 McLean, VA 22101 Telephone: (703) 584-8678 - and - Jonathan L. Rubin, Esq. RUBIN PLLC 1250 24th Street, N.W., Ste. 300 Washington, DC 20037 Telephone: (202) 776-7763 E-mail: jr@rubinpllc.com - and - Don A. Reskinoff, ESq. FINKELSTEIN THOMPSON LLP 1050 30th Street, N.W. Washington, DC 20007 Telephone: (202) 337-8000 E-mail: dresnikoff@finkelsteinthompson.com ********* 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 written permission of the publishers. Information contained herein is obtained from sources believed to be reliable, but is not guaranteed. The CAR subscription rate is $575 for six months delivered via e-mail. Additional e-mail subscriptions for members of the same firm for the term of the initial subscription or balance thereof are $25 each. For subscription information, contact Christopher Beard at 240/629-3300. * * * End of Transmission * * *