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/raid1/www/Hosts/bankrupt/CAR_Public/111024.mbx C L A S S A C T I O N R E P O R T E R Monday, October 24, 2011, Vol. 13, No. 210 Headlines AGFEED INDUSTRIES: Robbins Umeda Files Securities Class Action AMERICAN INVSCO: Nev. Ct. Denies Certification of Taddeo Suit ARMTEC INFRASTRUCTURE: Faces Securities Class Action in Quebec BBG COMMUNICATIONS: Faces Class Action Over Exorbitant Call Fees CORNERSTONE EXTERIORS: Engages in Deceptive Practices, Suit Says DRUG RETAILERS: Judge Remands Class Action to Minnesota Court EL PASO: Being Sold to Kinder for Too Little, Texas Suit Claims ENTRUST GROUP: Sued Over Indemnification Clause in IRA Agreements FLORIDA: Faces Class Action Over In-State College Tuition Policy K-V PHARMACEUTICAL: Scott+Scott Files Securities Class Action LINCOLN EDUCATIONAL: NJ Dist. Ct. Dismisses Securities Suit MEIJER: Recalls 3,200 Units of Roman Shades and Roll-Up Blinds PILKINGTON NORTH AMERICA: Court Approves Class Action Settlement REEBOK: Consumer Law Group Files Class Action Over Toning Shoes RESEARCH IN MOTION: May Face Lawsuits Over BlackBerry Outages SAFELITE SOLUTIONS: Plaintiffs' Bid to Expand Class Action Fails SOTHEBY'S: Faces Class Action Over Artwork Resale Royalties SUPERSHUTTLE INT'L.: 8th Cir. Affirms Arbitration, Flips Dismissal TEXTRON INC: Dist. Ct. Rules on Motion to Dismiss ERISA Suit ********* AGFEED INDUSTRIES: Robbins Umeda Files Securities Class Action -------------------------------------------------------------- Robbins Umeda LLP disclosed that it commenced a class action lawsuit on October 18, 2011, in the U.S. District Court for the Middle District of Tennessee, Nashville Division, on behalf of all persons or entities who purchased or otherwise acquired the securities of AgFeed Industries, Inc. between March 16, 2009 and August 2, 2011. The action is against the Company and certain of the Company's officers for violations of the Securities Exchange Act of 1934. AgFeed is an international agribusiness that deals in animal nutrition products and commercial hog production in the United States and China. During the Class Period, the Company's principal executive offices were located in Hendersonville, Tennessee. However, the Company's executive offices are currently located in Grand Junction, Colorado. The complaint alleges that beginning on March 16, 2009, the Company, along with certain officers and directors at AgFeed, issued a series of materially false and misleading statements to investors about its financial health that were designed to deceive the market and cause shares of AgFeed to trade at artificially high prices. In particular, the complaint alleges that officials at the Company failed to disclose to investors material adverse facts that: (1) AgFeed's collection efforts and credit dealings with its animal nutrition customers were not working because the "formula based analysis" the Company relied on in determining accounts receivable and reserves for doubtful accounts was flawed; (2) allowances for doubtful accounts were wildly undervalued; (3) accounts were overvalued and bad debts were undervalued, causing reported asset values to be overstated and expenses to be understated; and (4) AgFeed exaggerated its market edge as the combination of overstated assets and understated expenses resulted in creating an illusion of heightened profitability and failed to provide a "long-term picture" of the Company's value. On August 2, 2011, the Company announced preliminary financial results for the second quarter of 2011 that showed that the Company was performing well below expectations and that AgFeed expected to post a loss of $17 million, as it added $5 million in allowances for its bad debt expenses. Additionally, on August 9, 2011, AgFeed disclosed to the U.S. Securities and Exchange Commission the true nature of its finances and the Company's decision to withdraw the Registration Statement for its animal nutrition business. Since these revelations have emerged, shares of AgFeed have lost over 72% of their value. If you purchased or otherwise acquired AgFeed stock during the Class Period and wish to serve as lead plaintiff, you must move the Court no later than 60 days from October 18, 2011. To discuss your shareholder rights, please contact attorney Gregory E. Del Gaizo at 800-350-6003 or via the shareholder information form. Robbins Umeda LLP -- http://www.robbinsumeda.com-- represents individual and institutional shareholders in derivative, direct, and class action lawsuits. AMERICAN INVSCO: Nev. Ct. Denies Certification of Taddeo Suit ------------------------------------------------------------- Judge Kent J. Dawson of the U.S. District Court for the District of Nevada denied the motion to certify as a class action the complaint captioned as Frank Taddeo, et al. v. American Invsco Corporation, et al., Case No. 2:08-CV-01463-KJD-RJJ (D. Nev.) The plaintiffs proposed to name Amelia Taddeo, Frank Taddeo, Marcy Heldt and Victor Heldt as class representatives. They sought to certify a class of "512 owners of the Meridian Condominium Units" who purchased units in 2005 to 2007. The Court found that the proposed class representatives are inadequate to prosecute that action because the Taddeos' agreement was different from other class members, and the Helts do not appear to be parallel to other class members in that they are the only members who financed their purchase on their own. The Court also expressed doubts as to the qualifications of the class counsel. "The conduct of Plaintiffs' counsel in this proceeding, including failure to timely respond to discovery requests, inadequacy in framing their complaints, failing to name Class representatives with claims against all defendants, and lack of decorum during depositions do not inspire confidence in the ability of Plaintiffs' counsel to adequately represent the interests of the Class," Judge Dawson said. Judge Dawson allowed the plaintiffs to amend only the requests for admission that the claims of the class representatives are not typical and that common questions of law or fact do not predominate over individual questions. A copy of the District Court's Sept. 7, 2011 Order is available at http://is.gd/leyKqZfrom Leagle.com. ARMTEC INFRASTRUCTURE: Faces Securities Class Action in Quebec -------------------------------------------------------------- Siskinds, Desmeules on Oct. 19 announced the filing in the Quebec Superior Court of a proposed class action against Armtec Infrastructure Inc., and certain of Armtec's senior officers and directors. The proposed class includes all persons and entities resident in Quebec who acquired securities of Armtec from March 30, 2011, to June 8, 2011, including those who purchased Armtec shares in the April 2011 prospectus offering, and those who purchased Armtec securities in the secondary market during the Class Period. The action alleges, among other things, that the defendants failed to disclose in the prospectus or on a timely basis that the performance of Armtec's engineered solutions business in the first quarter of 2011 was adversely affected by deteriorating margins, and that the performance of Armtec's construction and infrastructure applications business in the first quarter of 2011 was adversely affected by unprecedented weather conditions. The proceeding in Quebec will be coordinated with a parallel case filed in the Ontario Superior Court of Justice by Siskinds LLP, with which Siskinds Desmeules is affiliated. BBG COMMUNICATIONS: Faces Class Action Over Exorbitant Call Fees ---------------------------------------------------------------- Iulia Filip at Courthouse News Service reports that the company with the pay-phone concession in the secured military area at a German airport used by U.S. troops in transit to and from combat zones rigged the phones to charge a minimum of $41 per call, even for a call that lasts just a few seconds, an Army sergeant and his wife say in a federal class action. Sgt. Richard Corder claims BBG Communications and its affiliate BBG Global AG target U.S. troops on their way to or from Iraq and Afghanistan, who are unlikely to have cash or any other method to call home. Sgt. Corder says BBG programmed the phones to accept only cash, credit and debit cards, and does not warn of the exorbitant fees it charges. "There is not so much as a simple sign to warn the troops what will happen once they use a credit card to make a call home," Sgt. Corder says in his complaint. He adds: "BBG instructed individuals to rig this phone bank so that it could not accept any calling cards, either pre-paid or even ones purchased by military personnel on military bases, or to permit military personnel to access 1-800 numbers to contact long distance carriers such as AT&T. It was a deliberate move to prey on the troops. Thus, as set up by BBG, service personnel's only realistic option was to use a credit or debit card to pay to use the phone banks to contact their families. Based on how BBG intentionally programmed these phones, military personnel had no realistic alternative available to them other than not call their loved ones to tell them they were on the way to military combat or shortly returning home. Nowhere on these phones does BBG disclose that it will automatically charge military personnel over $40.00, simply to leave a message of for a 4-second telephone call, using a credit or debit card." BBG and its affiliates are part of a group of companies owned and operated by the Galicot family based in San Diego and Tijuana. According to the complaint, BBG took over the operation of most phones in the military-restricted zone of the Leipzig airport in 2008, after Leipzig became the main refueling stop for most troops in transit to or from Iraq and Afghanistan. Sgt. Corder says BBG Communications uses Switzerland-based BBG Global as "a front organization designed to avoid being held responsible for such unconscionable practices." Both companies are 95% owned by Gregorio and Rafael Galicot, who operate them from San Diego. The complaint states: "Since 2007 tens if not hundreds of thousands of U.S. troops have been at the Leipzig, Germany airport where U.S. troop flights refuel, many of them overcharged for phone calls, even though they are United States military personnel both going to and coming back from military combat in Iraq and Afghanistan and this is their only opportunity to contact their relatives. The defendants operate or provide services for a bank of a significant number of pay telephones located in the secured military lounge area at that airport. Because this is a secured military area, it can only be accessed by military personnel. BBG has rigged the phones so that troops who use the phones are charged $41 at a minimum for calls, even if the call only lasts a matter of seconds. This scheme has allowed the Galicot family that owns BBG to pocket millions of dollars from our troops. The troops want their money back. "Defendants have intentionally programmed the pay telephones located in this secured military area so that they cannot accept forms of non-cash payment other than credit and debit cards, including military-sold calling cards. Because these servicemen and women are just coming back from or heading out to long tours of duty, they in all likelihood have no change to make a coin- operated telephone call. Thus, there is only one phone bank they can use to call their loved ones and tell them they are leaving or coming home, and they have no viable option other than to use a credit or debit card to pay for the call. "Defendants are responsible for preparing the art work on these phones and either do so or approve its use from their offices in the United States. Nowhere do defendants disclose on the telephones the fees they impose, or warn servicemen and women in advance the exorbitant amounts they will be charged, even for a call lasting just a few seconds, or even clearly and conspicuously tell them how to find out the fees. The plaintiffs, for example, were charged over $41.00 for a four-second telephone call -- a charge that works out to a fee of over $615.00 a minute! Moreover, BBG has instructed the agent operator representatives, including Centris Information Services ('Centris') out of Longview, Texas, not to disclose automatically the amount of fees charged, unless affirmatively asked to divulge what the charge may be -- even though they know at the outset the minimum charge to make a call from this phone bank will be over $40.00. This illegal and unconscionable conduct is in violation of the laws stated herein. "BBG specifically targeted this bank of phones, previously operated by one of its joint venture partners, so that they could control them, direct their conduct at military personnel and charge the outrageous fees they unilaterally impose. BBG knew these troops were vulnerable as few if any would have proper coins much less cell phones that would work in the area upon returning from combat zones. Even within BBG this conduct was challenged as improper. But putting profits over any sense of responsibility, duty or fairness, BBG's officers including the Galicot family members and others chose to impose unconscionable fees on military personnel on what was likely to be their first or last direct American contact in months, if not years. Defendants have made millions from this scheme, allowing their officers and directors to live in mansions while soldiers from Ft. Hood and elsewhere were forced to use their limited incomes and resources while serving our country on multiple deployments to make such calls." Sgt. Corder, who is based at Fort Hood, says he called his wife in May from the Leipzig airport, on his way to Iraq, and paid more than $41 for a 4-second call. "Sgt. Corder made a call to his wife Dharma from the Leipzig, Germany waiting lounge as he was heading off to military combat in Iraq in May 2011. He used his family's joint account Visa debit card to make that telephone call, as he had no option but to use a credit or debit card. The call lasted four seconds, as he reached his wife's cell phone voicemail. BBG charged them $41.14 for that four-second telephone call. There were no disclosures on the phone that indicated the outrageous fees BBG would impose on military personnel that used those phones." Sgt. Corder says his wife tried to dispute the charge, but BBG would not cooperate. He says she went online and found a phone number, and "hundreds and hundreds of complaints" about BBG's practices. When Sgt. Corder's wife finally reached BBG, a representative asked for Sgt. Corder's debit card number and refused to take further action without it. In July, Sgt. Corder's wife sent a demand letter to BBG, who failed to respond, according to the complaint. "This is not an isolated circumstance, but is the practice undertaken by BBG targeted at those who serve our country with distinction. BBG has received similar calls from service personnel and their families nationwide complaining of such charges, but has consistently refused to fully refund such amounts," the complaint states. Sgt. Corder says he represents thousands of military personnel members who, since at least 2008, used the BBG-operated phones in the secure military area at Leipzig and were overcharged. Sgt. Corder says BBG charges a $15 "connection fee" and a minimum charge of $25 for 5 minutes, regardless of call duration. He says BBG does not post these uniform charges anywhere on its phones and instructs its representatives not to disclose them unless directly asked about them. Sgt. Corder adds: "As a result of programming the phones in this way, defendants have been able to charge unconscionable price premiums and drain money from the bank accounts of military personnel who have limited incomes. Defendants are aware of numerous complaints over this practice, since, as noted above, they have received similar calls and complaints about these charges, both internally and from military personnel and their families. Defendants thus have had the above material information in their possession for years, but have not stopped such practices so they can continue to support their personal extravagance at the expense of our troops, being unjustly enriched in the process." The 30-page complaint includes statements from a dozen other GIs and spouses, complaining of the "insulting" treatment. The final excerpt, from a mother whose son was charged $151 for a phone call on his first deployment, concludes: "More people need to step up and write their senators . . . and let them put an end to this fraudulent scam." The Corders seek class certification, restitution and damages for breach of contract, fraud and unjust enrichment, and they want BBG enjoined from deceptive business practices. A copy of the Complaint in Corder, et ux. v. BBG Communications, Inc., et al., Case No. 11-cv-00264 (W.D. Tex.), is available at: http://www.courthousenews.com/2011/10/19/VetCalls.pdf The Plaintiffs are represented by: Jim Dunnam, Esq. DUNNAM & DUNNAM, L.L.P. 4125 West Waco Drive P.O. Box 8418 Waco, TX 76714-8418 Telephone: (254) 753-6437 - and - John G. Emerson, Esq. EMERSON POYNTER LLP 830 Apollo Lane Houston, TX 77058-2610 Telephone: (281) 488-8854 E-mail: jemerson@emersonpoynter.com - and - Scott E. Poynter, ESq. Chris D. Jennings, Esq. William T. Crowder, Esq. Corey D. McGaha, Esq. EMERSON POYNTER LLP 500 President Clinton Ave., Ste. 305 Little Rock, AR 72201 Telephone: (501) 907-2555 E-mail: scott@emersonpoynter.com cjennings@emersonpoynter.com wcrowder@emersonpoynter.com cmcgaha@emersonpoynter.com - and - Alan M. Mansfield, Esq. THE CONSUMER LAW GROUP 9466 Black Mountain Rd., Suite 225 San Diego, CA 92126 Telephone: (619) 308-5034 E-mail: alan@clgca.com - and - Joe R. Whatley, Jr., Esq. Edith M. Kallas, Esq. Patrick J. Sheehan, Esq. WHATLEY DRAKE & KALLAS, LLC 380 Madison Avenue, 23rd Floor New York, NY 10017 Telephone: (212) 447-7070 E-mail: psheehan@wdklaw.com - and - John Mattes, Esq. 1666 Garnet Avenue, #815 San Diego, CA 92109 Telephone: (858) 412-6081 E-mail: investigativeguy@gmail.com CORNERSTONE EXTERIORS: Engages in Deceptive Practices, Suit Says ---------------------------------------------------------------- Andriy Klymenko, individually and on behalf of all others similarly situated v. Cornerstone Exteriors, LLC, an Illinois limited liability company, Jason Chi, individually, Case No. 2011- CH-36137 (Ill. Cir. Ct., Cook Cty., October 18, 2011) is brought on behalf of customers of Cornerstone, who contracted for certain home repair services provided by the Defendant. Mr. Klymenko asserts that Cornerstone engaged in deceptive and fraudulent practices when it acted as a public insurance adjuster under contracts, without a valid license in the state of Illinois. Mr. Klymenko is a resident of Illinois. Cornerstone is an Illinois limited liability company headquartered in Schaumburg, Illinois. Jason Chi is a managing member of Cornerstone, and is a resident of Illinois. The Plaintiff is represented by: Nazar Kashuba, Esq. DEMCHENKO & KASHUBA, LLC 2338 West Belmont, 2nd Floor Chicago, IL 60618 Telephone: (773) 360-8805 Facsimile: (773) 360-8809 E-mail: nkashuba@dk-attorneys.com DRUG RETAILERS: Judge Remands Class Action to Minnesota Court ------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that a federal magistrate judge has suggested that a class action brought by a West Virginia law firm that drew the ire of the judge who formerly presided over the case should be heard in a state court. Magistrate Judge Janie Mayeron issued her report and recommendation on Oct. 13 in a lawsuit brought against prescription drug retailers that allegedly did not pass savings on generic drugs to consumers. In suggesting remand to Hennepin County, she followed a decision by a Michigan federal court in similar cases. Former U.S. District Judge James Rosenbaum, in dismissing the complaint in 2009, called the allegations "laughable." He allowed Bailey & Glasser of Charleston, W.Va., to amend the complaint, and the dispute over remand ensued. The defendants -- which include CVS, Target and Wal-Mart -- argued the remand motion was untimely because it took the plaintiffs more than 100 days from the time the suit was removed to federal court. "(T)he court is satisfied that plaintiffs and their counsel did not know that they had a reasonable basis for pursuing a remand until after the Michigan court issued its remand decision on Dec. 1, 2009," Judge Mayeron wrote. "In fact, the evidence before this court establishes that plaintiffs did not believe that the (Class Action Fairness Act) local controversy exception applied to this case, even after the Michigan court raised the issue at the pretrial conference." The defendants had appealed Judge Rosenbaum's remand order to the U.S. Court of Appeals for the Eighth Circuit, which overturned the order and directed the district court to determine if the plaintiffs' remand motion was made within a "reasonable" time frame. U.S. District Judge Michael Davis was assigned the case after Judge Rosenbaum retired. In November 2009, Judge Rosenbaum was annoyed that the complaint, filed against 13 defendants on behalf of unions that provide health care for their members, contained specific pricing information about only two of them. "(T)his Complaint utterly fails to state a cause of action on any basis. There are no, none, factual allegations touching any defendant other than CVS and Walgreen's," Rosenbaum said. "There being no facts from which a fact finder could infer any liability concerning (the other defendants), and you asked me to sustain a complaint based upon that. It's not only laughable, it's absolutely reprehensible. "There's not a lawsuit here. There is not a claim. There is not an allegation. I've got words on a page." The lawsuits in Michigan were dismissed by a state judge because the only specific pricing information was obtained by a West Virginia whistleblower who worked at Kroger. The firm is also representing West Virginia Attorney General Darrell McGraw's office in a suit filed in the Mountain State. Currently, the two sides are fighting over whether the lawsuit should be heard in federal court, with the drug stores claiming it is a class action. They have appealed a Fourth Circuit ruling to the U.S. Supreme Court. EL PASO: Being Sold to Kinder for Too Little, Texas Suit Claims --------------------------------------------------------------- Courthouse News Service reports that El Paso Corp. is selling itself too cheaply through an unfair process to Kinder Morgan, for $26.87 a share, or $38 billion, shareholders say. A copy of the Complaint in Johnson v. El Paso Corporation, et al., Case No. 2011-62339 (Tex. Dist. Ct., Harris Cty.), is available at: http://www.courthousenews.com/2011/10/19/SCA.pdf The Plaintiff is represented by: Thane Tyler Sponsel III, Esq. SCHWARTZ, JUNELL, GREENBERG & OATHOUT, LLP Two Houston Center 909 Fannin, Suite 2700 Houston, TX 77010 Telephone: (713) 752-0017 E-mail: tsponsel@sjgolaw.com - and - Randall J. Baron, Esq. A. Rick Atwood, Jr., Esq. David T. Wissbroecker, Esq. Edward M. Gergosian, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 - and - Gregory M. Nespole, Esq. WOLF HALDENSTEIN ADLER FREEMAN & HERZ, LLP 270 Madison Avenue New York, NY 10016 Telephone: (212) 545-4600 E-mail: nespole@whafh.com ENTRUST GROUP: Sued Over Indemnification Clause in IRA Agreements ----------------------------------------------------------------- Donald Keller, Individually and on Behalf of all others similarly situated v. The Entrust Group, Inc., Case No. 3:11-cv-05098 (N.D. Calif., October 17, 2011) asserts money damages, injunctive, equitable, and declaratory relief on behalf of those who have opened an Individual Retirement Account ("IRA") with Entrust Group. Mr. Keller alleges that in its standard form account agreements, Entrust Group requires that it be indemnified against losses, which causes premature distributions under the regulations of the Internal Revenue Service. Mr. Keller contends that the indemnification provisions are designed to benefit Entrust Group by permitting it to take assets in satisfaction of debts incurred in the IRA. Mr. Keller is a resident of Sacramento, California. He opened an IRA in October 2010, which is administered by Entrust Group. Entrust Group provides self-directed retirement plan consulting services and trust, pension administration, and recordkeeping services to individuals and corporations, who wish to include non- traditional assets as part of their tax-deferred and tax-free portfolios. Entrust is headquartered in Oakland, California. The Plaintiff is represented by: Ryan Bakhtiari, Esq. AIDIKOFF, UHL & BAKHTIARI 9454 Wilshire Boulevard, Suite 303 Beverly Hills, CA 90212 Telephone: (310) 274-0666 Telecopier: (310) 859-0513 E-mail: rbakhtiari@aol.com - and - Mark E. Maddox, Esq. MADDOX HARGETT & CARUSO, P.C. 10100 Lantern Rd., Suite 150 Fishers, IN 46037 Telephone: (317) 598-2040 Telecopier: (317) 598-2050 E-mail: mmaddox@mhclaw.com - and - Tim Berry, Esq. TIM BERRY P.C. 2200 E. William Field Road, Suite 200 Gilbert, AZ 85295 Telephone: (602) 652-2875 E-mail: tim@iraideas.com FLORIDA: Faces Class Action Over In-State College Tuition Policy ---------------------------------------------------------------- FlaglerLive reports that a class action is challenging Florida's in-state college tuition restrictions. Wendy Ruiz is an American citizen, a native of Miami, where she was born in 1992. She has a Florida birth certificate. She has a Florida high school diploma. She has a Florida voter registration card, a Florida driver's license and a Florida bank account. She is an honor student in her second year at Miami Dade College -- as an out-of-state student. Ms. Ruiz is paying $377 per credit hour, instead of the $105.50 afforded in-state residents. That works out to an annual tuition and fees bill of $9,000 instead of the $2,500 in-state residents pay. Ms. Ruiz can't afford the normal, 12-credit-per-semester load, though that's what she'd rather take. So she'll end up taking three years to finish her two-year degree. Why? Because her parents cannot show proof of her parents' legal immigration status. Florida's college and university system's rule is unbending. A student's residency status is irrelevant no matter how American, no matter how Floridian. Ms. Ruiz could have been Miss Florida for all the university system cares. It's her parents' residency status that counts, which also means that for countless students whose parents are being forced to move out of the state for economic reasons, they take their child's in-state rate away with them. Or take Noel Saucedo. He, too, is an American citizen. He's old enough to vote. He was born in Miami in 1996, and has lived continuously in the state since 2006. He has all the documents Ruiz has. He was also a good student. He was awarded a full scholarship to attend Miami Dade College. But unable to provide proof of his parents' legal residency in Florida, he had to pay the out-of-state tuition rate, which negated most of the advantage of his scholarship and preventing him, too, from taking a full load at the school. Last March, he tried to enroll at Florida International University. He was asked for his parents' lawful immigration status. He didn't have it. He wasn't even allowed to go on with his application. American citizens, Florida residents, denied their right to an education on terms equal to their equals. The stories go on, student after student. On Oct. 19, in federal district court, the Southern Poverty Law Center filed a class-action lawsuit on behalf of the students against Gerard Robinson, the Florida Commissioner of Education and Frank Brogan, chancellor of the State University System (and former education commissioner), challenging Florida's rule as it applies to legal Florida residents whose parents have no similar proof. The suit charges that Florida's rule is unconstitutional under the 14th Amendment's equal protection clause, and that it is in conflict with federal law, which recognizes the students as legal residents -- and overrides state rules. "These policies attack our most fundamental American values by punishing children for the actions of their parents," said Jerri Katzerman, director of educational advocacy for the Atlanta- based Southern Poverty Law Center, a human rights and advocacy organization. "It's an unconscionable attack on students from immigrant families that more than triples the cost of a college education." "These American students went to the same Florida high schools, held down the same part-time jobs and participated in the same after-school activities as their counterparts who are granted in- state tuition," said Tania Galloni, managing attorney for the SPLC's Florida office. "We are simply asking that these students be granted the same rights as all other Florida citizens." The lawsuit is part of the center's effort to reform school policies that unnecessarily push students out of school or otherwise limit their opportunities for a successful future. The center's efforts are focused in Alabama, Florida, Louisiana and Mississippi. A copy of the complaint, filed on Oct. 19 in the U.S. District Court for the Southern District of Florida in Miami, is below. http://flaglerlive.com/29742/in-state-tuition-lawsuit-florida K-V PHARMACEUTICAL: Scott+Scott Files Securities Class Action ------------------------------------------------------------- On October 19, 2011, Scott+Scott LLP filed a class action complaint against K-V Pharmaceutical Company and certain of the Company's officers in the U.S. District Court for the Eastern District of Missouri. The action for violations of the Securities Exchange Act of 1934 is brought on behalf of those purchasing the common stock of K-V between February 14, 2011, and April 4, 2011, inclusive. If you purchased the common stock of K-V during the Class Period and wish to serve as a lead plaintiff in the action, you must move the Court no later than 60 days from Oct. 19. Any member of the investor class may move the Court to serve as lead plaintiff through counsel of its choice, or may choose to do nothing and remain an absent class member. If you wish to discuss this action or have questions concerning this notice or your rights, please contact: Scott+Scott LLP Telephone: (800) 404-7770 (860) 537-5537 E-mail: scottlaw@scott-scott.com or visit the Scott+Scott K-V Pharmaceutical Web site for more information: http://www.scott-scott.com/cases/new/securities-fraud-litigation- 1533-k-v-pharmaceutical-company-kv-a.html There is no cost or fee to you. The complaint filed in the action charges that during the brief Class Period, the Company issued false and misleading statements claiming the Food and Drug Administration had granted K-V the exclusive distribution rights over its "Makena," a drug compound that had previously been prescribed by physicians for decades to prevent miscarriages, and that the agency would enforce those rights by preventing K-V's competitors from distributing generic compounds of Makena. The complaint also alleges that defendants told investors K-V's Makena distribution program was designed to "expand access" to the drug compound, including to low-income and other at-risk groups, while concealing that the $1,500 list price K-V was charging would actually reduce availability of the drug compound to physicians and their patients. As a result, based on a fundamental misperception of K-V's sales and earnings potential, the complaint charges that K-V's stock traded at artificially inflated prices during the Class Period, allowing K-V to sell $200 million worth of senior secured notes, with the proceeds used in large part to pay down the Company's debts. The complaint alleges that the truth began to come to light on March 17, 2011, when two U.S. Senators publicly questioned the bona fides of K-V's distribution program, stating "the financial assistance is not sufficient and does not extend to certain groups of women," and so that in reality, "KV Pharmaceutical's actions will result in diminished access to appropriate health care for women and result in increased preterm births." It is alleged that this partial disclosure caused K-V's stock price to fall precipitously, removing some of the stock inflation. Then, following the FDA's own March 30, 2011 statement that the agency did "not intend to take enforcement action against" K-V's competitors for distributing the generic version of K-V's Makena, K-V's stock fell further on extremely high trading volume. Finally, following K-V's April 1, 2011 disclosure that K-V was reducing Makena's list price by nearly 55% to $690 per injection -- versus the previous list price of $1,500 -- the market learned on April 4, 2011 that many physicians would never prescribe Makena to their patients due to flaws in the distribution program. On this news, K-V's stock price fell an additional 9.5% in a single trading session. Scott+Scott has significant experience in prosecuting major securities, antitrust and employee retirement plan actions throughout the United States. The firm represents pension funds, foundations, individuals and other entities worldwide. LINCOLN EDUCATIONAL: NJ Dist. Ct. Dismisses Securities Suit ----------------------------------------------------------- Judge Stanley R. Chesler of the U.S. District Court for the District of New Jersey dismissed the securities fraud case styled as In re Lincoln Educational Services Corp. Securities Litigation, Civil Action No. 10-460 (SRC) (D. N.J.). The class action was filed on behalf of shareholders who bought the common stock of Lincoln Educational between March 3, 2010, and August 4, 2010. The alleged fraud in the case stems from the defendants' projections about Lincoln's student start growth. Lead plaintiff is Richard Arons. The other named defendants are David Carney, chairman of Lincoln's Board of Directors during the Class Period; Shaun McAlmont, Lincoln's president and chief executive officer; and Cesar Ribeiro, Lincoln's senior vice president and chief financial officer. The Court held that the defendants' alleged misrepresentations are forward-looking statements immune from liability under the Private Securities Litigation Reform Act of 1995's safe harbor provision. "Plaintiff cannot salvage this action by snipping selective words from conference calls and manipulating them in a way that would suggest that a material falsehood was communicated to investors," Judge Chesler said. Accordingly, the plaintiff failed to state a claim for relief under Section 10(b) of the Securities Exchange Act. A full-text copy of the District Court's Sept. 6, 2011 Opinion is available at http://is.gd/gcVeBQfrom Leagle.com. MEIJER: Recalls 3,200 Units of Roman Shades and Roll-Up Blinds -------------------------------------------------------------- * Additional Retail Sales Prompt CPSC and Meijer to Re-announce Roman Shades and Roll-Up Blinds Recall * Strangulation Hazard Posed The U.S. Consumer Product Safety Commission, in cooperation with importer/retailer, Meijer, of Grand Rapids, Michigan, and manufacturer, Whole Space Industries LTD, of Centereach, New York, announced a voluntary recall of about 3,200 units of "Innovations" and "At Home with Meijer" roman shades and roll-up blinds; 240,000 units were originally recalled in March 2010 [http://www.cpsc.gov/cpscpub/prerel/prhtml10/10150.html]. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. Hazard: Roman Shades -- Strangulation can occur when a child places his/her neck between the exposed inner cord and the fabric on the backside of the blind or when a child pulls the cord out and wraps it around his/her neck. Roll-up Blinds -- Strangulation can occur if the lifting loops slide off the side of the blind and a child's neck becomes entangled on the free-standing loop or if a child places his/her neck between the lifting loop and the roll-up blind material. No incidents or injuries have been reported. This recall involves previously recalled "Innovations" and "At Home with Meijer" Roman shades and roll-up blinds that were redistributed to stores and sold to consumers after March 2010 without a repair kit. The Roman shades are made with fabric or bamboo and the roll-up blinds with bamboo. A label reading "Innovation" or "At Home with Meijer" can be found under the headrail. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12012.html The recalled products were manufactured in Taiwan and sold at discount retailers, dollar stores, flea markets and other retail liquidators nationwide from March 2010 through September 2011 at various prices. Originally the products were sold at Meijer stores between January 2004 and December 2009 for about $40 before being recalled. Consumers should immediately stop using the Roman shades and the roll-up blinds and contact the Window Covering Safety Council for a free repair kit at (800) 506-4636 anytime or visit http://www.windowcoverings.org/. Consumers can also return the products to any Meijer store for a full refund. For additional information about this recall, contact Meijer at (800) 927-8699 between 9:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday or visit the company's Web site at http://www.meijer.com/ Note: Examine all shades and blinds in your home. Make sure there are no accessible cords on the front, side, or back of the product. CPSC recommends the use of cordless window coverings in all homes where children live or visit. PILKINGTON NORTH AMERICA: Court Approves Class Action Settlement ---------------------------------------------------------------- At a hearing held in Windsor, Ontario on September 12, 2011, the Ontario Superior Court of Justice approved a settlement of the class action Court File No. CV-08-11573 (Windsor) in respect of Construction Flat Glass against the defendants Pilkington North America. Inc., Pilkington Glass of Canada Limited, Guardian Industries Corp., Guardian Industries Canada Corp., Industries Cover Inc., AGC Flat Glass North America, Inc., PPG Industries, Inc. and PPG Canada Inc. for CDN$1,760,303.24. Persons in Canada who purchased Construction Flat Glass directly from a defendant in the period July 1, 2002, to December 31, 2006, for delivery or pickup in Canada will be entitled to claim direct compensation and should immediately review the full notice and other relevant documents available online at http://www.flatglassclaims.cato understand their legal rights and take the steps necessary to make a claim for compensation before January 20, 2012. Persons in Canada who purchased Construction Flat Glass in the period July 1, 2002, to December 31, 2006, for delivery or pickup in Canada from persons other than the defendants will not be entitled to claim direct compensation because of the cost and difficulty of administering such claims. Compensation for indirect purchasers will be paid out through a distribution to the not-for-profit organizations The Canadian Green Building Council and Habitat for Humanity Canada for the general benefit of those indirect purchasers. THIS NOTICE IS APPROVED BY ORDER OF THE SUPERIOR COURT OF JUSTICE FOR ONTARIO For further information: please contact National Class Action Services toll free at 1-866-329-7153 or by e-mail at info@flatglassclaims.ca The Web site for the Flat Glass Class Action settlement is: http://www.flatglassclaims.ca REEBOK: Consumer Law Group Files Class Action Over Toning Shoes --------------------------------------------------------------- Consumer Law Group Inc. on Oct. 19 announced the filing in the Quebec Superior Court of a proposed national class action lawsuit against Reebok on behalf of individuals who have purchased the footwear EasyTone and RunTone. The class action involves Reebok's false and misleading advertising of EasyTone and RunTone footwear as products that will tone and strengthen the glutes (28%), thighs (11%), and calves (11%) by a specific percentage more than walking in a regular shoe. In fact, the only independent and reliable scientific study on the subject demonstrated that there is no evidence to support these claims. On September 28, 2011, the company reached a settlement with the US Federal Trade Commission to pay $25 million in refunds to consumers, as well as, stopping to make any health or fitness- related efficacy claims for their toning shoes. Nevertheless, these toning shoes remain on store shelves in Canada with these same health and fitness claims on the packaging and no refunds have been made available to Canadian consumers. Anyone who has purchased Reebok EasyTone and RunTone footwear should contact our law firm at info@clg.org or 1-888-909-7863. Alternatively, please complete the form at http://www.clg.org/Class-Action/List-of-Class-Actions/Reebok- EasyTone-Shoes-Class-Action For further information: Me Jeff Orenstein 514-CONSUMER (266-7863) ext. 220 E-mail: jorenstein@clg.org Web site: http://www.clg.org RESEARCH IN MOTION: May Face Lawsuits Over BlackBerry Outages ------------------------------------------------------------- Moira Herbst, writing for Reuters, reports that law firms in the United States and Canada are exploring possible consumer lawsuits against Research In Motion Ltd. for BlackBerry outages, which for three days crippled e-mail and messaging for tens of millions of users around the world. Consumer lawyers say they are looking at whether customers have common claims against the BlackBerry manufacturer and might be able to band together in a single lawsuit. While the outage did not rise to the level of seriousness comparable to a dangerous medication or tainted food, it inconvenienced and angered customers. Frustrated BlackBerry users, turning to blogs, message boards, Twitter and Facebook, complained about losing important e-mails and missing meetings. Law firms are considering breach-of-contract or consumer-fraud claims, attorneys said. A breach-of-contract claim could argue the company failed in its obligations to provide service and could include carriers for BlackBerry service as additional defendants, said attorneys exploring litigation against RIM. A consumer-fraud claim could focus on whether customers were misled about the reliability of RIM's networks. But consumers could face hurdles to winning big damages. It will likely be difficult to prove damages beyond loss of service and varying state laws make the chances of bringing a nationwide consumer-fraud class action remote. Still, some customers may push forward. "Here, you just have the loss of (BlackBerry) use, so tons of class-action firms are not running to the courthouse steps," said Jay Edelson, a partner with the law firm Edelson McGuire in Chicago, who represents plaintiffs. "But there are definitely consumers motivated to lend their names to the case to make sure these problems don't happen again in the future." Because consumers can hire lawyers on a contingency basis, they would not have to fund the litigation, an added incentive, he said. Winning a class action case for BlackBerry users, in turn, would raise the profile of a small or medium-sized law firm. A U.S. Supreme Court consumer class-action ruling in April, in a case known as Concepcion vs AT&T, could also limit any BlackBerry outage lawsuits. The decision made it more difficult for consumers to sue if a contract they signed with a company demands that disputes be settled through arbitration on an individual basis. "One of the major battles in any lawsuit against RIM will be whether the claims against RIM are subject to the arbitration clauses," said Jonathan Tycko, a partner with Tycko & Zavareei in Washington who brings consumer class actions. "If they are, then that could make it quite difficult to bring a class action." Still, lawyers are investigating whether plaintiffs could band together and what claims they could file. "We may end up pursuing consumer-protection statute class-action cases in one or more states," said Mark Baumkel, a partner with law firm Baumkel & Associates in Bingham Farms, Michigan. "Given the very short time of the disruptions in service, the damages for consumers in each state may not add up to huge amounts of money." RIM did not respond to messages seeking comment on potential lawsuits. Law firms in Canada, where RIM is headquartered, are also considering lawsuits, said Paul Battaglia, managing director of Toronto-based Trilogy Class Actions, a consulting firm that connects consumers with class-action attorneys. Mr. Battaglia said his firm is in discussions with other law firms about potential lead plaintiffs. The problems began with a failure in RIM's European data center and spread across the world before it began to recover on Oct. 13. BlackBerry devices have experienced similar, but more short-lived outages each year since 2007. The system failures came as RIM struggles to hold on to market share for BlackBerry smart phones, as more customers opt for Apple Inc's iPhone and Google Inc's Android. So far, RIM has not offered to compensate customers for the outages. The company said on Oct. 17 it would offer subscribers access to premium apps "as an expression of appreciation for their patience during the recent service disruptions." The apps will be available for four weeks and are worth more than $100 per customer, RIM said. The offer did not satisfy investors. RIM's stock sank 6% on Oct. 17 following the news. If RIM were to pay back all affected customers and service carriers for the days of service lost, the cost to the company could be between $15 million and $26 million, BMO Capital Markets analyst Tim Long said in a research note. If consumers go to court, legal experts say it would be tough to win damages beyond compensation for loss of service. "It would be very hard to prove actual damages from a failure of access to a smart phone," said David Logan, dean of Roger Williams University School of Law and an expert in mass tort litigation. "After all, for almost everybody there are alternative ways to communicate in a pinch." Mr. Edelson said consumer lawsuits are more likely to succeed in changing RIM's practices than recovering large economic damages. He said his firm received dozens of calls from BlackBerry users and he will decide whether to bring a lawsuit by the end of the week. "Based on the investigation we've done, it looks like this is something RIM could have prevented," said Mr. Edelson. "They have not come clean about why the outage occurred or what new steps they have in place to prevent similar interruptions in the future." SAFELITE SOLUTIONS: Plaintiffs' Bid to Expand Class Action Fails ---------------------------------------------------------------- glassBYTES.com reports that a federal court in Ohio has denied the motion of several Safelite Solutions customer service representatives who had motioned to expand a suit they filed last August to be amended to include the company's sales representatives. The plaintiffs in the class action suit, who claim they are owed overtime pay, had motioned to file an amended complaint expanding the case, but had filed this motion four months after the April 1 deadline for amendments, according to court documents. In its denial, the court notes that while the plaintiffs have claimed that moving the deadline to amend -- and allowing them to amend "is not undue when the delay results from securing 'supporting information . . . through discovery and investigation and research' . . . plaintiffs do not identify what information they obtained through discovery and only after April 1, 2011." "This omission is particularly significant in light of the fact that plaintiffs were on notice prior to April 1, 2011, that sales representatives might be members of the class," writes the court, adding that several sales representatives actually completed opt-in forms for the class action suit in early May 2011, even though they were not eligible to be part of the class. "Therefore, although plaintiffs were on notice of this information as early as may 2011, plaintiffs waited until four months after the deadline had passed before filing the motion to amend." In addition, the court held that if sales reps were added to the suit, a new notification would need be sent out to potential members of the class and the opt-in period would have to be re-opened. The CSR plaintiffs had further argued that they could file a separate action on behalf of the sales representatives that eventually would be consolidated with the current case, and so it would make sense to amend this case. "This court disagrees," writes the court. "Although some overlap between the two actions could exist, the court has discretion to deny a request to consolidate if the schedules of the two actions are incompatible." While the original suit focused on the time CSRs spend booting up their computers each day and the allegation that this time is not calculated into their pay, the plaintiffs had also sought to seek compensation for the time spent "locating a working computer in a vacant cubicle, securing a headset or other equipment essential to using that computer" with the recent motion. The court denied this request, along with the plaintiffs request to add claims of spoliation -- "the intentional destruction of evidence that is presumed unfavorable to the party responsible for the destruction." The CSRs had alleged that some documents imperative to their case had been removed from the Safelite Solutions computer system since the case was filed. However, the court ruled that the plaintiffs' argument is based on speculation. The only portion of the plaintiffs' motion to amend accepted by the court was the removal of one of the named plaintiffs, Patrick Heaps, who claimed "he is no longer able to serve in that capacity." SOTHEBY'S: Faces Class Action Over Artwork Resale Royalties ----------------------------------------------------------- Jori Finkel, writing for Los Angeles Times, reports that New York painter Chuck Close, L.A. artist Laddie John Dill and the estate of L.A. sculptor Robert Graham are plaintiffs in a pair of class- action lawsuits filed on Oct. 18 against the New York operations of Sotheby's and Christie's, alleging that the auction houses violated the California Resale Royalty Act. The 1977 California statute, a rare attempt in the U.S. to provide visual artists with a financial cut of appreciating artworks they made but no longer own, grants artists 5% of the proceeds from the resale of their artwork under certain conditions. One is that the seller lives in California or the sale occurs in California. The law applies only to one-of-a-kind examples of fine art -- defined as "an original painting, sculpture, or drawing, or an original work of art in glass." Editioned photographs and prints are not included. The rights provided by the law extend to the artist's heirs for up to 20 years after the artist's death. Eric M. George of Browne George Ross LLP in L.A. filed the complaints in federal court, charging the auction houses with "failure to comply" with the law by not withholding this royalty for the artists and by routinely going out of their way "to conceal the fact of a seller's California residency." Mr. George said the suits had their genesis in an $8.57-million jury verdict he won while representing collector Halsey Minor against Christie's last year. After that, he began hearing from others who had assorted gripes against auction houses. "I spoke to a good number of artists," Mr. George said, and he learned about frustrations over their inability to find out when an auction seller was from California and therefore owed the 5% royalty under state law. The law went into effect in 1977. "It's a wholesale systematic denial by Sotheby's and Christie's of artists' rights," Mr. George said. "How they've gotten away with it for this long is a mystery." He said that there does not appear to be a problem with two other auction houses, Phillips de Pury & Company and Bonhams & Butterfields. "It's my understanding they follow the law," George said. With art dealers, he said, it appears that compliance is "spotty at best." Messrs. Close and Dill and Graham's estate are plaintiffs named on both suits. The foundation of L.A. painter Sam Francis, who died in 1994, also appears as a plaintiff in the suit against Christie's. The law was inspired by European visual arts royalties like the French "droit de suite" as well as the entertainment-industry model of residuals. The California Arts Council, which is in charge of distributing royalties when auction houses or galleries cannot locate artists, maintains information about the law on its Web site, and a list of artists whom it is seeking for payment. The Wall Street Journal quoted a spokeswoman for Sotheby's as calling the claim meritless. A spokeswoman for Christie's told the paper that the auction house looks forward to debating the validity of the law itself in court. If successful, these suits could be more than a slap against Christie's and Sotheby's: They could affect how galleries with resale practices throughout California run their business -- or shift business elsewhere. SUPERSHUTTLE INT'L.: 8th Cir. Affirms Arbitration, Flips Dismissal ------------------------------------------------------------------ The U.S. Court of Appeals for the Eighth Circuit affirmed a district court's order granting a motion to compel arbitration, as well as enforcement of class action waivers, in the class action styled as Mack Green, et al. v. SuperShuttle International, Inc., et al., Case No. 10-3310 (8th Cir.) The Eighth Circuit also reversed and remanded the district court's order dismissing the class action without prejudice. The plaintiffs are current or former shuttle bus drivers at the Minneapolis-St. Paul International Airport. The defendants own a shared-ride shuttle service which operates at the Airport. The plaintiffs alleged that the defendants violated the Minnesota Fair Labor Standards Act by misclassifying its drivers as franchisees rather than employees. The Eighth Circuit held that by entering into unit franchise agreements with the defendants, the plaintiffs agreed to the incorporation of the rules of the American Arbitration Association into their relationship with the defendants. The Eighth Circuit added that the district court abused its discretion in dismissing the action. "In this case, it is not clear all of the contested issues between the parties will be resolved by arbitration. The arbitrator may very well determine the transportation worker exemption applies. If such happens, Green and the other drivers may be prejudiced by the dismissal of the district court action because the statute of limitations may run and bar them from re-filing complaints in state or federal court." The appellate panel is composed of Circuit Judges Roger Leland Wollman, Kermit Edward Bye, and Bobby E. Shepherd. A copy of the 8th Circuit's Sept. 6, 2011 decision is available at http://is.gd/bVz7AZfrom Leagle.com. TEXTRON INC: Dist. Ct. Rules on Motion to Dismiss ERISA Suit ------------------------------------------------------------ Judge Paul Barbadoro of the U.S. District Court for the District of Rhode Island granted the defendants' motion to dismiss in a class suit under the Employee Retirement Income Security Act of 1974 to the extent the plaintiffs base their breach of fiduciary duty claim on alleged misstatements by the defendants. In all other respects, the motion to dismiss is denied, the Court ruled. The case is In re Textron, Inc. ERISA Litigation, Case No. 09-cv- 00383-PJB (D. R.I.). Textron is a conglomerate that manufactures and sells helicopters, light transportation vehicles, and lawn care machinery. It also has a large commercial finance business. The Plaintiffs are participants in a retirement plan sponsored by Textron that included as one of its investment options the Textron Stock Fund. In a three-count consolidated complaint filed in February 2010, the Plaintiffs invoked the Employee Retirement Income Security Act of 1974 in asserting breach of fiduciary duty claims against Textron, the committee that oversaw administration of the Plan, and several individuals who were members of the committee during the class period. They claim that the defendants are liable because they made misleading statements about Textron's financial condition, failed to disclose material adverse information about the company, and allowed class members to make what the defendants knew or should have known were imprudent investments in the Fund. The Defendants seek dismissal contending that the complaint fails to state a claim for relief. They argue that plaintiffs cannot base a claim on the defendants' allegedly misleading statements because the defendants were not acting as ERISA fiduciaries when they made the statements. They contend that they cannot be held liable for failing to disclose information because they did not have a duty to disclose the omitted information. Finally, they assert that plaintiffs' imprudent investment claim is a nonstarter because the complaint does not sufficiently allege that the Fund was an imprudent investment. A copy of the District Court's Sept. 6, 2011 Memorandum and Order is available at http://is.gd/x8ejamfrom Leagle.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 * * *