/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/111206.mbx C L A S S A C T I O N R E P O R T E R Tuesday, December 6, 2011, Vol. 13, No. 241 Headlines ALASKA AIRLINES: Calif. Ct. Won't Hear Appeal on Demurrer Order AOL LLC: 9th Cir. Says Cy Pres Deal Improperly Approved CARRIER IQ: May Face Class Action for Violating Wiretap Law CLEARWIRE CORP: 7th Cir. Upholds Denial of Motion to Reconsider COUNTY OF SACRAMENTO, CA: Sued Over Public Document Copy Fees CVS PHARMACY: Sued Over False Claims on Homeopathic Flue Relief CYMA CORP: Settles Sexual Harassment & Discrimination Suit DIOCESE OF ANTIGONISH: C$8.5MM Paid in Sex Abuse Settlement DISCOVER FINANCIAL: Accused of Making Calls Without Consent INOFIN INC: Three Law Firms File Securities Class Action LCD PANEL MAKERS: 7th Cir. Lacks Jurisdiction on Antitrust Suit MICHAELS STORES: Judge Narrows Scope of Data Theft Class Action MICROSOFT CORP: Canada Supreme Court to Hear Price-Fixing Appeal NYGALA CORP: Recalls 10,000 Halloween Projection Flashlights SANA ENTERPRISES: Sued Over Practice of Charging Sales Tax SONY NETWORK: Sued in California for Changing PSN Terms of Use STATE OF MINNESOTA: Settles METO Program Class Action for $2.9MM VALENCIA HOLDING: Calif. App. Ct. Upholds Denial of Arbitration VALVE CORP: Faces Class Action Over Security Breach WESTERN-SOUTHERN LIFE: Burg Simpson Files Class Action ********* ALASKA AIRLINES: Calif. Ct. Won't Hear Appeal on Demurrer Order --------------------------------------------------------------- In the lawsuit, Kenneth Don Nelson v. Alaska Airlines, Inc., Case No. A130167, the Court of Appeals of California, First District, dismissed without prejudice the plaintiff's appeal challenging an order sustaining the defendant's demurrer to his first amended complaint. The putative class action dispute stems from the airline's right to charge certain passengers a "Mexican tourism tax." On appeal, the plaintiff claimed that the trial court erred in ruling his claims are preempted by federal law, discounting his construction of the subject contract, and denying his request to pursue discovery. The appeals court held that it does not have jurisdiction to consider the plaintiff's appeal in the absence of a final judgment. A copy of the appeals court's Nov. 30 decision is available at http://is.gd/zVdvALfrom Leagle.com. AOL LLC: 9th Cir. Says Cy Pres Deal Improperly Approved ------------------------------------------------------- The U.S. Court of Appeals for the Ninth Circuit reviewed a district court's approval of a proposed class action settlement, including a proposed cy pres settlement distribution, for abuse of discretion in the case, Nachshin v. AOL, LLC, Case No. 10-55129 (9th Cir.). The Ninth Circuit concluded that the district court applied the incorrect legal standard in approving the proposed cy pres distribution, and therefore, abused its discretion. The class action lawsuit was brought in August 2009 by Dawn Fairchild, Brian Geers, Laurence Gerard, and Robert Nachshin against America Online, LLC, on behalf of a putative class consisting of more than 66 million paid AOL subscribers. Plaintiffs alleged that AOL wrongfully inserted footers containing promotional messages into e-mails sent by AOL subscribers. The parties eventually reached a class settlement. A copy of the Ninth Circuit's Nov. 21, 2011 Order is available at http://is.gd/XzzaSTfrom Leagle.com. Counsel for the plaintiffs-appellees is Richard L. Kellner, Esq. -- rlk@kbklawyers.com -- at KABETECK BROWN & KELLNER LLP in Los Angeles, California. Counsel for the defendants-appellees is Mark D. Litvack, Esq. -- mark.litvack@pillsburylaw.com -- at PILLSBURY WINTHROP SHAW PITTMAN, LLP, in Los Angeles. Counsel for the objector-appellant is Theodore H. Frank of the Center for Class Action Fairness in Washington, D.C. CARRIER IQ: May Face Class Action for Violating Wiretap Law ----------------------------------------------------------- Andy Greenberg, writing for Forbes, reports that a piece of keystroke-sniffing software called Carrier IQ has been embedded so deeply in millions of Nokia, Android, and RIM devices that it's tough to spot and nearly impossible to remove, as 25-year old Connecticut systems administrator Trevor Eckhart revealed in a video on Nov. 30. That's not just creepy, says Paul Ohm, a former Justice Department prosecutor and law professor at the University of Colorado Law School. He thinks it's also likely grounds for a class action lawsuit based on a federal wiretapping law. "If CarrierIQ has gotten the handset manufactures to install secret software that records keystrokes intended for text messaging and the Internet and are sending some of that information back somewhere, this is very likely a federal wiretap." he says. "And that gives the people wiretapped the right to sue and provides for significant monetary damages." As Mr. Eckhart's analysis of the company's training videos and the debugging logs on his own HTC Evo handset have shown, Carrier IQ captures every keystroke on a device as well as location and other data, and potentially makes that data available to Carrier IQ's customers. The video he's created shows every keystroke being sent to the highly-obscured application on the phone before a call, text message, or Internet data packet is ever communicated beyond the phone. Mr. Eckhart has found the application on Samsung, HTC, Nokia and RIM devices, and Carrier IQ claims on its website that it has installed the program on more than 140 million handsets. Specifically, Mr. Ohm points to changes made to the Wiretap Act under the Electronic Communications Privacy Act of 1986 that forbid acquiring the contents of communications without the users' consent. "Because this happens with text messages as they're being sent, a quintessentially streaming form of communication, it seems like exactly the kind of thing the wiretap act is meant to prevent," he says. "When I was at the Justice Department, we definitely prosecuted people for installing software with these kinds of capabilities on personal computers." Carrier IQ didn't respond to my request for comment, but the firm has posted a response statement on its website, claiming that it collects only limited "operational information" on devices for its carrier customers: "While we look at many aspects of a device's performance, we are counting and summarizing performance, not recording keystrokes or providing tracking tools. The metrics and tools we derive are not designed to deliver such information, nor do we have any intention of developing such tools. The information gathered by Carrier IQ is done so for the exclusive use of that customer, and Carrier IQ does not sell personal subscriber information to 3rd parties. The information derived from devices is encrypted and secured within our customer's network or in our audited and customer-approved facilities." But even if the data were somehow aggregated and anonymized before being communicated to a remote server, Mr. Ohm argues, Carrier IQ and possibly even Sprint and other carriers shown to have used the company's services should still expect a costly class action lawsuit. "Even if they were collecting only anonymized usage metrics, it doesn't mean they didn't break the law," says Mr. Ohm. "Then it becomes a hard, open question. And hard open questions take hundreds of thousands of dollars to make go away." "In the next days or weeks, someone will sue, and then this company is tangled up in very expensive litigation," he adds. "It's almost certain." Over the last month, Carrier IQ has attempted to quash Mr. Eckhart's research with a cease-and-desist letter, apologizing only after the Electronic Frontier Foundation came to his defense. Mr. Eckhart's legal representation at the EFF declined to comment on the legality of Carrier IQ's business practices. If the case went to court, Carrier IQ's first line of defense might be that users have agreed to some form of tracking in their contract with one of Carrier IQ's cellular carrier customers. But when Mr. Eckhart pointed out that in his tests, he turned on the phone's airplane mode, shutting down its cellular connection and using only Wifi. Even then, the app seemed to record all his keystrokes and communications as they happened. "[Sprint] defines their service as their network," he says, referring to his own tests on his Sprint-connected HTC Evo. "I don't understand how my phone on my own wireless network is their service, and how they have the right to look at that." Mr. Ohm argues that even when the phone is connected to the cellular network, only carriers are protected by contracts they make with users, not an intermediate software company of which most users are unaware. And carriers themselves typically don't spell out in their contracts the kind of surveillance that Eckhart has shown Carrier IQ to be performing. "This seems like really intrusive, comprehensive surveillance," says Mr. Ohm. "If so, is there really a provision in the contract that's so all- encompassing? They may say they'll periodically monitor for quality assurance, or something to that effect. But that seems like a far cry from saving every keystroke." CLEARWIRE CORP: 7th Cir. Upholds Denial of Motion to Reconsider --------------------------------------------------------------- The U.S. Court of Appeals for the Seventh Circuit affirmed a trial court judgment and decision denying reconsideration of a consumer class action complaint against Clearwire Corporation. Jerome Damasco filed a putative class action lawsuit against Clearwire Corporation in an Illinois state court, alleging that Clearwire violated the Telephone Consumer Protection Act, 47 U.S.C. Sec. 227, by sending unsolicited text messages to cellphone users. Before Mr. Damasco moved for class certification, Clearwire offered him his full request for relief. Clearwire then removed the case to federal court and moved to dismiss, arguing that the offer mooted Mr. Damasco's claim. The district court agreed, dismissed the complaint, and later denied his motion to reconsider. Mr. Damasco appealed both rulings. A copy of the Seventh Circuit's Nov. 18, 2011 order is available at http://is.gd/1EwUFwfrom Leagle.com. COUNTY OF SACRAMENTO, CA: Sued Over Public Document Copy Fees ------------------------------------------------------------- Courthouse News Service reports that strangled by the parlous state of California's budget, counties are jacking up fees for copies of public records, but Sacramento County has gone way too far, charging $13 for page 1 and $3 for each additional page of electronic copies, which violates state law, a research group says in a class action. California Public Records Research sued Sacramento County and its Clerk-Recorder Craig Kramer, in Superior Court. The L.A.-based plaintiff says it "is engaged in the business, inter alia, of locating and retrieving public records," and that the fees charged in Sacramento violate the state's Public Records Act, which "mandates that fees for copies of public records shall be limited to the direct costs of duplication." But Sacramento County charges $13 for the first page of a digitized document and $3 for each subsequent page, and $3 for the first page of a paper copy, and $1 for each subsequent page, and that's too much, according to the complaint. Before 1993, the Legislature allowed charges of up to $1 for the first page of a public document and 50 cents for each subsequent page, according to the complaint. In 1993, it changed the law (Government Code Sec. 27366) to allow counties to set the fees. However, "In granting this authority to the counties, and to protect the public from the imposition of unlawful fees, the Legislature specifically mandated that, in exercising the discretion given to them to set copy fees, the fees set shall be limited to recoupment of the direct and indirect costs of producing copies," the complaint states. The plaintiff says Sacramento County's "direct and indirect costs for producing copies of recorded documents did not and do not exceed 10 cents per page." It seeks declaratory relief, writ of mandamus, an accounting, an injunction, refunds, costs, and "an incentive award." A copy of the Complaint in California Public Records Research, Inc. v. County of Sacramento, et al., Case No. 34-2011-80001008 (Calif. Super. Ct., Sacramento Cty.), is available at: http://www.courthousenews.com/2011/12/01/CopyFees.pdf The Plaintiff is represented by: Donald W. Ricketts, Esq. 28855 Kenroy Avenue Santa Clarita, CA 91387 Telephone: (661) 250-3091 CVS PHARMACY: Sued Over False Claims on Homeopathic Flue Relief --------------------------------------------------------------- Courthouse News Service reports that a federal class action claims CVS Pharmacy's homeopathic All Natural Flu Relief "is nothing more than a sugar pill that defendant falsely advertises". A copy of the Complaint in Martinez v. CVS Pharmacy, Inc., Case No. 11-cv-09922 (C.D. Calif.), is available at: http://www.courthousenews.com/2011/12/01/SnakeOil.pdf The Plaintiff is represented by: Clifford H. Pearson, Esq. Daniel L. Warshaw, Esq. Bobby Pouya, Esq. PEARSON, SIMON, WARSHAW & PENNY, LLP 15165 Ventura Boulevard, Suite 400 Sherman Oaks, CA 91403 Telephone: (818) 788-8300 E-mail: cpearson@pswplaw.com dwarshaw@pswplaw.com - and - Scott J. Ferrell, Esq. James B. Hardin, Esq. Steven R. Telles, Esq. Ryan M. Ferrell, Esq. NEWPORT TRIAL GROUP 895 Dove Street, Suite 425 Newport Beach, CA 92660 E-mail: sferrell@trialnewport.com jhardin@trialnewport.com steles@trialnewport.com rferrell@trialnewport.com CYMA CORP: Settles Sexual Harassment & Discrimination Suit ---------------------------------------------------------- The owners of Cyma Corporation, the nation's largest orchid supplier, recently settled a class action sexual harassment, discrimination and retaliation lawsuit filed by the federal Equal Employment Opportunity Commission. Cyma purchased the assets of Taean Orchids USA, including its California orchid growing operations in early 2008. The company, at the time, was not aware Taean was under investigation by the EEOC. The original suit, which was filed in 2010 by the EEOC, initially demanded Cyma pay damages of over $10 million, and agree to EEOC oversight under a 5-year consent decree. Under the settlement agreement, the EEOC was only able to procure a "costs of defense" class action settlement of $200,000 by Cyma and $40,000 by Taean's owners (a fraction of the EEOC's initial demand). Further, due to Cyma's training regimen and HR compliance, as acknowledged by Anna Park, regional attorney for EEOC LA regional district office, the EEOC agreed to a greatly reduced 21/2-year consent decree (the EEOC usually requires a minimum of 3-5 year terms). Cyma Orchids Corporation wishes to correct inaccuracies in recent news reports relating to the EEOC v. Cyma & Taean litigation. It has been reported that the owners of Cyma, as well as its supervisors and managers sexually harassed female Latina workers, and that this practice was "widespread" and conducted by both Korean and Hispanic "male supervisory staff." Further, the report contended that a male "lead greenhouse worker" was fired for trying to defend "one of the victims." According to Neil Klein of McKasson & Klein LLP, legal counsel for Cyma in the lawsuit, "Cyma strongly denies these unproven allegations, and in particular that its owner Ken Chung, who purchased the business from the owners of Taean Orchids USA, Inc., co-defendant in the lawsuit was involved. Since its inception, Cyma and its management have been and are committed to providing a work environment free from unlawful harassment, discrimination and retaliation." When Cyma purchased the assets of Taean in early 2008, most of, if not all of Taean employees were retained as employees. The company, upon learning of the allegations in late 2008 -- which occurred on Taean's watch -- Cyma conducted its own investigation, and instituted ongoing sexual harassment and discrimination education and training programs for all employees and supervisors. Important to Cyma and Taean, there was no admission of any wrongdoing, as reflected in the settlement agreement reached with the EEOC and CRLA. Cyma, like many other employers, was hit hard by the financial crisis and largest recession since the Great Depression in the 1930's and was forced to reduce the size of its workforce in 2008- 2009. Still, it retained most employees inherited from Taean, including certain class members who continue to work at the company. Kay McLaughlin, the coordinator appointed by the EEOC to oversee compliance with the consent decree, stated, "Cyma employees have and continue to enjoy the dignity of working in an environment free from harassment or discrimination." DIOCESE OF ANTIGONISH: C$8.5MM Paid in Sex Abuse Settlement ----------------------------------------------------------- CBC News reports that the Diocese of Antigonish has now paid out about C$8.5 million in a historic class action settlement. Two years ago, the diocese agreed to compensate people who had been sexually abused by priests. The victims will receive close to C$13 million. The settlement was drawn up in 2009 as a result of a class action lawsuit. It was expected to cover about 70 claimants around the diocese, which stretches from Nova Scotia's Pictou County east to the tip of Cape Breton. By May, however, that number had climbed to about 140. The total settlement amount remains the same at C$13 million, so each claimant could expect to receive less money. The diocese says it has been raising the money by gathering up parish savings and selling off church properties. Father Paul Abbass says the diocese had to arrange a short-term loan to cover some of the most recent payment. "We did do some (loans), and it was based on properties that we know are very close to being sold," said Mr. Abbass. "So what we did, because those deals haven't completed, but we know they're within completion sight, we just arranged for us to have that money in advance, and then, pay it back when the closing comes for those properties." Mr. Abbass says the diocese still has hundreds of properties on the market. He's confident it will be able to meet its final payment, of about C$4.5 million by next November. DISCOVER FINANCIAL: Accused of Making Calls Without Consent ----------------------------------------------------------- Walter Bradley, on behalf of himself and all others similarly situated v. Discover Financial Services, Case No. 3:11-cv-05746 (N.D. Calif., November 30, 2011) accuses Discover of negligently, knowingly, and willfully contacting the Plaintiff on his cellular telephone without his express prior consent, in violation of the Telephone Consumer Protection Act. The Plaintiff alleges that Discover called him on his cellular telephone lines dozens of times at multiple times per day. Mr. Bradley is a resident of California. He informs the Court that pursuant to the terms of his contract as an account holder of a cellular telephone number, he is charged for each call. Discover is a diversified financial services company that makes loans to consumers and business through its various subsidiaries. Discover services millions of consumer debts including credit card revolving credit under several different brands and service marks. The Plaintiff is represented by: Mark Daniel Ankcorn, Esq. ANKCORN LAW FIRM PC 9845 Erma Road, Suite 300 San Diego, CA 92131 Telephone: (619) 870-0600 Facsimile: (619) 684-3541 E-mail: mark@markankcorn.com INOFIN INC: Three Law Firms File Securities Class Action -------------------------------------------------------- Levin Papantonio of Florida, Fishman Haygood of Louisiana and Schneider Wallace of California and Arizona on Dec. 1 disclosed that they have filed a class action lawsuit on behalf of investors who suffered losses from the recent $110 million Inofin fraud alleged by the SEC. The firms previously launched an investigation of subprime auto loan lender Inofin, Inc., of Rockland, Massachusetts, three of its principal officers, and two sales agents. Inofin investors who suffered losses due to the alleged fraud may be eligible for financial compensation. The Class Action Complaint is against Inofin and its principal officers, President Michael Cuomo, Chief Executive Officer Kevin Mann, and Chief Operating Officer Melissa George. According to the Complaint, this group violated the Massachusetts Uniform Securities Act (MUSA) by conducting business in Massachusetts as a broker-dealer or agent without being registered, and selling unregistered securities. "When companies and the individuals who run them skirt our national securities laws by selling unregistered securities they must make the investors whole," says attorney Peter Mougey, head of the Securities Department at Levin, Papantonio. "The investors are victims," says Mr. Mougey, and "they were sold a load of junk dressed up as a legitimate investment. We have joined together three top law firms in the nation to help victims of the Inofin fraud, who deserve to be compensated for their losses." Presented to the public as a motor vehicle sales finance company specializing in the purchase of subprime auto loans, Inofin has never been registered with the SEC or the Massachusetts Securities Division of the Offices of the Secretary of the Commonwealth. This, the complaint alleges, did not stop the defendants from collecting upwards of $110 million through the sale of unregistered securities. The victims span twenty-five states and the District of Columbia. "Individuals who pedal products like these need to be held accountable for what they sell," says Joseph Peiffer, a securities arbitration and commercial litigation attorney with Fishman Haygood. To learn more about the securities firms' investigations and ongoing claims against Inofin, call (888) 435-7001 or visit http://www.stockbrokerattorney.com/Inofin-fraud-lawsuit LCD PANEL MAKERS: 7th Cir. Lacks Jurisdiction on Antitrust Suit --------------------------------------------------------------- The U.S. Court of Appeals for the Seventh Circuit denied a petition for leave to appeal filed by LCD panel manufacturers in an antitrust lawsuit, holding that a district court correctly determined that the lawsuit is not a class action or mass action under the Class Action Fairness Act of 2005. The Appellate Court said it lacks jurisdiction over an appeal from the district court's remand order. The lawsuit was filed by the Illinois Attorney General in the Circuit Court of Cook County against eight LCD panel manufacturers for violations of the Illinois Antitrust Act. The complaint alleges that the defendants unlawfully inflated prices on LCD products sold to the state, its agencies, and residents and requests injunctive relief, civil penalties, and treble statutory damages for the state as a purchaser and, as parens patriae, for harmed residents. The defendants removed the case to federal court under the CAFA, 28 U.S.C. Sec. 1332(d), 1453. The Attorney General moved to remand and argued that the suit did not meet CAFA requirements and that, therefore, the district court did not have jurisdiction. The district court agreed and granted the motion to remand. The case is captioned LG Display Co., Ltd., et al. v. Lisa Madigan, Attorney General of the State of Illinois, Case No. 11-8017 (7th Cir.). A copy of the Seventh Circuit's Nov. 18, 2011 Order is available at http://is.gd/03dWdUfrom Leagle.com. MICHAELS STORES: Judge Narrows Scope of Data Theft Class Action --------------------------------------------------------------- The American Lawyer reports that in a ruling that may help mark the boundaries of liability for companies hit by debit card "skimming" scams, a federal judge has narrowed the scope of a putative class action against retail crafts giant Michaels Stores over the theft of data from 90 card readers at 80 store locations. MICROSOFT CORP: Canada Supreme Court to Hear Price-Fixing Appeal ---------------------------------------------------------------- Jeff Gray, writing for The Globe and Mail, reports that the Supreme Court of Canada has agreed to hear appeals in two B.C. class-action cases launched against corporate giants on behalf of consumers who allegedly overpaid for computers and soft drinks, in an effort to settle contradictory judgments from lower courts on a key legal issue. The court will weigh in on the question of whether "indirect purchasers," or consumers who bought computers or soft drinks from retailers, not from manufacturers directly, can sue over price- fixing allegations. One of the cases, launched on behalf of individual B.C. consumers and a company called Pro-Sys Consultants Ltd., accuses Microsoft Corp. of wrongly driving up prices for the software that comes preinstalled on computers. The plaintiffs' lawyers say the case could be worth hundreds of millions of dollars. The other case, launched on behalf of individual B.C. purchasers as well as by Sun-Rype Products Ltd., is a fight with several agribusiness giants, including Archer Daniels Midland Co. over allegations they fixed the price for the high-fructose corn syrup used to sweeten soft drinks and foods. Earlier this year, the B.C. Court of Appeal reversed lower-court rulings and declined to certify the lawsuits as class actions, ruling that "indirect purchasers" could not sue manufacturers with whom they had not done business directly. But courts across Canada have been divided on the issue. The most recent contradiction came from the Quebec Court of Appeal just weeks ago. In a similar class-action case against a computer-chip manufacturer, it ruled indirect purchasers could sue. On Dec. 1, 2011, the Supreme Court said it will hear appeals in the Microsoft and ADM cases, which are being keenly watched by competition lawyers. Other potential multimillion-dollar lawsuits against companies alleging price-fixing conspiracies are on hold or in the wings and awaiting a result. Lawyer J.J. Camp, whose Vancouver firm Camp Fiorante Matthews represents the plaintiffs in both cases, said the issues at stake are big ones for consumers, who would be allowed to join class actions over price-fixing if the appeal succeeds. "If you bought a computer, [in the Microsoft lawsuit], we allege that you paid an embedded charge of about C$20 more than you should have for the programs and applications that came with your computer," Mr. Camp said. "Microsoft drove everybody out of business and then hiked up their prices." He said he was not surprised at the decision, given the Quebec Court of Appeal decision that contradicted the rulings against his clients in B.C.: "That obviously puts the cat amongst the pigeons with differing courts of appeal across the country going in different directions." Microsoft and its lawyers declined to comment, as did ADM. Microsoft has settled similar lawsuits across the United States over price-fixing allegations for a total of C$2.5-billion (U.S.), including C$1-billion in California alone, and the company has faced investigations and fines from antitrust watchdogs in the U.S. and Europe. The case against ADM and the other agribusiness defendants is related to the massive bust by U.S. investigators of a price- fixing scheme for other food additives in the 1990s, dramatized in the 2009 Hollywood film The Informant, starring Matt Damon. ADM and the others did not face prosecution from regulators over corn syrup, but the company paid C$400-million (U.S.) to settle a U.S. price-fixing class-action over allegations related to corn syrup price-fixing in 2004. NYGALA CORP: Recalls 10,000 Halloween Projection Flashlights ------------------------------------------------------------ The U.S. Consumer Product Safety Commission, in cooperation with Nygala Corp., of Teterboro, New Jersey, announced a voluntary recall of about 10,000 Halloween Projection Flashlights. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The flashlights can overheat, blister and melt, posing fire and burn hazards to consumers. The Company has received one reported incident involving a flashlight that overheated, blistered and melted. The black and orange plastic flashlight is 6 1/2 inches long and has pumpkins, bats, witches, haunted houses and cats on the handle. The flashlights come with six different plastic lenses that attach to the flashlight to project various images, including a pumpkin, bat, witch, haunted house and cat. The flashlights use two AA batteries. "Flomo," "HW189" and UPC 677916518266 are printed on the packaging. Picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12051.html The recalled products were manufactured in China and sold at discount stores in California, Connecticut, Florida, Maryland, New Jersey, New York, Pennsylvania, Texas and Utah from August 2010 through October 2011 for about $1. Consumers should immediately stop using the recalled flashlights, remove and properly discard the batteries and return the flashlights to the store where purchased for a full refund. For additional information, contact Nygala Corp. at (800) 445-5936 between 9:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday or visit the firm's Web site http://www.flomousa.com/ SANA ENTERPRISES: Sued Over Practice of Charging Sales Tax ---------------------------------------------------------- Harry Kramer, individually and on behalf of all others similarly situated v. Sana Enterprises, Inc., d/b/a Al's Beef and Nancy's Pizzeria, an Illinois corporation and Chicago Franchise Systems, Inc., an Illinois corporation, Case No. 2011-CH-40818 (Ill. Cir. Ct., Cook Cty., November 30, 2011) arises from the Defendants' alleged practice of charging its consumers a sales tax to which it is not entitled. As a result of the Defendants' conduct, Mr. Kramer brings claims for an accounting, declaratory judgment, conversion, unjust enrichment, breach of covenant of good faith and fair dealing, and violation of the Illinois Consumer Fraud and Deceptive Business Practices Act. Mr. Kramer is a resident of Cook County, Illinois. Sana Enterprises is a food chain that sells prepared foods, specifically 'fast food.' Al's Beef is an Illinois corporation with approximately 36 locations throughout Illinois and Cook County. Chicago Franchise is an Illinois corporation and is the operator of Al's Beef. The Plaintiff is represented by: Larry D. Drury, Esq. LARRY D. DRURY, LTD. 100 N. LaSalle St., Ste. 1010 Chicago, IL 60602 Telephone: (312) 346-7950 E-mail: ldrurylaw@aol.com - and - Robert A. Langendorf, Esq. ROBERT A. LANGENDORF, P.C. 134 N. LaSalle St., Ste. 1515 Chicago, IL 60602 Telephone: (312) 782-5933 E-mail: rlangendorf@comcast.net SONY NETWORK: Sued in California for Changing PSN Terms of Use -------------------------------------------------------------- Dan McCue at Courthouse News Service reports that a federal class action claims Sony unfairly changed the terms of use for its PlayStation 3 games, forcing customers to waive their right to sue to keep playing. Lead plaintiff Stephen Fineman says Sony imposed its new terms of use on Sept. 15, forcing even longtime owners of the game system to agree to the new terms -- including mandatory arbitration -- if they wanted to keep using Sony's online gaming and entertainment network. Clicking to agree to terms of service was part of a straightforward product registration process. But on April 27 this year the U.S. Supreme Court issued a ruling in Concepcion v. AT&T Corp. that broadened the validity of arbitration clauses and class action waivers. "Thereafter," Mr. Fineman says, "Defendants conspired to change the pre-September 2011 PSN Terms of Use such that in order to continue to access the PSN, all existing PSN users would be compelled to waive their existing rights to sue defendants in a class action in exchange for no consideration." Mr. Fineman says the new terms of use are 21 pages long, and that while there is a notice of binding individual arbitration and class action waiver, "rather than placing the actual arbitration clause and class action waiver near the notice, in order to discourage the plaintiff and class members from carefully reviewing them, defendants placed the provisions near the end of the terms of use, on the equivalent of page 17. . . . "To further discourage users from carefully reviewing the September 2011 PSN terms of use, including the arbitration clause and class action waiver, defendants prevented users from easily accessing the terms on the Internet. The September 2011 terms of use could only be located if a user expended significant time navigating through multiple Sony Web sites. "In contrast . . . all versions of the pre-September 2011 PSN terns of use contained a web address to allow consumers to review and print the terms of use." Those weren't the only hurdles Sony erected, Mr. Fineman says. To opt out, a user must first agree to the terms of use, then within 30 days send written notice to Sony's legal department, "which must include a 'clear statement that you do not wish to resolve disputes with any Sony entity through arbitration.'" This notice cannot be given online through Sony's Web sites, by e-mail or by telephone, Mr. Fineman claims. He adds: "In order to discourage users from invoking the arbitration clause, defendants included language that made it difficult for users to recover their attorney's fees. Even if a user prevails in arbitration against any defendant or other Sony entity, if the claim is less than $75,000, a user can only recover his or her attorney's fees if he or she has first provided notice to, and negotiated in good faith with, the defendant before pursuing arbitration." Mr. Fineman seeks restitution, declaratory judgment, an injunction, costs and damages for breach of faith and fair dealing, and unfair competition. A copy of the Complaint in Fineman v. Sony Network Entertainment International LLC, et al., Case No. 11-cv-05680 (N.D. Calif.), is available at: http://www.courthousenews.com/2011/12/01/Sony.pdf The Plaintiff is represented by: Jeffrey K. Berns, Esq. Alan J. Cooper, Esq. BERNS WEISS LLP 6303 Owensmouth Ave., 10th Floor Woodland Hills, CA 91367-2263 Telephone: (818) 961-2000 E-mail: jberns@bernsweiss.com acooper@bernsweiss.com - and - Lee A. Weiss, Esq. BERNS WEISS LLP 626 RXR Plaza Uniondale, NY 11556 Telephone: (516) 222-2900 E-mail: lweiss@bernsweiss.com STATE OF MINNESOTA: Settles METO Program Class Action for $2.9MM ---------------------------------------------------------------- David Hanners, writing for Pioneer Press, reports that a federal judge on Dec. 1 approved a landmark $2.9 million settlement in a class-action lawsuit that ends the use of certain restraint devices and techniques in state facilities and closes a scandalous treatment program for people with developmental disabilities. Investigators found that scores of residents in the Minnesota Extended Treatment Options (METO) program at Cambridge were routinely handcuffed and placed in leg irons or locked alone in rooms, sometimes for behavior as innocent as bumping into someone. U.S. District Judge Donovan Frank said the settlement would help people with disabilities "enjoy the promise of the Constitution, the promise of America." During the 2-1/2-hour hearing in federal court in St. Paul, Judge Frank heard from several people who voiced support for the agreement, which settles a lawsuit filed in July 2009. A couple of the speakers were directly affected by the state's practices. "I came because I believe the future shouldn't follow the past," Heidi Myhre of West St. Paul told Judge Frank. She has cerebral palsy, hearing and vision impairments, dyslexia and other conditions. She recounted her months at Anoka State Hospital in 1988, where she said she was forcibly stripped to her underwear and locked in a room because she argued with someone over a television. "I thought the state hospital was supposed to help me, not abuse me," she said. Kurt Rutzen of Minneapolis also told the judge he favored the settlement and said that developmentally disabled people like him "need everything that everyone else deserves" but that too often, society "shoves it under the rug, out of mind, out of sight." Even the lawyer representing the Minnesota Department of Human Services, which had denied allegations of mistreatment in court filings, heralded the accord as a milestone. "This is an important settlement. It will make a huge difference to a lot of people," Minnesota Assistant Attorney General Steven Albert told the judge. Lawyers for both sides worked for months to settle the case, and part of the settlement included closing METO last June. Residents were transferred to other facilities. After their lawyers are paid, the plaintiffs will split $1.9 million. The three named plaintiffs will get $75,000 each, and the rest will get money based on how many documented incidents of abuse they suffered, at $200 per incident. Legislators established METO in 1995, and it was licensed to treat up to 48 people at the state hospital in Cambridge, 43 miles north of St. Paul. The lead plaintiffs in the class-action suit are parents of three men who had been in the METO program. They claimed that "as a means of behavior modification, coercion, discipline, convenience and retaliation, METO staff restrained plaintiffs using law enforcement-type metal handcuffs and leg hobbles for conduct as benign as spitting, laughing or hand-washing." In their legal complaint, they said they were suing over the "cruel and improper use of aversive and deprivation procedures." Many procedures had been detailed in a September 2008 report by the office of Roberta Opheim, state ombudsman for mental health and developmental disabilities. Ms. Opheim's office began investigating the program in 2007 after getting two complaints that "we thought were a minor reflection of the system," she told Judge Frank. Those complaints turned into an 18-month investigation that disclosed that six of every 10 residents in the program had been restrained or locked away alone. "One of the most egregious of the cases revealed a client who had been restrained 299 times in 2006 and 230 times in 2007," the ombudsman's report said. "One example of reason to place a resident in restraints included 'touching the pizza box.' " At one time, use of restraints had been considered a last resort when dealing with residents, but the ombudsman found that over time, staffers began to rely on arm and leg restraints and seldom tried other methods. Ms. Opheim's investigators also found that the state agencies that should've monitored METO and caught the abuses "failed to protect the clients . . . or turned a blind eye to the problem." When the Minnesota Office of Health Facility Complaints finally got around to looking into the matter, its report of problems and citations ran 99 pages. Minneapolis attorney Shamus O'Meara, who represented the plaintiffs, said the settlement "will benefit hundreds of thousands of residents of the state" because it closes METO and bars the use of certain restraint devices and techniques at the state's other facilities. Some restraint techniques will still be allowed, but their use will be limited, monitored and reviewed. Staff will be trained in alternatives to restraint, visitation policies will be changed (parents complained they were denied visits with their children), and there will be other changes. VALENCIA HOLDING: Calif. App. Ct. Upholds Denial of Arbitration --------------------------------------------------------------- In the lawsuit Gil Sanchez v. Valencia Holding Company, LLC, Case No. B228027 (Calif. App. Ct.), Judge P.J. Mallano affirmed a trial court's denial of a petition to compel arbitration. The appeals court concluded that the arbitration provision is unconscionable: It is adhesive and contains harsh one-sided terms that favor the car dealer to the detriment of the buyer. The class action lawsuit was filed by Gil Sanchez, a car buyer, against a car dealer, alleging violations of the Consumers Legal Remedies Act (Civ. Code, Sec. 1750-1784), the Automobile Sales Finance Act (Civ. Code, Sec. 2981-2984.6), the unfair competition law (Bus. & Prof. Code, Sec. 17200-17210), the Song-Beverly Consumer Warranty Act (Civ. Code, Sec. 1790-1795.8), and the California Tire Recycling Act (Pub. Resources Code, Sec. 42860- 42895). A copy of the Appeals Court's Nov. 23, 2011 Order is available at http://is.gd/XzzaSTfrom Leagle.com. Counsel for the Defendant/Appellant is: Christopher S. Maile, Esq. Soojin Kang, Esq. THARPE & HOWELL Los Angeles, California E-mail: cmaile@tharpe-howell.com skang@tharpe-howell.com - and - Robert A. Olson, Esq. GREINES, MARTIN, STEIN & RICHLAND 5900 Wilshire Boulevard, 12th Floor Los Angeles, California 90036 Tel: 310-859-7811 E-mail: ROlson@gmsr.com Counsel for the Plaintiff/Respondent is: Hallen D. Rosner, Esq. Angela J. Smith, Esq. Christopher P. Barry, Esq. ROSNER, BARRY & BABBITT, LLP 10085 Carroll Canyon Road, Suite 100 San Diego, California 92131 Tel No. (858) 348-1005 Fax No. (858) 348-1150 E-mail: hal@rbblawgroup.com angela@rbblawgroup.com VALVE CORP: Faces Class Action Over Security Breach --------------------------------------------------- Courthouse News Service reports that a federal class action claims Valve Corp. failed to protect personal information of the 35 million people who signed up for its online gaming program called Steam. A copy of the Complaint in Grigsby v. Valve Corporation, Case No. 11-cv-09905 (C.D. Calif.), is available at: http://www.courthousenews.com/2011/12/01/OnlineGames.pdf The Plaintiff is represented by: Miriam L. Schimmel, Esq. Cory G. Lee, Esq. Joshua Carlon, Esq. INITIATIVE LEGAL GROUP APC 1800 Century Park East, 2nd Floor Los Angeles, CA 90067 Telephone: (310) 556-5637 E-mail: mschimmel@initiativelegal.com corylee@initiativelegal.com jcarlon@initiativelegal.com WESTERN-SOUTHERN LIFE: Burg Simpson Files Class Action ------------------------------------------------------ Burg Simpson Eldredge Hersh & Jardine, P.C. has filed a nationwide class action lawsuit against Western-Southern Life Assurance Company and The Western and Southern Life Insurance Company relating to the sale of Western and Southern's Single Premium Immediate Annuity (SPIA). The nationwide class action complaint, case no. 1:11-cv-00836, filed in federal court in the Southern District of Ohio, alleges that Western and Southern breached its SPIA contracts by failing to pay annuity benefits to the annuitant for his/her lifetime. The SPIA contract requires Western and Southern to pay the annuitant's designated beneficiaries the annuity payments to the minimum guarantee date, but if the annuitant lives beyond the minimum guarantee date, the contract requires payment for the lifetime of the annuitant. The class action complaint also alleges that Western and Southern negligently or fraudulently misrepresented to plaintiff and potential class members that, even if they lived beyond the minimum guarantee date, they were only entitled to benefits up to the guarantee date and not for the remainder of their life. Plaintiff's complaint seeks declaratory relief and compensatory damages on behalf of Plaintiff and all Class members. Janet Abaray, managing partner of the Cincinnati Office of Burg Simpson, said, "Western and Southern sold a SPIA contract to our client which had a minimum guarantee date of 20 years and required that if he lived beyond the 20 years, he would continue to receive his monthly annuity benefits for the remainder of his life. However, when the 20 years was up, Western and Southern stopped the annuity payments and told him he was not entitled to annuity benefits for the rest of his life. Western and Southern sells annuity contracts nationwide, so we believe our client may not be the only victim of these unlawful practices." With offices in Cincinnati, Denver, Cody and Phoenix, Burg Simpson is a law firm practicing in the areas of personal injury lawsuits, class action, medical malpractice lawsuits, dangerous drug litigation, unsafe products, insurance bad faith, employment law, commercial and securities litigation. ********* 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. 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