/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/111212.mbx C L A S S A C T I O N R E P O R T E R Monday, December 12, 2011, Vol. 13, No. 245 Headlines ALEXIA FOODS: Accused of Deceiving Customers in California ARTHROCARE CORP: Enters Agreement to Settle Securities Suit BANK OF AMERICA: Accused in Calif. Suit of Cheating Homebuyers BERNARD L. MADOFF: Investor Suits Against JPM, BNY Dismissed BP EXPLORATION: Faces Class Action in Louisiana Over Oil Spill CASSELS BROCK: Judge Dismisses Class Action CLUB CAR: Recalls 600 Golf Cars Due to Fuel Leak and Fire Hazard DIAMOND FOODS: Faces Suits Over Crop Payments to Walnut Growers DRUG STORES: Appeal Ruling From W.Va. Law Firm's Class Action ELECTRONIC ARTS: Sued Over False Advertising on Video Game HARLEYSVILLE MUTUAL: Sued in Penn. Over Nationwide Mutual Merger HILLENBRAND INC: Awaits 5th Circuit Ruling on FCA Suit Appeal INTERSTATE BATTERY: Settles Class Action Over Battery Warranty INTRALINKS HOLDINGS: Holzer Holzer & Fistel Files Class Action LEHMAN BROTHERS: Underwriters Reach Class Action Settlement PERFORMANCE SPORTS: Sued Over False Claims on Golf Shirt READER'S DIGEST: Sued in N.Y. Over Subscription Term Changes RESEARCH IN MOTION: Sued Over Deceptive Bait-and-Switch Tactics SACRAMENTO RESTAURANTS: Settle Hooters' Class Action SIRIUSXM: Judge Tosses Misleading Advertising Class Action SKYWORKS SOLUTIONS: Continues to Defend AATI Merger-Related Suit SOLMAC CONSTRUCTIONS: Creditors Mull Class Action Over Collapse SOUTHERN CALIFORNIA: Sued Over Faulty Electric Meters STATE OF FLORIDA: Judge Certifies Welfare Drug Test Class Action THOR INDUSTRIES: Still Defends Formaldehyde Exposure Class Suits TRAVELERS INSURANCE: Faces Class Action Over PPO Discount UNIFIED LIFE: Settles Medicaid Dental Insurance Class Action * Dispute Over Armenian Genocide Class Action Resolved * Sup. Ct. of Canada Set to Decide on Indirect Purchaser Issue ********* ALEXIA FOODS: Accused of Deceiving Customers in California ---------------------------------------------------------- Leandro Vicuna and Pere Kyle, individually, and on behalf of other members of the general public similarly situated v. Alexia Foods, Inc., a Delaware Corporation, Case No. 4:11-cv-06119 (N.D. Calif., December 6, 2011) is a consumer class action regarding Alexia's alleged unfair, unlawful, deceptive and misleading practices conducted in violation of California state law and common law. The action involves "Saute Reds," "Mashed Potatoes Yukon Gold Potatoes & Sea Salt," and "Mashed Potatoes Red Potatoes with Garlic & Parmesan" frozen potato products that are manufactured and marketed by Alexia. The Plaintiffs allege that in connection with its marketing of the Products and its brand generally, Alexia makes representations that are intended to mislead consumers to believe that the Products are "All Natural" or "Natural," when in fact, they contain the synthetic chemical preservative disodium dihydrogen pyrophosphate. They note that Alexia's "All Natural" labeling is central to its marketing of the Products, and as a result, Alexia commands a premium price for the Products, using "All Natural" claims to distinguish the Products from its competitors' products. The Plaintiffs are residents of California. Alexia is a Delaware corporation, with principal place of business in Long Island City, New York. Alexia claims, "Alexia Foods produces an all-natural, trans-fat free line of frozen products for the natural and specialty food consumer. . .." The Plaintiffs are represented by: Roland Tellis, Esq. Mark Pifko, Esq. Natasha Mehta, Esq. BARON & BUDD, P.C. 1999 Avenue of the Stars, Suite 3450 Los Angeles, CA 90067 Telephone: (310) 860-0476 Facsimile: (310) 860-0480 E-mail: rtellis@baronbudd.com mpifko@baronbudd.com nmehta@baronbudd.com ARTHROCARE CORP: Enters Agreement to Settle Securities Suit ----------------------------------------------------------- ArthroCare Corporation entered into an agreement in principle to settle a securities class action lawsuit, according to the Company's November 28, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission. ArthroCare Corp., a leader in developing state-of-the-art, minimally invasive surgical products, announced that it has reached an agreement in principle to settle the private securities class action lawsuits pending against the Company and two of its former officers. These lawsuits were previously consolidated into the action titled In Re ArthroCare Corporation Securities Litigation, Case No. 1:08-cv-00574-SS (consolidated) in the U.S. District Court, Western District of Texas. The settlement, subject to final documentation and court approval, would settle all claims arising from the purchase or sale of ArthroCare securities of a class of all purchasers of ArthroCare common stock [and call options, and sellers of put options on ArthroCare common stock] between December 11, 2007, and February 18, 2009, inclusive (the Class), except those members of the Class who opt out, for a payment of $74 million to a settlement fund to be created for the settlement. If the settlement is approved, counsel for the plaintiff will apply for an award of attorneys' fees and reimbursement of expenses from the settlement fund. About ArthroCare ArthroCare develops and manufactures surgical devices, instruments, and implants that strive to enhance surgical techniques as well as improve patient outcomes. Its devices improve many existing surgical procedures and enable new minimally invasive procedures. Many of ArthroCare's devices use its internationally patented Coblation(R) technology. This technology precisely dissolves target tissue and limits damage to surrounding healthy tissue. ArthroCare also develops surgical devices utilizing other patented technology including its OPUS(R) line of fixation products as well as re-usable surgical instruments. ArthroCare is leveraging these technologies in order to offer a comprehensive line of surgical devices to capitalize on a multi- billion dollar market opportunity across several surgical specialties, including its two core product areas consisting of Sports Medicine and Ear, Nose, and Throat as well as other areas such as spine, wound care, urology and gynecology. BANK OF AMERICA: Accused in Calif. Suit of Cheating Homebuyers -------------------------------------------------------------- Glynis Farrell at Courthouse News Service reports that Bank of America found a new way to illegally extract money from customers, according to a federal class action: deduct taxes and insurance from mortgage payments, even though the homebuyers make those payments themselves, then call the mortgage in default for the unauthorized deductions, and charge late fees and penalties. Lead plaintiffs Rick and Susan Dolfo say that's what Bank of America did to them. "This is yet another tale of Bank of America cheating its customers," the complaint states. "In 2005, plaintiffs obtained a residential mortgage loan. Bank of America subsequently bought the servicing rights to the loan. From the time the loan was issued, plaintiffs complied with their obligations under the loan agreement. They made their monthly payments, maintained the required homeowner's insurance coverage and timely paid their property taxes. Nonetheless, in December 2009, plaintiffs noticed on their monthly mortgage statement that Bank of America paid their property taxes and homeowner's insurance without the plaintiffs' knowledge or consent, and even though plaintiffs also paid them. To fund the impound account, and without informing the plaintiffs, Bank of America took money from plaintiffs' monthly mortgage payment, not leaving enough to cover plaintiffs' monthly mortgage payment, throwing plaintiffs into default. Once in default, Bank of America, as the loan servicer, was able to charge additional fees and penalties. Bank of America also falsely reported to credit agencies that plaintiffs were in default on their mortgage." The Dolfos say Bank of America had no authority to set up an impound account because they were already paying their insurance and taxes. "Plaintiffs were not notified that Bank of America intended to create an impound account or that it created one. Plaintiffs never agreed to it. Bank of America had no authority, contractual or otherwise, to open or fund the impound account. There also was no need for an impound account as plaintiffs were already paying their insurance and taxes. "Prior to filing this suit, plaintiffs spent months trying to work with Bank of America to solve the problems created by Bank of America: to close the impound account, stop the double payment of homeowner's insurance and property taxes, stop the improper deduction from the monthly mortgage payments, reverse the improper default and have Bank of America correct the improper credit reporting. But, just like millions of other Americans who have tried to work with Bank of America, plaintiffs made no progress, and were constantly put off by Bank of America, mislead and ignored," the complaint states. The Dolfos say Bank of America also hurt their credit rating by false reports. They claim BofA has done this to other customers, and topped it off by "improper commencement of nonjudicial foreclosure on these properties secured by Bank of America loans." BAC Home Loans Servicing is also named as a defendant. The Dolfos seek class damages and punitive damages for breach of contract, unfair competition, violation of the Rosenthal Fair Debt Collection Practices Act, violation of the Consumer Credit Reporting Agencies Act and conversion. A copy of the Complaint in Dolfo, et al. v. Bank of America, N.A., et al., Case No. 11-cv-02828 (S.D. Calif.), is available at: http://www.courthousenews.com/2011/12/07/BofA.pdf The Plaintiffs are represented by: Timothy G. Blood, Esq. Thomas J. O'Reardon II, Esq. BLOOD HURST & O'REARDON, LLP 600 B Street, Suite 1550 San Diego, CA 92101 Telephone: (619) 338-1100 E-mail: tblood@bholaw.com toreardon@bholaw.com - and - Daniel R. Forde, Esq. Schuyler V.V. Hoffman V, Esq. HOFFMAN & FORDE 3033 Fifth Avenue, Suite 225 San Diego, CA 92103 Telephone: (619) 546-7880 E-mail: shoffman@hoffmanforde.com dforde@hoffmanforde.com BERNARD L. MADOFF: Investor Suits Against JPM, BNY Dismissed ------------------------------------------------------------ Bill Rochelle, the bankruptcy columnist for Bloomberg News, reports that JPMorgan Chase & Co. and Bank of New York Mellon won dismissal of three class-action suits filed against them by investors in three offshore funds that invested in the Ponzi scheme perpetrated by Bernard L. Madoff Investment Securities LLC. According to the report, the plaintiffs are all non-U.S. citizens who invested in funds closed to U.S. citizens. The funds in turn invested with Madoff. Seeking status as class actions, the plaintiffs sued the two banks in New York federal court, alleging the banks aided and abetted the fraud by providing services to the Madoff firm. The report relates that U.S. District Judge Richard M. Berman dismissed the suits against JPMorgan and Bank of New York in a 36- page opinion on Nov. 29. The suits were on behalf of investors in Thema International Fund Plc, Herald Fund SPC, and Primeo Select Fund. Mr. Rochelle discloses that the class claims based on state law were dismissed under the federal Securities Litigation Uniform Standards Act of 1998. Judge Berman said that SLUSA prohibits state law-based lawsuits regarding specified securities brought on behalf of classes of 50 or more. Judge Berman also dismissed parts of the suits under New York's Martin Act. He explained how the act precludes private lawsuits based on common law claims covered by the legislation. Judge Berman tossed the remainder of the suits on the basis of forum non conveniens, a term that means cases can be dismissed when filed in an inconvenient location. Berman concluded after analysis that the suits should be dismissed because New York isn't convenient for trial. Judge Berman said similar suits could go ahead in Ireland and Luxembourg where the plaintiffs are located. The case is In re Herald, Primeo and Thema Securities Litigation, 09-289, U.S. District Court, Southern District New York (Manhattan). About Bernard L. Madoff Bernard L. Madoff Investment Securities LLC and Bernard L. Madoff orchestrated the largest Ponzi scheme in history, with losses topping US$50 billion. On Dec. 15, 2008, the Honorable Louis A. Stanton of the U.S. District Court for the Southern District of New York granted the application of the Securities Investor Protection Corporation for a decree adjudicating that the customers of BLMIS are in need of the protection afforded by the Securities Investor Protection Act of 1970. The District Court's Protective Order (i) appointed Irving H. Picard, Esq., as trustee for the liquidation of BLMIS, (ii) appointed Baker & Hostetler LLP as his counsel, and (iii) removed the SIPA Liquidation proceeding to the Bankruptcy Court (Bankr. S.D.N.Y. Adv. Pro. No. 08-01789) (Lifland, J.). Mr. Picard has retained AlixPartners LLP as claims agent. On April 13, 2009, former BLMIS clients filed an involuntary Chapter 7 bankruptcy petition against Bernard Madoff (Bankr. S.D.N.Y. 09-11893). The case is before Hon. Burton Lifland. The petitioning creditors -- Blumenthal & Associates Florida General Partnership, Martin Rappaport Charitable Remainder Unitrust, Martin Rappaport, Marc Cherno, and Steven Morganstern -- assert US$64 million in claims against Mr. Madoff based on the balances contained in the last statements they got from BLMIS. On April 14, 2009, Grant Thornton UK LLP as receiver placed Madoff Securities International Limited in London under bankruptcy protection pursuant to Chapter 15 of the U.S. Bankruptcy Code (Bankr. S.D. Fla. 09-16751). The Chapter 15 case was later transferred to Manhattan. In June 2009, Judge Lifland approved the consolidation of the Madoff SIPA proceedings and the bankruptcy case. Judge Denny Chin of the U.S. District Court for the Southern District of New York on June 29, 2009, sentenced Mr. Madoff to 150 years of life imprisonment for defrauding investors in United States v. Madoff, No. 09-CR-213 (S.D.N.Y.) As of July 15, 2011, a total of US$6.88 billion in claims by investors has been allowed, with US$794.9 million to be paid by the Securities Investor Protection Corp. Investors are expected to receive additional distributions from money recovered by Mr. Picard from lawsuits or settlements. Mr. Picard has filed 1,000 lawsuits seeking $100 billion from banks such as HSBC Holdings Plc and JPMorgan Chase & Co. The trustee has seen more than $28 billion of his claims tossed by district judges. BP EXPLORATION: Faces Class Action in Louisiana Over Oil Spill -------------------------------------------------------------- Sabrina Canfield at Courthouse News Service reports that a class action filed on the eve of a U.S. House vote on how to use Clean Water Act fines from the Deepwater Horizon oil spill claims that the 5 million barrels of oil dumped into the Gulf of Mexico by BP and Transocean will continue to hurt the region. The House Transportation and Infrastructure Committee was set to hold a hearing on Dec. 7 on two bills, together known as the Restore Act, that propose dedicating 80% of the Clean Water Act fines recovered from the oil spill to rebuilding wetlands and repairing oyster and coral reefs, and other long-term restoration projects. A similar bill is being reviewed in Senate committees. Federal Clean Water Act fines range between $1,100 and $4,300 per barrel of oil spilled. In this case, that's somewhere between $5.5 and $21 billion. The Restore Act bill scheduled for a vote on Dec. 7 proposes distributing the Clean Water Act fines as follows: 35% to be divided equally among the five Gulf states (Florida, Alabama, Mississippi, Louisiana and Texas); 30% for comprehensive restoration plans for Gulf states, and 30% for impact-driven projects for states with the most damage. The rest would fund long-term studies of the Gulf. If the Restore Act fails, the money recovered will go into the federal Oil Spill Liability Trust Fund. While that money will stem from damages to the Gulf of Mexico, the federal government will not be obligated to spend any of it to restore the Gulf Coast. In November, U.S. District Judge Carl Barbier, who is overseeing the consolidated oil spill litigation, ruled that states cannot collect damages from oil spill defendants separate from Clean Water Act fines. The states will have to rely upon the federal government for restoration money. In the new class action, Cecil Lapeyrouse and 122 others say their livelihoods depend on the health of the Gulf of Mexico. "Much of the oil that was released from the well now rests on the seafloor and remains extremely hazardous and/or toxic, posing a constant and significant risk to marine life in and around the Gulf of Mexico," according to the complaint. Ms. Lapeyrouse says he has owned and operated a general store in Chauvin, La. for more than 25 years, selling fuel, bait, and groceries to the public and to commercial and recreational fishermen. The April 20, 2010 explosion of the Deepwater Horizon killed 11 people and unleashed the worst oil spill in U.S. history. The oil slick covered a surface area larger than South Carolina. (A growing number of people along the Gulf Coast believe the Macondo formation continues to leak oil from the seafloor. In August, U.S. District Magistrate Judge Sally Shushan issued an orderwaiving the "security zone" around the Macondo well, imposed by another judge after the well was capped in 2010. In November, BP confirmed to Courthouse News that it has several vessels in the vicinity of the well, researching oil seeps.) The new class action states: "Much of the oil that was released from the well now rests on the seafloor and remains extremely hazardous and/or toxic, posing a constant and significant risk to marine life in and around the Gulf of Mexico; marine life crucial to the vast and complex food chain of the Gulf of Mexico from Lake Charles, Louisiana to Key West, Florida. The oil is particularly toxic to juvenile and other slow-moving marine life at the bottom of the aquatic food chain such as plankton, shrimp, crabs, fish, and other species. For months after the well was capped, slow- moving marine species could not escape the continuous walls of oil suspended in the Gulf's water column. Scientists fear that, in the coming years, the walls of oil will have created massive generational gaps in numerous aquatic species, further damaging the Gulf Coast's fragile fishing industry. "Plaintiffs derive their income either directly or indirectly from or on the coastal waters of Louisiana and the Gulf of Mexico which will be dramatically affected for years to come. The oil spill has created a negative perception as to the quality and safety of the Louisiana seafood brand. Commercial fishermen have experienced reduced catches and plummeting market prices. Bait shops and marinas have witnessed their profits dwindle in the wake of numerous fishery closures along the Gulf coast. The ecological calamity has become the worst oil spill in the history of the United States, wreaking billions of dollars of damages to plaintiffs and others similarly situated." The complaint adds: "BP and Transocean knew that their actions and omissions created unsafe and hazardous conditions. BP and Transocean did nothing to remedy the unsafe conditions even though they had knowledge of them prior to the incident. BP and Transocean's acts and omissions in this regard, when viewed objectively from the standpoint of BP and Transocean, involved an extreme degree of risk, considering the probability and magnitude of potential harm to others. BP and Transocean had actual, subjective awareness of the risk involved, but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others, including plaintiffs. . . . "Prior to the incident described above, the Gulf of Mexico was one of the most prolific recreational and food source grounds for plaintiffs and was the natural source of most of the seafood supplied to the Gulf region. As a result of the above described incidents, the fisheries and other natural resources in the Gulf of Mexico have been harmed to the extent that plaintiffs' business ties to the fishing and recreational industries have been significantly damaged and will continue to be damaged for many years to come." Named as defendants are BP, Transocean, and Cameron International Corp., the manufacturer of the faulty blowout preventer. Business Week on Dec. 6 speculated that the Justice Department and BP will likely strike a deal on CWA fines. According to Business Week: "Noah Hall, an environmental-law professor at Wayne State University in Detroit, said the BP penalty probably will be lower than the maximum allowed and large enough for President Barack Obama to claim the company has been punished enough. . . . "'This is more of a political decision than a legal decision,' Mr. Hall said. 'This will probably end in a settlement with a figure that will allow President Obama to say he hit BP with the largest civil environmental fine in U.S. history, while also assuring BP investors.'" A copy of the Complaint in Lapeyrouse, et al. v. BP Exploration and Production, Inc., et al., Case No. 11-cv-02992 (E.D. La.), is available at: http://www.courthousenews.com/2011/12/07/Lapeyrouse.pdf The Plaintiffs are represented by: Byron M. Hutchinson, Esq. Loren G. Klitsas, Esq. KLITSAS & VERCHER, P.C. 550 Westcott, Suite 570 Houston, TX 77007 Telephone: (713) 862-1365 - and - James S. Walker, Esq. Jeff D. Crawford, Esq. WALKER & CRAWFORD, P.C. 1924 Portsmouth Houston, TX 77098 Telephone: (713) 552-1117 - and - Jerry G. Gottesman, Esq. GOTTESMAN LAW FIRM 6633 Hillcroft, Suite 103 Houston, TX 77081 Telephone: (713) 981-6794 CASSELS BROCK: Judge Dismisses Class Action ------------------------------------------- Julius Melnitzer, writing for Financial Post, reports that Justice Paul Perell has dismissed the action of the putative representative plaintiff in a proposed class action against Cassels, Brock & Blackwell on the basis that the limitation period had expired, but indicated that he otherwise would have certified the proceedings against the firm on the pleading of negligence. The plaintiff in Lipson v. Cassels Brock & Blackwell LLP had alleged that Cassels Brock had negligently represented the efficacy of a trust set up for tax purposes. CLUB CAR: Recalls 600 Golf Cars Due to Fuel Leak and Fire Hazard ---------------------------------------------------------------- About 600 Golf Cars were voluntarily recalled by Club Car LLC, of Augusta, Georgia, in cooperation with the CPSC. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The fuel tank seam can separate and allow fuel to leak, posing a fire hazard. Club Car has received three reports of incidents involving fuel tank seams splitting. No injuries or fires have been reported. This recall involves the following 2011 Precedent golf cars. The model and serial numbers are located above the passenger's side floor board. "Club Car" is printed on the front of the golf cars. Recalled Precedent Golf Cars --------------------------------------- Model Serial Number Range ----- ----------------------------- CF CF1139-233925 - CF1147-250173 PR PR1139-233918 - PR1147-249956 PY PY1144-244648 A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12706.html The recalled products were manufactured in the United States of America and sold at authorized Club Car dealers nationwide from April 2011 through May 2011 for between $8,000 and $9,200. Consumers should stop using the recalled golf cars and contact Club Car for a free inspection and replacement of the fuel tank. The firm is directly contacting consumers who purchased the golf cars. For more information, contact Club Car at (800) 227-0739 ext. 3580 between 8:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday, or visit the firm's Web site at http://www.clubcar.com/ DIAMOND FOODS: Faces Suits Over Crop Payments to Walnut Growers --------------------------------------------------------------- Diamond Foods, Inc., disclosed in its November 28, 2011, Form 8-K filing with the U.S. Securities and Exchange Commission that it is facing a number of putative securities class action lawsuits relating to certain crop payments to walnut growers. On November 1, 2011, Diamond announced that the Audit Committee of the Diamond Board of Directors had decided to perform an investigation of Diamond's accounting for certain crop payments to walnut growers. The Audit Committee has since retained Gibson, Dunn & Crutcher LLP and KPMG LLP to assist the Audit Committee in the investigation. Beginning on November 7, 2011, the first of a number of putative securities class action lawsuits was filed in the United States District Court for the Northern District of California against Diamond and certain of its executive officers. These lawsuits allege that defendants made materially false and misleading statements, or failed to disclose material facts, regarding Diamond's financial results, operations and prospects, including its accounting for payments to walnut growers and the anticipated timing of closing Diamond's proposed acquisition of the Pringles business (the "Pringles Transaction") from The Procter & Gamble Company ("P&G"). These lawsuits seek compensatory damages, interest thereon, costs and expenses incurred in such actions, as well as equitable or other relief. Diamond anticipates that further lawsuits making similar allegations may be filed and that all such purported class actions will be consolidated into a single case. Diamond says it intends to defend the actions vigorously. DRUG STORES: Appeal Ruling From W.Va. Law Firm's Class Action ------------------------------------------------------------- John O'Brien, writing for Legal Newsline, reports that several drug stores sued in Minnesota by a West Virginia law firm are appealing a ruling that says the class action lawsuit should be heard in a state court. The drug stores -- which include CVS, Target and Wal-Mart -- are alleged to have not passed savings on generic drugs to consumers in the lawsuit. A district judge has determined that the plaintiffs -- who are represented by Bailey and Glasser of Charleston, W.Va. -- timely filed a motion to remand the case after the drug stores had it removed to federal court. They filed their appeal to the U.S. Court of Appeals for the Eighth Circuit last week. The remand motion was submitted more than 100 days after the drug stores removed the case to federal court and after Rosenbaum had harshly dismissed the original complaint. The drug stores say the plaintiffs continued to litigate the case after it was removed. It was also filed after a Michigan federal court remanded three similar lawsuits brought by the firm. That was done on Dec. 1, 2009, and eventually the cases were dismissed. "(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," Magistrate Judge Janie Mayeron wrote in October. "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." In November 2009, U.S. District Judge James 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," Judge 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." Judge Rosenbaum allowed the plaintiffs to amend the complaint then granted remand. When the drug stores appealed, the Eighth Circuit said the district court should rule on the timeliness issue. Judge Michael Davis was assigned the case after Judge Rosenbaum retired and adopted a magistrate's recommendation that the case be remanded. 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. The U.S. Supreme Court has decided not to hear the stores' appeal of a Fourth Circuit ruling that remanded the case. ELECTRONIC ARTS: Sued Over False Advertising on Video Game ---------------------------------------------------------- Courthouse News Service reports that a class claims Electronic Arts and Sony ran a bait and switch, promising people who pre- ordered a PlayStation 3 console they would get a free "Battlefield 1943" game, but after opening the box, customers found they had to buy the game separately. A copy of the Complaint in Dorrance v. Electronic Arts, Inc., et al., Case No. CIV509808 (Calif. Super. Ct., San Mateo Cty.), is available at: http://www.courthousenews.com/2011/12/07/VideoGame.pdf The Plaintiff is represented by: Sean P. Reiss, Esq. EDELSON MCGUIRE LLP 30021 Tomas Street, Suite 300 Rancho Santa Margarita, CA 92688 E-mail: sreis@edelson.com - and - Raffy S. Balabanian, Esq. Brad Baglien, Esq. Ben Thomassen, Esq. EDELSON MCGUIRE, LLC 350 North LaSalle Street, Suite 1300 Chicago, IL 60654 Telephone: (312) 589-6370 E-mail: rbalabanian@edelson.com bbaglien@edelson.com bthomassen@edelson.com HARLEYSVILLE MUTUAL: Sued in Penn. Over Nationwide Mutual Merger ---------------------------------------------------------------- Courthouse News Service reports that the "policyholder-owners" of Harleysville Mutual Insurance Co. say the directors are planning to sell the company to Nationwide Mutual Insurance Co. in a $750 million deal through which company directors will get "millions of dollars while their policyholder-owners get nothing." A copy of the Complaint in 34 Butler Real Estate, L.L.C., et al. v. Browne, et al., Case No. 111200408 (Pa. C.P. Ct.), is available at: http://www.courthousenews.com/2011/12/07/SCA.pdf The Plaintiff is represented by: Daniel E. Bacine, Esq. Mark R. Rosen, Esq. Jeffrey B. Gittleman, Esq. Chad A. Carder, Esq. BARRACK, RODOS & BACINE 3300 Two Commerce Square 2001 Market Street Philadelphia, PA 19103 Telephone: (215) 963-0600 E-mail: dbacine@barrack.com mrosen@barrack.com jgittleman@barrack.com ccarder@barrack.com - and - Allen D. Black, Esq. Donald L. Perelman, Esq. Roberta D. Liebenberg, Esq. FINE, KAPLAN & BLACK 1835 Market Street, 28th Floor Philadelphia, PA 19103 Telephone: (215) 567-6565 E-mail: ablack@finekaplan.com dperelman@finekaplan.com rliebenberg@finekaplan.com - and - Jason Adkins, Esq. John Zavez, Esq. ADKINS, KELSTON & ZAVEZ Fifth Floor 90 Canal Street Boston, MA 02114 Telephone: (617) 367-1040 HILLENBRAND INC: Awaits 5th Circuit Ruling on FCA Suit Appeal ------------------------------------------------------------- Hillenbrand, Inc. is awaiting a ruling from the U.S. Court of Appeals for the Fifth Circuit on an appeal from the dismissal of an antitrust class action lawsuit commenced by Funeral Consumers Alliance, Inc., according to Hillenbrand's November 28, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2011. In 2005, the Funeral Consumers Alliance, Inc. (FCA) and a number of individual consumer casket purchasers filed a purported class action antitrust lawsuit on behalf of certain consumer purchasers of Batesville(R) caskets against the Company and its former parent company, Hillenbrand Industries, Inc., now Hill-Rom Holdings, Inc. ("Hill-Rom"), and three national funeral home businesses (the "FCA Action"). The lawsuit claimed, among other things, that the Company's maintenance and enforcement of, and alleged modifications to, its long-standing policy of selling caskets only to licensed funeral homes were the product of a conspiracy among the Company, the other defendants, and others to exclude "independent casket discounters," resulting in suppressed competition in the alleged market for caskets and allegedly leading consumers to pay higher than competitive prices for caskets. Plaintiffs in the FCA Action have generally sought monetary damages on behalf of a class of purchasers of Batesville caskets, trebling of any such damages that may be awarded, recovery of attorneys' fees and costs, and injunctive relief. The plaintiffs in the FCA Action filed a report indicating that they were seeking damages ranging from approximately $947.0 million to approximately $1.460.0 billion before trebling on behalf of the purported class of consumers they seek to represent, based on approximately one million casket purchases by the purported class members. The Federal District Court for the Southern District of Texas denied class certification on March 26, 2009, and ultimately dismissed the lawsuit on September 24, 2010, concluding that "plaintiffs shall take nothing by their lawsuit." Currently, the FCA Action is on appeal to the Fifth Circuit Court of Appeals. Plaintiffs have appealed both the District Court's order of dismissal and the order denying class certification. The parties have submitted all appellate briefs, and the Court of Appeals has tentatively scheduled oral argument for December 5, 2011. After consideration of the parties' oral arguments and briefing, the Court of Appeals will issue its ruling affirming or reversing the District Court. If plaintiffs succeed in overturning the judgment, reversing the District Court order denying class certification, and a class is subsequently certified in the FCA Action filed against Hill-Rom and Batesville, and if the plaintiffs prevail at a trial of the class action, the damages awarded to the plaintiffs, which would be trebled as a matter of law, could have a material adverse effect on the Company's results of operations, financial condition, and cash flows. In antitrust actions such as the FCA Action, the plaintiffs may elect to enforce any judgment against any or all of the co-defendants, who have no statutory contribution rights against each other. The Company and Hill-Rom have entered into a Judgment Sharing Agreement that apportions the costs and any potential liabilities associated with this litigation between the Company and Hill-Rom. The defendants are vigorously contesting both liability and the plaintiffs' damages theories. As of September 30, 2011, the Company had incurred approximately $28.8 million in cumulative legal and related costs associated with the FCA Action since its inception. INTERSTATE BATTERY: Settles Class Action Over Battery Warranty -------------------------------------------------------------- Girard Gibbs LLP on Dec. 7 issued a statement regarding the Milano v. Interstate Battery System of America, Inc., et al. class action settlement. What is this about? A nationwide class action settlement has been preliminarily approved by the Court in Milano v. Interstate Battery System of America, Inc., et al., Case No. 4:10-cv-02125-CW (N.D. Cal.). The lawsuit claims that you may have overpaid for a replacement battery under the terms of Interstate Batteries' pro-rata warranty. Defendants deny they did anything wrong. You Are a Member of the Settlement Class If: You purchased an Interstate Batteries trademarked battery from an authorized dealer in the United States or the District of Columbia; Your original battery had an Interstate Batteries' pro-rata warranty; You returned your failed original battery to an Interstate Batteries authorized warranty dealer during your pro-rata- warranty-coverage period; and You then purchased a replacement battery from that dealer at an adjusted price under the pro-rata warranty between May 19, 2006, and November 17, 2011. The Settlement Benefits If the Court grants final approval of the settlement, Interstate Batteries will improve a number of its warranty practices going forward. Settlement Class Members who have receipts from their pro-rata transaction can submit claims for their choice between a $12 product voucher or $8.50 check card. Settlement Class Members without receipts can participate and receive a $5 product voucher. Claims must be submitted by December 31, 2012. Product vouchers can be used at Interstate All Battery Center Stores and at http://www.InterstateBatteries.com The Fairness Hearing The Court will determine whether to approve the settlement and award attorney fees on March 8, 2012, at 2:00 p.m., at the U. S. District Court, Northern District of California, Courtroom 2, 1301 Clay Street, Oakland, CA 94612. Objections must be mailed by January 27, 2012. To find out if the date of the Fairness Hearing has changed, visit the Class Settlement Web site at http://www.InterstateBatteriesSettlement.com Settlement Class Members do not have to, but can submit comments and objections, and ask to appear at the hearing. The Court appointed counsel to represent the Class. To contact class counsel, visit http://www.GirardGibbs.com/InterstateBatteries.asp If the settlement is approved, the attorneys representing the class will be paid separately by Interstate Batteries. More Information This is a Summary Notice. For complete information on the settlement and for complete details on what you must do to file objections and appear at the Fairness Hearing, visit http://www.InterstateBatteriesSettlement.comor write to Milano v. Interstate Battery System of America, c/o GCG, P.O. Box 9782, Dublin, OH 43017-5682. INTRALINKS HOLDINGS: Holzer Holzer & Fistel Files Class Action -------------------------------------------------------------- Holzer Holzer & Fistel, LLC on Dec. 7 disclosed that it has filed a class action lawsuit in the United States District Court for the Southern District of New York on behalf of purchasers of IntraLinks Holdings, Inc. common stock who purchased shares between February 17, 2011 and November 10, 2011, inclusive. The lawsuit alleges, among other things, that IntraLinks failed to timely disclose a significant slowdown in the Company's Enterprise business segment. If you purchased IntraLinks common stock during the Class Period, you have the legal right to petition the Court to be appointed a "lead plaintiff." A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. Any such request must satisfy certain criteria and be made no later than February 3, 2012. Any member of the purported class may move the Court to serve as lead plaintiff through counsel of their choice, or may choose to do nothing and remain an absent class member. If you are an IntraLinks investor and would like to discuss a potential lead plaintiff appointment, or your rights and interests with respect to the lawsuit, you may contact Michael I. Fistel, Jr., Esq., or Marshall P. Dees, Esq. via e-mail at mfistel@holzerlaw.com or mdees@holzerlaw.com or via toll-free telephone at (888) 508-6832. Holzer Holzer & Fistel, LLC -- http://www.holzerlaw.com-- is an Atlanta, Georgia law firm that represents shareholders and investors in litigation nationwide, including shareholder class action and derivative litigation. LEHMAN BROTHERS: Underwriters Reach Class Action Settlement ----------------------------------------------------------- Nate Raymond, writing for The American Lawyer, reports that for all that went wrong at Lehman Brothers Holdings Inc., securities class action plaintiffs lawyers have had a lot to overcome in litigation related to the poster child for the financial crisis. To begin with, Lehman has been mired in Chapter 11 bankruptcy since its collapse in September 2008, leaving lawyers at Bernstein Litowitz Berger & Grossman and Kessler Topaz Meltzer & Check to chase after dwindling directors and officers' insurance funds and to assert claims against Lehman's well-defended underwriters. With those caveats in mind, David Kessler of Kessler Topaz said he is "pretty pleased" with settlements worth a combined $507 million that the firms disclosed in court papers on Dec. 2. The proposed settlements, which still need approval from Manhattan federal district court judge Lewis Kaplan, include $417 million from about two dozen underwriters including Bank of America, Wells Fargo, and Morgan Stanley, and a previously reported $90 million agreement with former directors and officers, including former CEO Richard Fuld. "We're basically in a salvage mode when you have a case like this," Mr. Kessler said. "Anytime you get a half billion dollars in a case involving a bankrupt entity, it's a pretty good result." According to the plaintiffs' motion for court approval of the settlements, preliminary settlement discussions began in late 2010. A major turning point in the case came in June, when Judge Kaplan largely denied defense motions to dismiss an amended complaint. The complaint borrowed heavily from Jenner & Block chairman Anton Valukas's examiner's report and its revelations about Lehman's "Repo 105" accounting gimmick, which allegedly helped the bank understate its leverage. "While it perhaps may be said with some assurance that Lehman, given the assets it held, would have been in trouble in any case, it is entirely plausible to conclude also from the facts alleged in the [amended complaint] that the misleading picture that Lehman portrayed played a material part in keeping its stock higher during the class period than it otherwise would have been and, in consequence that some part of the losses the plaintiffs suffered was attributable to the alleged fraud," Judge Kaplan ruled. Mr. Kessler said that settlements were the works with additional underwriters, and that the lawyers would most likely file court papers detailing the agreements last week. Max Berger of Bernstein Litowitz told the American Lawyer that the additional deals would bring the total settlements in the case so far to $517 million. Following last week's agreements, Mr. Kessler said that the focus of the case will now turn to non-settling defendants UBS Financial Services Inc. and Ernst & Young. UBS is facing different allegations than other underwriters because it underwrote principal protected notes, structured investment products that Mr. Kessler said were guaranteed regardless of Lehman's bankruptcy. UBS counsel Marshall King of Gibson, Dunn & Crutcher did not respond to a request for comment. As for Ernst & Young, Valukas' examiner's report concluded that the auditor had signed off on the Lehman's "materially misleading" financial statements. E&Y, represented by Miles Rutherberg of Latham & Watkins, has said it believes it "will ultimately prevail on the remaining claim." Lawyers for the various directors and officers, including Andrew Levander of Dechert for Lehman's independent directors and Patricia Hynes of Allen & Overy for Fuld, did not respond to requests for comment. Mitchell Lowenthal of Cleary Gottlieb Steen & Hamilton, who negotiated the settlement on behalf of the underwriters, did not respond to a request for comment. PERFORMANCE SPORTS: Sued Over False Claims on Golf Shirt -------------------------------------------------------- Courthouse News Service reports that Performance Sports Brands advertises that its "energy fabric" golf shirt "gives you a measurable, science-based performance advantage," but it doesn't, a class action claims in Los Angeles Superior Court. READER'S DIGEST: Sued in N.Y. Over Subscription Term Changes ------------------------------------------------------------ Courthouse News Service reports that a federal class action filed in Manhattan claims that Reader's Digest Association changes the terms of annual subscriptions, "including the number of issues and/or the duration of the subscription" its magazines after readers have subscribed. RESEARCH IN MOTION: Sued Over Deceptive Bait-and-Switch Tactics --------------------------------------------------------------- Courthouse News Service reports that a class action claims that Research in Motion and Globalware Solutions advertised a BlackBerry PlayBook for $199 through the shopblackberry.com Web site, but rejected orders and tried to sell tablet computer for a higher price. A copy of the Complaint in Salpietro v. Research in Motion, Ltd., et al., Case No. 11-25089 (Pa. C.P. Ct., Allegheny Cty.), is available at: http://www.courthousenews.com/2011/12/07/ResearchinMotion.pdf The Plaintiffs are represented by: Ronald G. Backer, Esq. Lori R. Miller, Esq. ROTHMAN GORDON, P.C. 310 Grant Street, Third Floor Pittsburgh, PA 15219 Telephone: (412) 338-1185 E-mail: rgbacker@rothmangordon.com SACRAMENTO RESTAURANTS: Settle Hooters' Class Action ----------------------------------------------------- Debra Cassens Weiss, writing for ABA Journal, reports that a lawyer who represented about 400 Hooters workers in a California class action targeting the restaurants around Sacramento says the company has agreed to settle the litigation for an unspecified amount. Lawyer Burton Boltuch told 3KCRA.com that all the employees he represented are being compensated. He said the settlement also requires the restaurant to relax certain uniform requirements, provide breaks, pay for all work and stop holding workers responsible when customers walk out without paying. SIRIUSXM: Judge Tosses Misleading Advertising Class Action ---------------------------------------------------------- A class action lawsuit against SiriusXM over misleading advertising has been tossed out of court, FMQB reports, citing PaidContent.org. A federal court in San Diego rejected Joel Broida's claim that an ad from the satcaster deceived him and other subscribers into paying more than they should have for a two-year subscription. In throwing the suit out for a second time, the judge noted that Mr. Broida, a resident of Colorado, could not use New York laws for the basis of his suit, and added that he was unable to even produce the ad itself. According to PaidContent, the case was dismissed "with prejudice," which means SiriusXM is free of multiple consumer lawsuits that have been brought against the satcaster in recent years. However, SiriusXM has two major lawsuits still hanging over it: the suit from Howard Stern over his bonus payments and a shareholder suit against CEO Mel Karmazin and other top executives. In late August, a New York federal judge allowed the core of this suit to proceed, which claims Mr. Karmazin and other executives defrauded shareholders during the period before the satcaster was financially rescued by Liberty Media. PaidContent reports the case is expected to move forward at some point in the future. SKYWORKS SOLUTIONS: Continues to Defend AATI Merger-Related Suit ---------------------------------------------------------------- On May 26, 2011, Skyworks Solutions, Inc., announced it had entered into an agreement and plan of merger (the "Merger Agreement") with PowerCo Acquisition Corp., a wholly owned subsidiary of the Company ("Merger Sub") and Advanced Analogic Technologies Incorporated ("AATI") pursuant to which the Merger Sub will, subject to the satisfaction or waiver of the conditions in the Merger Agreement, merge with and into AATI, and AATI will survive the merger and become a wholly owned subsidiary of the Company (the "Merger"). On June 6, 2011, a putative stockholder class action lawsuit was filed in California Superior Court in Santa Clara County (Case No. 111CV202403) (the "Bushansky action") naming AATI, the members of AATI's board of directors, the Company and Merger Sub as defendants. The complaint alleges, among other things, (1) that the members of AATI's board of directors breached their fiduciary duties by (a) failing to take steps to maximize the value of the merger consideration to AATI's stockholders, (b) taking steps to avoid competitive bidding, and (c) failing to protect against conflicts of interest resulting from change-of-control and transaction-related benefits received by AATI directors in connection with the merger that are not available to all stockholders, and (2) that AATI, the members of AATI's board of directors, the Company and Merger Sub aided and abetted these purported breaches of fiduciary duties. The complaint seeks to enjoin consummation of the merger or, if the merger is completed, to recover damages caused by the alleged breaches of fiduciary duties. The complaint also seeks recovery of attorney's fees and costs of the lawsuit. On June 7, 2011, a putative stockholder class action lawsuit was filed in California Superior Court in Santa Clara County (Case No. 111CV202501) (the "Venette action") naming AATI, the members of AATI's board of directors, the Company and Merger Sub as defendants. Plaintiffs filed an amended complaint on July 14, 2011 (the "Amended Complaint"). The Amended Complaint alleges, among other things, (1) that the members of AATI's board of directors breached their fiduciary duties by (a) agreeing to the merger for inadequate consideration on unfair terms, (b) failing to protect against conflicts of interest resulting from change-of- control and transaction-related benefits received by AATI directors in connection with the merger that are not available to all stockholders, (c) selling the company in response to alleged pressure from Dialectic Capital Partners, LP ("Dialectic"), (d) taking steps to avoid competitive bidding (including the entry by certain AATI officers and directors into agreements with the Company relating to voting commitments and inclusion in the merger agreement of nonsolicitation provisions and a termination fee), and (e) by causing the issuance of a materially misleading Form S- 4 Registration Statement which, inter alia, purportedly fails to disclose material facts surrounding (i) Dialectic's impact on the proposed merger process, (ii) the AATI board of directors' evaluation of the Company and its offer for AATI, and (iii) supporting figures and analysis regarding the fairness opinion that the AATI Board obtained from its financial advisor, Needham & Company, LLC, in connection with the transaction and (2) that AATI, the members of AATI's board of directors, the Company and Merger Sub aided and abetted these purported breaches of fiduciary duties. The Amended Complaint seeks to enjoin consummation of the merger, and to have the court direct the defendants to implement procedures and processes to maximize shareholder value. The Amended Complaint also seeks recovery of attorney's fees and costs of the lawsuit. On July 26, 2011, the Court issued an order consolidating the Bushansky action and Venette action into a single, consolidated action captioned In re Advanced Analogic Technologies Inc. Shareholder Litigation, Lead Case No. 111CV202403, and designating the Amended Complaint as the operative complaint in the litigation. No further updates were reported in the Company's November 28, 2011, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended September 30, 2011. The Company believes that the claims in the consolidated action are without merit and intends to defend against such claims vigorously. SOLMAC CONSTRUCTIONS: Creditors Mull Class Action Over Collapse --------------------------------------------------------------- Nick Nichols, writing for Goldcoast.com.au, reports that creditors of failed Gold Coast developer Solmac Constructions are taking their grievances to the corporate watchdog and plan to launch a class action against the directors following the company's AU$15 million collapse. More than 20 trade creditors, owed up to AU$7 million, resolved to place the company into liquidation and conduct a full investigation into its affairs. Spokesman Joe O'Neill, of O'Neill's Law at Kingscliff, said creditors also agreed to establish a fighting fund of at least AU$35,000 in order to pursue a full investigation. Solmac Constructions is one of three companies within the Solmac Group to strike financial trouble, with Solmac Developments and Market Square No.1 both in liquidation. Solmac is controlled by Stephen Solomons and Duncan McInnes, who have both been involved in the development industry on the Gold Coast for about 20 years. SOUTHERN CALIFORNIA: Sued Over Faulty Electric Meters ----------------------------------------------------- Jamie Ross at Courthouse News Service reports that Southern California Edison's faulty electric meters overcharged a single homeowner $78,000 in 10 years, and the company has 12 million customers, the man claims in a Superior Court class action. The lead plaintiff claims SCE overcharged him about $650 a month for his home electricity for 10 years -- $7,800 in overcharges per year. SCE provides electricity to more than 12 million people in Southern California. Lead plaintiff Robert Kleinberger claims that SCE began replacing its old meters with SmartConnect meters in September 2010. He claims that "incorrect measurements of mechanical meters" SCE used for years overcharged him and others, and that "plaintiff and the putative class had no reasonable way of knowing whether their mechanical meters were accurately monitoring their electricity range." Mr. Kleinberger claims he "was charged in excess of 100% of his actual usage from the start of his electricity service in or about 2001 to 2010, when the SmartConnect meter was installed on plaintiff's premises. . . . SCE overcharged plaintiff by an average of approximately $650 per month, which amounted to approximately $78,000 in excess electricity charges." Mr. Kleinberger says his "September 2010 SCE bill (just before the SmartConnect meter was installed) was $1,025.53, but his November 2010 SCE bill (i.e., after the SmartConnect meter began properly monitoring plaintiff's electricity usage) dropped to only $353.97 -- that is a difference of $671.56, even though plaintiff's usage did not meaningfully change between August 2010 and November 2010." Mr. Kleinberger says he noticed in 2001 that his electricity bills were extraordinarily high, but SCE claimed his meter was accurate. Since the "faulty meter caused SCE to inflate each of the bills it sent to plaintiff (including the first bill after plaintiff moved into his residence), plaintiff had no prior usage or other reference against which he could compare his SCE bills," Mr. Kleinberger says. California suffered a profound electricity crisis in 2000-2001, after deregulation. Electricity prices increased eightfold or more as traders learned to game the system. The market manipulation is believed to have cost consumers more than $40 billion. The enormous profits allowed Enron, among others, to post fat-looking gains, until other manipulation led to that company's collapse in October 2001. SCE, the largest electric company in Southern California, nearly went bankrupt during the crisis. Mr. Kleinberger says he did not discover that his meter was inaccurate until September 2010, when SCE sent over a technician. Mr. Kleinberger says when he "asked the SCE technician how he could have known if the mechanical meter was broken, the technician replied that there was no way for a consumer to determine his mechanical meter was malfunctioning without an SCE technician examining the meter and alerting the consumer." In 2010, SCE reported a net income of $1 billion, $35 billion in total assets, and more than $9.9 billion in operating revenue. Mr. Kleinberger says he does not challenge the electric rates, but he seeks "monetary damages for excessive billing for electricity by defendants as a result of faulty meters in place prior to the 'SmartConnect' meters installed at the consumers' premises." The Plaintiff is represented by: Quyen Kiet, Esq. KIET, COTHRAN & ZIRILLO 1748 West Katella Avenue Suite 112 Orange, CA 92867-3559 Telephone: (714) 974-5652 STATE OF FLORIDA: Judge Certifies Welfare Drug Test Class Action ---------------------------------------------------------------- The Associated Press reports that a legal challenge to a Florida law requiring drug testing of welfare applicants now is a class action case. U.S. District Judge Mary Scriven on Dec. 7 in Orlando granted a class action request. It was sought by the American Civil Liberties Union, which is representing Orlando resident Luis Lebron in the case. The certification will let the challenge continue on behalf of all applicants for temporary assistance even if Mr. Lebron himself becomes ineligible. Judge Scriven previously issued an order temporarily blocking implementation of the law championed by Gov. Rick Scott. The state is appealing the order that put testing on hold until Judge Scriven can hold a full hearing. She found the law may violate a constitutional ban on unreasonable searches and seizures. THOR INDUSTRIES: Still Defends Formaldehyde Exposure Class Suits ---------------------------------------------------------------- Thor Industries, Inc. continues to defend itself from lawsuits alleging exposure to formaldehyde emitted from travel trailers, park model trailers and manufactured homes provided by the Federal Emergency Management Agency following Hurricanes Katrina and Rita in 2005, according to the Company's November 28, 2011, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended October 31, 2011. Beginning in 2006, a number of lawsuits were filed against numerous trailer and manufactured housing manufacturers, including complaints against the Company. The complaints were filed in various state and federal courts throughout Louisiana, Alabama, Texas and Mississippi on behalf of Gulf Coast residents who lived in travel trailers, park model trailers and manufactured homes provided by the Federal Emergency Management Agency ("FEMA") following Hurricanes Katrina and Rita in 2005. The complaints generally allege that residents who occupied FEMA supplied emergency housing units, such as travel trailers, were exposed to formaldehyde emitted from the trailers. The plaintiffs allege various injuries from exposure, including health issues and emotional distress. Most of the initial cases were filed as class action lawsuits. The Judicial Panel on Multidistrict Litigation (the "MDL panel") has the authority to designate one court to coordinate and consolidate discovery and pretrial proceedings. The MDL panel transferred the actions to the United States District Court for the Eastern District of Louisiana (the "MDL Court") because the actions in different jurisdictions involved common questions of fact. The MDL Court denied class certification in December 2008, and consequently, the cases are now being administered as a mass joinder of claims. There are approximately 4,100 lawsuits currently pending in the MDL Court. The number of cases currently pending against the Company is approximately 550. Many of these lawsuits involve multiple plaintiffs, each of whom have brought claims against the Company. A number of cases against the Company have been dismissed for various reasons, including duplicative and unmatched lawsuits and failure of plaintiffs to appear or prosecute their claims. In the event a case does not settle or is not dismissed during the MDL proceeding, it is remanded back to the original court for disposition or trial. In September 2009, the MDL Court commenced hearing both bellwether jury trials and bellwether summary jury trials. The summary jury trial process is an alternative dispute resolution method which is non-binding and confidential. The Company has participated in one confidential summary jury trial. Currently, it is unknown how many plaintiffs' claims against the Company will proceed in the MDL Court and how many claims will be dismissed. It is also unknown how many plaintiffs will continue to litigate if their case is dismissed without prejudice or remanded back to their court of origin. In July 2011, the MDL Court issued Corrected Pretrial Order No. 88 governing the plaintiff fact sheet deficiency process, the purpose of which is to provide defendants with the necessary information to evaluate claims for global settlement. Defendants, including the Company, have identified thousands of deficiencies and provided deficiency notices to plaintiffs' counsel. If a plaintiff fails to cure material deficiencies in his or her fact sheet, the defendants are authorized to file for dismissal of such claim. The Company has commenced the process of filing motions for dismissal with respect to claims of plaintiffs in cases where the plaintiff failed to cure material deficiencies in his or her fact sheet or otherwise comply with the MDL Court ordered fact sheet process. At this time, the Company is unable to provide a reasonable estimate for the range of loss in the event of an adverse outcome, beyond amounts accrued as of October 31, 2011, because the number of plaintiffs is undetermined and at this stage of the proceedings, evidence of potential damages for each plaintiff has not been introduced. A group of mobile and manufactured home defendants have agreed to pay $2,625,000 to settle certain claims that plaintiffs have allegedly been sickened by levels of formaldehyde in the manufactured homes. The Company understands that settlements have been reached with at least two of the trailer manufacturers, but the terms have not been publicly disclosed. No further updates were reported in the Company's latest SEC filing. While the Company may consider pursuing settlement of the matter given the uncertainty of litigation and the cost of defending each individual case if the MDL proceeding ends and the MDL Court remands the individual cases back to their courts of origin, it is uncertain whether the parties can agree upon a mutually acceptable resolution of the litigation. The Company strongly disputes the allegations and continues to vigorously defend the lawsuits. TRAVELERS INSURANCE: Faces Class Action Over PPO Discount --------------------------------------------------------- Nick McCann at Courthouse News Service reports that Travelers Insurance pays less for treating workers compensation patients than is required by state law, a physical therapy office claims in a federal class action. Lincoln City Physical Therapy claims Travelers paid it rates that were "discounted pursuant to a private, unregulated contract with so-called 'Preferred Provider Organizations' (or 'PPOs'). Plaintiff and members of the class seek to recover all of the discounted amounts that defendants did not pay to plaintiff and members of the class, based on defendants' application of a private contract between defendants and any PPO, which resulted in a lower payment amount than was required under Oregon workers' compensation law." Lincoln City says Travelers contracts with PPOs that allow it to apply a "PPO discount" to providers in workers' compensation cases. However, "Throughout the relevant time period, applicable Oregon workers' compensation statutes and rules did not allow workers' compensation insurers, like defendants, to apply any PPO contract discounts to the payment of workers' compensation medical fees," the complaint states. Lincoln City claims that "hundreds of medical providers statewide who provide services to injured workers' under the Oregon state workers' compensation systems have been damaged by defendants' illegal PPO discounting." A copy of the Complaint in Lincoln City Physical Therapy, LLC v. Travelers Casualty and Surety Co., et al., Case No. 11-cv-01452 (D. Ore.), is available at: http://www.courthousenews.com/2011/12/07/HealthCare.pdf The Plaintiff is represented by: Steve D. Larson, Esq. Joshua L. Ross, Esq. STOLL STOLL BERNE LOKTING & SHLACHTER P.C. 209 S.W. Oak Street, Fifth Floor Portland, OR 97204 Telephone: (503)227-1600 E-mail: slarson@stollberne.com jross@stollberne.com - and - Diana E. Godwin, Esq. LAW OFFICE OF DIANA E. GODWIN 1500 NE Irving Street Suite 370 Portland, OR 97232 Telephone: (503) 224-0019 E-mail: DianaGodwin@earthlink.net UNIFIED LIFE: Settles Medicaid Dental Insurance Class Action ------------------------------------------------------------ Ronald V. Miller, Jr., writing for Accident and Injury Lawyer Blog, reports that a settlement was reached last week in a class action lawsuit involving claims that a dental insurance policy sold to Medicaid recipients living in nursing homes was in violation of Oklahoma law. Under the $900,000 settlement agreement, the lawyer would get a third in attorneys' fees and the named plaintiff would get $10,000. Everyone else -- the 1,600 people that ostensibly got the raw deal -- would get about $21 for each month they were in the Oklahoma Medicaid program and paid their premiums for dental insurance. The case is Childs v. Unified Life Insurance Company. * Dispute Over Armenian Genocide Class Action Resolved ------------------------------------------------------ Amanda Bronstad, writing for The National Law Journal, reports that Los Angeles litigator Mark Geragos and a former co-counsel have resolved a dispute over a botched claims process in a $17.5 million class action settlement they reached on behalf of millions of descendants of Armenian genocide victims. * Sup. Ct. of Canada Set to Decide on Indirect Purchaser Issue -------------------------------------------------------------- Julius Melnitzer, writing for Financial Post, reports that the Supreme Court of Canada is poised to determine the fate and scope of antitrust class actions in Canada. On Dec. 1, 2011, the court agreed to hear appeals from the British Columbia Court of Appeal's twin decisions in Pro-Sys Consultants Ltd. v. Microsoft Corp. and Sun-Rype Products Ltd. v. Archer Daniels Midland Co. The core issue before the high court is whether indirect purchasers -- those who bought the product after the initial purchase from those involved in the anti-competitive conduct -- have a class action remedy under s. 36 of the Competition Act, which allows for a private right of action to "any person" who has suffered loss as a result of criminal misconduct under the legislation. By a 2-1 majority in each case, the Court of Appeal held that such class actions were not available to indirect purchasers. Because most antitrust class action cases originate in global conspiracy prosecutions where foreign manufacturers have fixed the prices of ingredients in products that tend to go through a long chain of distribution before they reach Canada, a ruling excluding indirect purchasers from antitrust class actions would significantly narrow the scope of such proceedings in Canada. "The harm to someone in Canada is usually indirect so excluding indirect purchasers could be a crippling development for the plaintiffs' class action bar," says Christopher Naudie of Osler, Hoskin and Harcourt LLP's Toronto office. But the Canadian jurisprudence on the subject is conflicting. Two separate panels of the British Columbia Court of Appeal have reached different conclusions on whether indirect purchasers are properly members of an antitrust class. Complicating the matter is the fact that the decisions in the Microsoft and Sun-Rype cases were not unanimous. Then, two weeks before the Supreme Court granted leave in Pro-Sys and Sun-Rype, the Quebec Court of Appeal adopted the reasoning of the minority judge in the B.C. cases and decided the case of Option Consommateurs v. Infineon Technologies in favor of indirect purchasers. "There's no question that Option Consommateurs is a plaintiff- friendly decision," says David Stolow of Davies Ward Phillips & Vineberg LLP's Montreal office. The decision took many members of the Quebec class action defense bar by surprise. "The plaintiffs' case was poorly drafted and the Court of Appeal said so," says Sylvain Lussier of Osler's Montreal office. "So the decision was a little unnerving." In any event, most observers expect to see an application for leave to appeal in the Quebec case. "In light of the Supreme Court having granted leave in the B.C. cases, I don't see them refusing leave in the Quebec case," Mr. Lussier says. However that may be, the majority rulings in Pro-Sys and Sun-Rype that will be before the Supreme Court adopt the long-standing position of the U.S. Supreme Court against the inclusion of indirect purchasers as expressed in Illinois Brick Co. v. Illinois, decided in 1977. But they seem inconsistent with the November 2010 decision of a different panel of the B.C. Court of Appeal in the case of Pro-Sys Consultants Ltd. v. Infineon Technologies AG and various Ontario Superior Court decisions including the 2009 ruling in the case of Irving Paper Limited v. Atofina Chemicals Inc., all of which certified actions that included indirect purchasers. The British Columbia and Quebec cases centre on DRAM, a semiconductor memory product found in most electronic devices. All the defendants in the DRAM cases save one pleaded guilty to charges under the U.S. Sherman Antitrust Act and received substantial fines before the Canadian civil actions began. Although there is an outstanding DRAM class action in Ontario, no date has yet been set for the certification hearing. While it is of course difficult to predict the outcome in the Supreme Court, it may be noteworthy that the court denied leave to appeal from the B.C. Court of Appeal's initial DRAM decision in favor of indirect purchasers in Pro-Sys Consultants v. Infineon Technologies. "However the Supreme Court rules, a decision that settles the indirect purchaser issue in Canada will be a lot of help to plaintiffs' and defendants' counsel alike," Mr. Lussier says. ********* 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 * * *