/raid1/www/Hosts/bankrupt/CAR

/raid1/www/Hosts/bankrupt/CAR_Public/120117.mbx C L A S S A C T I O N R E P O R T E R Tuesday, January 17, 2012, Vol. 14, No. 12 Headlines AMERICAN HONDA: 9th Cir. Tosses Class Action Over Brake System BANK OF AMERICA: Accused of Engaging in Wireless Spam Ads BIG LOTS: Recalls 43,700 5-Light Floor Lamps Due to Shock Hazard BLUEBONNET ELECTRIC: Class Action Over 2009 Wildfire Ongoing CASEY'S: Nokomis Gets Check From Class Action Settlement CINGULAR WIRELESS: Seeks Dismissal of AT&T Merger Class Action COMCAST CORP: Judge Grants in Part Bid to Dismiss Class Action EBAY INC: Judge Tosses Coin-Grading Price-Fixing Class Action KAZ USA: Recalls 19,000 Honeywell Portable Electric Heaters MORGAN STANLEY: Faces Antitrust Class Action in New York MORTON'S RESTAURANT: Sued Over Proposed Acquisition by Fertitta PLAIN DEALER: Homeowner Files Class Action Over "PDWrapUp" QUALITY TRANSPORT: Set to File Class Action Over 40-Car Pileup QUEST DIAGNOSTICS: Sanford Wittels & Heisler Files Class Action STATE OF ARIZONA: Sued Over Reduced Retirement Benefits T-MOBILE: Mills Law Firm Files Class Action Over ZIP Codes THOMSON CRUISES: Faces Class Action Over Poor Hygiene at Ships WALGREEN CO: Faces Class Action Over Expensive Generic Drugs ********* AMERICAN HONDA: 9th Cir. Tosses Class Action Over Brake System -------------------------------------------------------------- Jonathan Stempel, writing for Reuters, reports that American Honda Motor Co won a legal victory as a divided U.S. appeals court on Jan. 12 said a nationwide lawsuit over a brake system used in some Acura RL vehicles should not have been certified as a class- action. The 2-1 decision by the 9th U.S. Circuit Court of Appeals in Pasadena, California, is a fresh setback for consumers, who have seen their ability to sue collectively curtailed after a U.S. Supreme Court ruling last June in favor of Wal-Mart Stores Inc that narrowed class-action litigation. The 9th Circuit said a Los Angeles district court judge erred in finding that California's tough consumer protection laws should apply to a nationwide class of consumers who bought or leased Acura RLs equipped with the optional Collision Mitigation Braking System from August 17, 2005 to December 16, 2008. It also said the lower court wrongly found that consumers could have relied on advertising by American Honda about the system, part of a $4,000 technology package. Lawyers for the roughly 2,000 plaintiffs did not immediately respond to requests for comment. American Honda, which is part of Japan's Honda Motor Co Ltd, had no immediate comment. The brake system was designed to warn Acura RL drivers with an alarm and flashing indicator that a crash may be imminent, and tighten seat belts and apply brakes automatically if a frontal crash appeared unavoidable. But drivers claimed that the system might deploy or fail to warn too slowly, and would shut off in bad weather. The lower court found enough in common among the claims to certify a class. It also said American Honda failed to show why other states' laws should prevail, even though the purchases and leases took place in 44 U.S. states. But writing for the 9th Circuit majority, Judge Ronald Gould said it was unfair to apply California law everywhere. Judge Gould said other states had strong interests in regulating similar transactions, often under materially different consumer protection laws. He also said there were no "common issues of fact" because drivers nationwide could not have relied on Honda's "small scale" advertising for the brake system. Circuit Judge Dorothy Nelson dissented, citing California's "compelling interest" in regulating the conduct of American Honda, which has headquarters in Torrance, California. The 9th Circuit returned the case to the Los Angeles district court for further proceedings. Judge Gould and U.S. District Judge James Gwin, who normally works in Cleveland, comprised the majority. Both were appointed to the bench by President Bill Clinton. Judge Nelson was appointed by President Jimmy Carter. The case is Mazza et al v. American Honda Motor Co, 9th U.S. Circuit Court of Appeals, No. 09-55376. BANK OF AMERICA: Accused of Engaging in Wireless Spam Ads --------------------------------------------------------- Ron Sager, individually and on behalf of a class of similarly situated individuals v. Bank of America Corporation, a Delaware corporation, Soundbite Communications, Inc., a Delaware corporation, Case No. 5:12-cv-00197 (N.D. Calif., January 11, 2012) is brought to stop the Defendants' alleged practice of making unsolicited text message calls to cellular telephones, and to obtain redress for all persons injured by their conduct. In an effort to promote its banking services, Bank of America engaged Soundbite to conduct an especially pernicious form of solicitation: the transmission of unauthorized advertisements, in the form of "text message" calls to the cellular telephones of consumers throughout the nation, Mr. Sager alleges. He argues that by effectuating these unauthorized text message calls, known as "wireless spam," the Defendants have caused consumers actual harm, not only because consumers were subjected to the aggravation that necessarily accompanies wireless spam, but also because consumers frequently have to pay their cell phone service providers for the receipt of the wireless spam. Mr. Sager is a citizen of Illinois. Bank of America, a Delaware corporation, is a global banking concern that markets and sells various financial products and services to consumers throughout the United Slates. Soundbite, a Delaware corporation, is a self-described "global leader in on- demand, multi-channel communications," and is a mobile marketing company with customers throughout the United States. The Plaintiff is represented by: David C. Parisi, Esq. Suzanne Havens Beckman, Esq. PARISI & HAVENS, LLP 15233 Valleyheart Drive Sherman Oaks, CA 91403 Telephone: (818) 990-1299 E-mail: dcparisi@parisihavens.com shavens@parisihavens.com - and - Sean P. Reis, Esq. EDELSON MCGUIRE, LLP 30021 Tomas Street, Suite 300 Rancho Santa Margarita, CA 92688 Telephone: (949) 459-2124 Facsimile: (949) 459-2123 E-mail: sreis@edelson.com BIG LOTS: Recalls 43,700 5-Light Floor Lamps Due to Shock Hazard ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Big Lots, of Columbus, Ohio, announced a voluntary recall of about 43,700 Five-Light Floor Lamps. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The wiring for the lamp's light sockets can become exposed, posing a risk of electric shock to consumers. In addition, use of the recommended standard 40 watt light bulbs can generate excessive heat, which can melt the double plastic shades over the bulbs. The firm has received four reports of melting lamp shades. No injuries have been reported. This recall involves Classic Quarters Five Light Floor Lamps. The lamps stand about five feet tall and have a gunmetal or chrome colored metal pole and five adjustable lights mounted on flexible metal tubes at the top. Dark plastic or multi-colored double plastic shades cover each of the five lights. Recalled lamps use standard incandescent or CFL bulbs and have labels marked with the model number "G-1843-5" affixed to the underside of the lamp base. These lamps can be further identified by SKU numbers 612007239, 612007829 or 612008982 at the beginning of the instructions. Lamps that use candelabra bulbs are not subject to this recall and can be identified by labels marked with the model number "G-1844- 5B" and SKU numbers 612009036 or 612009037 in the instructions. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12086.html The recalled products were manufactured in China and sold exclusively at Big Lots stores nationwide from April 2010 through November 2011 for between $30 and $50. Consumers should immediately stop using the lamps and return them to a Big Lots store for a full refund. For additional information, contact Big Lots toll-free at (866) 244-5687 between 9:00 a.m. and 5:00 p.m. Eastern Time Monday through Friday, or visit the firm's Web site at http://www.biglots.com/ BLUEBONNET ELECTRIC: Class Action Over 2009 Wildfire Ongoing ------------------------------------------------------------ Paul Foster, writing for YNN, reports that testimony continued in Bastrop on Jan. 12 in the class-action lawsuit against Bluebonnet Electric Co-op and McCoy Tree Surgery. The plaintiffs in the case, more than two dozen Bastrop residents, are seeking $6 million from the utility after a 2009 wildfire, according to the Bastrop Advertiser. They say that negligence on the part of Bluebonnet Electric led to the downed power line which started the blaze. The wildfire burned about 1,200 acres and destroyed 28 homes. On Jan. 11, the court heard from crew supervisor Tim Grimm, a lineman with Bluebonnet Electric, who was among the first to find the downed line. The self-admittedly nervous witness described in detail the scene at Camp Wilderness Ridge, where the fire began. Mr. Grimm said he found power lines damaged in more than one place, with the most significant damage between what the courtroom called poles "4" and "5." All wires between poles 4 and 5 were down and showed evidence of potential fire-starting behavior. Across the easement laid a large tree which Mr. Grimm said had fallen. Answering to defense attorney Tab Keener, Mr. Grimm concluded that the power lines were knocked down by "the tremendous force from the tree fall." When asked if he was confident that the tree caused the downed lines, the 23-year veteran with Bluebonnet Electric said he was sure. "There's no doubt in my mind," Mr. Grimm said. Photographs were showed as evidence in the case, including one of Mr. Grimm measuring the distance between the fallen tree's trunk and centerline of the easement. The distance was reported at about 16 feet, placing the tree outside of the 10-foot easement which the utility is responsible for maintaining. Mr. Grimm called it an "emergency situation." "There was fire, smoke, people around," Mr. Grimm said. "It was awesome, awesome in a bad way." Answering another defense attorney, Mr. Grimm said that the easement in that area was "clean" leading up to the fire, but when pressed by Roger Rider, an attorney for the plaintiffs, Mr. Grimm could not recall the last time that he had been in the area before the blaze. Mr. Grimm was the third witness questioned in the case with many more slated to take the stand. The case is expected to last several weeks. Bluebonnet Electric is also a defendant in a class-action lawsuit stemming from the 2011 Labor Day weekend wildfires which destroyed more than 1,600 homes in Bastrop County. CASEY'S: Nokomis Gets Check From Class Action Settlement -------------------------------------------------------- Steve McLaughlin, writing for The Journal-News, reports that the Nokomis City Council met on Jan. 9 with all members present. Commissioner Michael Guidish reported that the city received a check for $56,376 as the result of a nationwide class action suit which had been settled. The lawsuit was in regard to MTBE, an octane enhancer added to gasoline, which found its way into sources of drinking water after having leaked from underground storage tanks. Judy Beaman and Jo Ann Keele addressed the council on behalf of the chamber of commerce. The group is responsible for the downtown Christmas light display and would like to purchase more lights for next year. They plan to ask other civic/fraternal organizations for assistance in purchasing eight additional snowflake lights that cost $250 each. Council members complimented the group for their efforts this year and approved the request for $250 to purchase new lights. Mayor Keith Hancock noted that employees who operate city vehicles have been using a Casey's General Store credit card to charge gas in the past. He stated that Casey's has offered a nickel per gallon discount for future purchases. A representative of the Illinois Environmental Protection Agency has taken samples from the new well that was recently drilled. The results of those tests should be complete within the next two weeks and the well will go on line shortly thereafter. The merry-go-round at Fred B. Johnson Park will get a make-over thanks to the help of T. J. Graden, owner of the Haldane Custom Paint and Body shop in Forreston. Mr. Graden, a former resident of Nokomis, has offered to dismantle the merry-go-round, take it to his body shop, and restore it to its original condition free of charge. The city will advertise for part-time help at city hall following the departure of Angela Ginnard. The successful candidate should be able to demonstrate basic bookkeeping, accounting, and computer skills and pay will be commensurate with experience. During the course of the meeting, the council noted and/or approved the following: * Revenues were received from income tax, $12,002 and Ameren Illinois, $7,877 * Monthly bills were approved totaling $32,948 * A fencing project at Shane Cole Park is nearly complete CINGULAR WIRELESS: Seeks Dismissal of AT&T Merger Class Action -------------------------------------------------------------- June Williams at Courthouse News Service reports that Cingular Wireless urged the United States Court of Appeals for the Ninth Circuit to reject a class action that alleges adverse effects from its merger with AT&T Wireless, arguing that customers must arbitrate their claims individually. Two years after AT&T merged with Cingular in 2006, Washington state customers filed a class action, claiming breach of contract, fraud and violation of the state Consumer Protection Act. The complaint claims that Cingular intentionally degraded AT&T's wireless network after the merger to force customers into choosing between a more expensive Cingular plan and an early termination fee. U.S. District Court Judge Ricardo Martinez denied AT&T's motion to compel arbitration in 2009, calling the arbitration provisions in the carrier's contract "substantively unconscionable" and unenforceable under Washington law. But that decision came into question in April 2011 after the U.S. Supreme Court upended a similar case involving AT&T's arbitration contracts, Concepcion v. AT&T Corp. In that case, a sharply divided court said the Federal Arbitration Act pre-empts state laws that prohibit contracts from disallowing class action lawsuits. As the appeal for the Cingular case came before the 9th Circuit on Jan. 9, an attorney for the carriers emphasized the precedence of Concepcion. Concepcion means a "death knell" for state laws that declare arbitration agreements unenforceable because they bar class actions, Mayer Brown attorney Evan Tager told the three-judge panel. Judge Raymond Fisher said the carriers could "achieve half a victory" with the Supreme Court ruling, noting that consumers still have a procedural means to attack an contract bar on class actions. He asked if Washington law recognizes substantive and procedural unconscionability. Frank Bland Jr., counsel for the consumers, cited a Washington appeals court decision that said procedural unconscionability was enough to strike down a contract. He added, however, that the state Supreme Court has not weighed in on the issue. Judge Susan Graber said the court would have to remand the consumers' case if it found that Concepcion "deals with substantive unconscionability only." Claiming that Concepcion addressed the identical clause as the present case, Mr. Bland urged the court to look at other parts of the contract to determine if it is unconscionable. Mr. Trager said Concepcion clearly applied. "The bottom line is they are asking you to create a split with four other Courts of Appeal and disregard the decisions of 17 district judges within this circuit." COMCAST CORP: Judge Grants in Part Bid to Dismiss Class Action -------------------------------------------------------------- Nick McCann at Courthouse News Service reports that a federal judge has dismissed most of a class action that claims Comcast markets and sells service plans without disclosing additional equipment fees. Lead plaintiff Athanassios Diacakis said Comcast offered him numerous deals over the phone, including a Triple Play package that bundles cable, phone and Internet services, without mentioning the additional fee to lease a modem. Mr. Diacakis filed a class action in June, claiming Comcast violated California's consumer, unfair-competition and false- advertising laws. U.S. District Judge Saundra Brown Armstrong agreed to dismiss most claims on Jan. 9. Though she declined to determine whether Comcast's actions were misleading, she found the lead plaintiff's claims were not particular enough "to pass muster." "The [amended complaint] fails to specify when or where Comcast advertisements were viewed, the content of those advertisements, or which of them in particular Plaintiff relied upon," Judge Armstrong wrote. Mr. Diacakis can try his unfair-competition and false-advertising claims again in an amended complaint. A copy of the Order Granting in Part and Denying in Part Defendant's Motion to Dismiss Plaintiff's First Amended Complaint in Diacakis v. Comcast Corporation, et al., Case No. 11-cv-03002 (N.D. Calif.), is available at http://is.gd/bsd6Fa EBAY INC: Judge Tosses Coin-Grading Price-Fixing Class Action ------------------------------------------------------------- Chris Marshall at Courthouse News Service reports that a federal judge has tossed a class action against eBay, finding that it would not make economic sense for the auction site to run a price- fixing conspiracy on coin-grading services. The class took issue with a certification policy enacted by the Internet Rules Committee, a working group of "coin industry insiders." EBay allegedly worked with the group to create a certification policy for coins sold on its Web site, with a stated goal of combating misrepresented and counterfeit listings. The resulting certification policy allows only coins graded by one of five authorized services to be listed as "certified." Universal Grading Service claimed that eBay worked with five certified coin-grading services to limit the number of authorized graders, thus artificially increasing the prices of grading services. When coin sellers passed those costs to coin buyers, eBay allegedly saw higher commissions. The complaint sought damages from coin dealers Vadim Kirichenko and Joseph Kimoto, on behalf of a class of grading companies not certified by eBay, consumers who bought coins certified by eBay and other related groups. By accusing smaller outfits of selling counterfeit coins and fraud, eBay hampered Universal Grading's ability to participate in the "then burgeoning online market for certified coins," according to the complaint. Dealers that had their coins graded by Universal Grading allegedly received e-mails from eBay with the subject line "eBay Listing Removed: Counterfeit Currency and Stamps." But U.S. Judge Ronald Whyte ruled on Jan. 9 that the allegations in the fourth amended complaint, like those in earlier iterations, failed to state a conspiracy claim under the Sherman Act because the scheme "does not make economic sense." Even if the alleged convoluted conspiracy drove profit, eBay has proven that it can raise commissions without losing users. Thus, it would be "far easier and more efficient for eBay to simply raise its fees for the sale of coins than to conspire with unrelated non-profit trade groups to develop a policy that might result in higher commissions," Judge Whyte wrote. The complaint also undermines the class's theory, as only 0.3 percent of the coins listed on eBay are certified. This means that commissions have declined on 99.7 percent of coins whose sale prices decreased under the certification policy. "An already improbable conspiracy" is not made plausible when the complaint "suggests that the perpetrator has lost money as a result of the agreement," the 17-page decision states. Competitive justifications, including the aim of reducing fraudulent listings, add further support to eBay's policy. Rather than assailing eBay, the class should aim their gripes at the survey that resulted in the certification policy, which was commissioned by the Professional Numismatists Guild and American Numismatic Association. The court notes that said survey simply relied on what it believed to be the conclusions of industry experts. The guild and its chairman, Barry Stuppler, already settled with the plaintiffs. The class's "novel" theory that it need not establish harm in the monopolized market because it is a consumer and not a competitor "stretches the concept of antitrust injury too far," Judge Whyte added, noting that Section 2 of the Sherman Act states that a defendant must compete in the affected market to be liable for inflicting antitrust injury. Since the class had four opportunities to amend its complaint over several years and has been thus far unable to survive dismissal motions, Judge Whyte dismissed its remaining claims with prejudice. A copy of the Order Granting Motion to Dismiss with Prejudice in Universal Grading Service, et al. v. eBay, Inc., Case No. 09-cv- 02755 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/01/12/509-cv-02755.pdf KAZ USA: Recalls 19,000 Honeywell Portable Electric Heaters ----------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with distributor, Kaz USA Inc., of Southborough, Massachusetts, and manufacturer, Ningbo SMAL Electrics Co. Ltd., of China, announced a voluntary recall of about 19,000 Honeywell Surround Select Portable Electric Heaters. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The heater's internal housing, including the fan, heating element and circuitry, can detach, posing a burn hazard to consumers. No incidents or injuries have been reported. This recall includes Honeywell Surround Select Series portable electric heaters with model numbers HZ-420, HZ-430, and HZ-440 and five-digit date codes that have 11 as the last two digits. The heaters are black or white cylinders with a handle on top. The model number is stamped into the plastic on the bottom of the heater. The date code is located on the metal prongs of the heater's electrical plug. "Honeywell" and "Surround Heat" are printed on the front of the heaters. This heater was distributed by Kaz USA under license from Honeywell. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12087.html The recalled products were manufactured in China and sold at Best Buy, Meijer and Walmart stores nationwide from July 2011 through December 2011 for between $50 and $70. Consumers should immediately unplug and stop using the heaters and contact Kaz for a full refund. For additional information, contact Kaz at (800) 370-8137 from 8:30 a.m. to 5:00 p.m. Eastern Time Monday through Friday, or visit the firm's Web site at http://www.kaz.com/recall/ MORGAN STANLEY: Faces Antitrust Class Action in New York -------------------------------------------------------- Jonathan Perlow at Courthouse News Service reports that Morgan Stanley and KeySpan Corp., New York City's largest electricity vendor, face an antitrust class action accusing them of withholding electricity from the market to goose prices to the tune of $300 million. Plaintiffs Alfred Konefsky and Martha McCluskey, both professors at the University at Buffalo Law School, claim KeySpan and Morgan Stanley Capital Group cut an illegal deal to inflate prices. According to the federal complaint, on Jan. 18, 2008, KeySpan and Morgan Stanley "executed an agreement (the 'Morgan/KeySpan Swap') that ensured that KeySpan would withhold substantial output from the New York City electricity generating capacity market, a market that was created to ensure the supply of sufficient generation capacity for New York City consumers of electricity, and in turn reduce capacity supply to be included in statewide capacity market demand curve auctions (the statewide area is referred to as the 'New York Control Area' or 'NYCA'). The likely effect of the Morgan/KeySpan Swap was increased capacity prices for retail electricity suppliers who purchased capacity, and, in turn, pass increase supply prices directly to consumers who pay for electricity in New York City and New York State. For its part, Morgan Stanley obtained a $21 million profit payment in connection with the Morgan/KeySpan Swap, while incurring no substantial expense, advancing no funds and taking no risk in such transaction." Sellers of retail electricity in York City must purchase a product from generators known as "installed capacity," which was created by the New York Independent System Operator (NYISO) to ensure sufficient generation capacity to meet expected demand. "Between 2003 and 2006, KeySpan, the largest seller of electricity generating capacity ('installed capacity') in the New York City market (the 'NYC Capacity Market') earned substantial revenues due to tight supply conditions. Because purchasers of capacity required almost all of KeySpan's output to meet expected demand, KeySpan's ability to set price levels was limited only by a regulatory ceiling (called a 'bid cap'). Indeed, the market price for capacity was consistently at or near KeySpan's bid cap," according to the complaint. But market conditions were about to change, as two new large electricity generating plants came online in 2006, breaking the capacity shortage that had kept prices at the capped levels, the plaintiffs say. The professor plaintiffs say KeySpan could prevent the new capacity from reducing prices by withholding a substantial amount of its own capacity from the market, which it weighed against the option of competitive bidding. "KeySpan searched for a way to avoid the revenue decline from bidding its cap and the revenue risks of competitive bidding," the complaint states. "It decided to enter an agreement that gave it a financial interest in the capacity of Astoria Generating Company ('Astoria') -- KeySpan's largest competitor. By providing KeySpan with revenues from a larger base of sales, such an agreement would make a 'bid the cap' strategy more profitable than a successful competitive bid strategy. Rather than directly approach its competitor, KeySpan turned to Morgan Stanley to act as the counterparty to the agreement -- the Morgan/KeySpan Swap -- recognizing that Morgan Stanley would, and in fact did, enter into an offsetting agreement with Astoria (the 'Morgan/Astoria Hedge). "With KeySpan deriving revenues from both its own and Astoria's capacity, the Morgan/KeySpan Swap eliminated any incentive for KeySpan to bid competitively, enabling KeySpan to bid the cap on its capacity. Capacity prices remained as high as if no new capacity had entered into the New York City Market." The plaintiffs estimate the defendants inflated electricity capacity prices in the New York City area by $200 million and in the rest of the state by $100 million, while reaping $63 million in illegal gains for themselves. They seek disgorgement, penalties and treble damages for attempted monopoly violations of the Sherman Act, unjust enrichment, and violations of New York business law. A copy of the Complaint in Konefsky, et al. v. KeySpan Corporation, et al., Case No. 12-cv-00017 (W.D.N.Y.), is available at: http://www.courthousenews.com/2012/01/12/KeySpan.pdf The Plaintiffs are represented by: Lawrence J. Vilardo, Esq. Randall D. White, Esq. CONNORS & VILARDO LLP 1000 Liberty Building 424 Main Street Buffalo, NY 14202 Telephone: (716) 852-5533 E-mail: ljv@com1ors-vilardo.com rdw@connors-vilardo.com - and - Judith L. Spanier, Esq. Karin Fisch, Esq. Natalie S. Marcus, Esq. ABBEY SPANIER RODD & ABRAMS LLP 212 East 39th Street New York, NY 10016 Telephone: (212) 889-3700 E-mail: jspanier@abbeyspanier.com kfisch@abbeyspanier.com nmarcus@abbeyspanier.com - and - Daniel J. Sponseller, Esq. LAW OFFICE OF DANIEL J. SPONSELLER 409 Broad Street, Suite 200 Sewickley, PA 15143 E-mail: dsponseller@sponsellerlawfirm.com Telephone: (412) 741-4422 MORTON'S RESTAURANT: Sued Over Proposed Acquisition by Fertitta --------------------------------------------------------------- David Olson, on behalf of himself and all others similarly situated v. Morton's Restaurant Group, Inc., John K. Castle, Christopher J. Artinian, William C. Anton, Dr. John J. Connolly, Robert A. Goldschmidt, Stephen E. Paul, David B. Pittaway, Dianne H. Russell, Zane Tankel, Alan A. Teran, Fertitta Morton's Restaurants, Inc., Fertitta Morton's Acquisition, Inc., Fertitta Entertainment, Inc., and Claim Jumper Acquisition Company, LLC, Case No. 2012-CH-00994 (Ill. Cir. Ct., Cook Cty., January 11, 2012), which is brought on behalf of holders of Morton's Series A Convertible Preferred Stock, is for breach of contract and for breaches of fiduciary duties in conjunction with the announcement on December 23, 2011, of the notice of redemption of the Preferred Stock by the Company. The December Notice advises holders of the Preferred Shares that on January 23, 2012, Morton's will redeem all 1,200,000 issued and outstanding Preferred Shares for $5 a share. Based on the Fertitta Purchaser's offer of $6.90 a share for each outstanding share of common stock, if the Proposed Redemption takes place, the holders of the Preferred Shares will suffer a loss of at least $1.90 a share, Mr. Olson contends. He argues that the Proposed Redemption is in violation of the terms of the Certificate of Designations filed by Morton's with the Securities and Exchange Commission on February 24, 2010, which clearly contemplates an adjustment to the Preferred Shares for a merger or reorganization. He seeks to enjoin the Proposed Redemption or, alternatively, to recover damages in the event that the Proposed Redemption is consummated because the consideration offered to holders of the Preferred Shares is unfair and inadequate. Mr. Olson is a holder of Preferred Shares of Morton's. He received the Preferred Shares as part of the settlement of a nationwide class action lawsuit brought against Morton's by its employees relating to a claim that Morton's was required to pay the full minimum wage to all employees nationwide for whom it had taken the "tip credit" against the minimum wage. Morton's, a Delaware corporation, owns and operates upscale steakhouse restaurants. The Individual Defendants are officers and directors of the Company. Fertitta Morton's is a Delaware corporation and is a newly-formed holding company of Defendant CJAC and an indirect wholly-owned subsidiary of FBI. Fertitta Morton's Acquisition is a Delaware corporation and a wholly owned subsidiary of Fertitta Morton's. FEI is a Texas corporation, while CJAC is a Nevada limited liability company. The Plaintiff is represented by: James R. Rowe, Esq. THE LAW FIRM OF ROWE & ASSOCIATES 100 North LaSalle Street, Suite 1010 Chicago, IL 60602 Telephone: (312) 345-1357 Facsimile: (312) 896-0212 E-mail: jamesrowe@rowelegal.com - and - Jason L. Brodsky, Esq. Evan J. Smith, Esq. Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 602 Bala Cynwyd, PA 19004 Telephone: (610) 667-6200 E-mail: jbrodsky@brodsky-smith.com esmith@brodsky-smith.com mackerman@brodsky-smith.com PLAIN DEALER: Homeowner Files Class Action Over "PDWrapUp" ---------------------------------------------------------- Courthouse News Service reports that an irate homeowner filed a class action claiming the Plain Dealer trespasses upon his property every Sunday by throwing an unwanted "PDWrapUp" onto it, in a "nonbiogradable plastic bag that creates a choking and/or suffocation hazard". A copy of the Complaint in Reddy v. The Plain Dealer Publishing Co., Case No. 12773256 (Ohio C.P. Ct., Cuyahoga Cty.) (Mason, J.), is available at: http://www.courthousenews.com/2012/01/12/PressTrespass.pdf The Plaintiff is represented by: Mary C. Sotera, Esq. WESTON HURD LLP The Tower at Erieview 1301 East 9th Street, Suite 1900 Cleveland, OH 44114 Telephone: (216) 241-6602 E-mail: MSotera@westonhurd.com - and - Michael A. Dolan, Esq. THE DOLAN LAW FIRM LLC 3890 Rocky River Drive, Ste. 1S Cleveland, OH 44111 Telephone: (216) 780-3036 E-mail: mdolan3@att.net QUALITY TRANSPORT: Set to File Class Action Over 40-Car Pileup -------------------------------------------------------------- Kyle Barnett, writing for The Louisiana Record, reports that a transportation company has begun the process of filing a class- action lawsuit for damages suffered in a 40-car pileup on Interstate 10 last month. Quality Transport filed a discovery suit on Jan. 3 in the Orleans Parish Civil District Court on behalf of itself the other 40 unknown drivers. The plaintiff states that it intends to bring forth a lawsuit once other drivers have been identified. The discovery action described in the filing seeks to obtain and preserve media, film, digital images, raw footage, aerial photos, still photos and news clips related to the crash. The request states that the plaintiff expects to find the cause of the accident and the identity of the other drivers and witnesses of the accident by surveying the requested materials. Quality Transport is being represented by Marc J. Yellin of New Orleans-based Deutsch, Kerrigan and Stiles. The case has been assigned to Division L Judge Kern A. Reese. Case number 12-00005 Marc J. Yellin, Esq. can be reached at: Marc J. Yellin, Esq. DEUTSCH, KERRIGAN AND STILES 755 Magazine Street New Orleans, LA 70130 Telephone: (504) 581-5141 E-mail: myellin@dkslaw.com QUEST DIAGNOSTICS: Sanford Wittels & Heisler Files Class Action --------------------------------------------------------------- Attorneys at Sanford Wittels & Heisler on Jan. 12 filed a $100 million gender discrimination employment class action complaint against Quest Diagnostics, Inc. and AmeriPath, Inc., (collectively known as "Quest") in U.S. District Court for the District of New Jersey. The complaint details the systemic discriminatory treatment of female sales representatives company-wide by the self-proclaimed "world leader in diagnostic testing, information and services." "Although Quest boasts about its dedication to delivering quality care down to the molecular level, the company falls woefully short of devoting similar attention to extending equal employment opportunities to its female sales reps," said David Sanford, the plaintiffs' lead attorney. "Quest has known or should have known that its business practices have an illegal disparate impact on women, employees with family responsibilities and pregnant employees. However, it has consistently failed to adopt measures to rectify this pervasive discrimination that its discriminatory policies, practices and procedures creates." Indiana resident Erin Beery and Florida resident Heather Traeger, both of them current Quest employees in the AmeriPath division, filed the suit on behalf of themselves and a class of similarly- situated sales reps employed from February 17, 2010 to the present. Ms. Beery is an Executive Territory Manager in Quest's Anatomical Pathology Sales Division in Indianapolis; Ms. Traeger is Senior Executive Territory Manager in the Anatomical Pathology Sales Division in Bradenton. The complaint details a wide range of discriminatory practices in the selection, promotion and advancement of sales reps at Quest Diagnostics and AmeriPath, including discrimination on the basis of pregnancy and caretaking responsibilities in violation of Title VII of the Civil Rights Act of 1964 and other federal statutes. In addition, both of the named plaintiffs in the case have individual claims of disparate pay, differential treatment, gender hostility, the creation of a hostile work environment and retaliation in the workplace affecting them in violation of Title VII of the Civil Rights Act of 1964 and other federal statutes. According to Ms. Beery and Ms. Traeger, high ranking company officials within Quest's predominately-male management team foster an environment detrimental to the success and advancement of female employees. They describe "old boys' club" attitudes that pervade the enterprise, including forcing women to work under less favorable circumstances than their male counterparts and denying them the educational and job advancement opportunities afforded men in similar positions. "There is no question that male employees and, in some cases, women without primary childcare responsibilities, have advanced and continue to advance more rapidly to better and higher-paying jobs at Quest," said Sharon Y. Eubanks, a member of the plaintiffs' legal team. "The managers who are maintaining and promoting the current male-dominated management structure have a disproportionate impact on the promotion and compensation decisions that affect female sales reps." The complaint asserts that Quest's policies do not provide sufficient oversight or safety measures to protect women from intentional and overt discrimination of even facially-neutral policies, so that female employees discriminated against have no recourse within the company. It cites an absence of internal incentives or disciplinary measures to ensure company executives and managers comply with company discrimination policies and equal employment laws. The filing also asserts that a significant number of the women who work for Quest have been and are affected by the same discriminatory employment policies, practices and procedures to which Ms. Beery and Ms. Traeger were subjected, justifying the certification of the class. Ms. Beery and Ms. Trager seek declaratory and injunctive relief, backpay; front pay; compensatory, nominal and punitive damages; and attorneys fees and legal expenses for themselves and the class. New Jersey based Quest is one of the largest companies in the U.S. It is currently ranked at 320 on the Fortune 500, reporting revenue of $7.4 billion and employing 42,000 workers in 2011. About Sanford Wittels & Heisler, LLP Sanford Wittels & Heisler is a law firm with offices in Washington, D.C., New York, and San Francisco that specializes in qui tam, employment discrimination, wage and hour, consumer and complex corporate class action litigation and has represented thousands of individuals in major class action cases in the United States. The firm also represents individual clients in employment, employment discrimination, sexual harassment, whistleblower, public accommodations, commercial, medical malpractice, and personal injury matters. In May 2010, the firm secured the largest jury award in the U.S. in a gender discrimination class action in an employment case when a jury returned a verdict of $253 million in compensatory and punitive damages against Novartis Pharmaceuticals Corporation. For more information, contact Sanford Wittels & Heisler at (202) 742-7777. For more information, contact Jamie Moss, newsPRos, 201-788 0142, jamie@newspros.com David Sanford can be reached at: David Sanford, Esq. SANFORD WITTELS & HEISLER 1666 Connecticut Avenue NW, Suite 300 Washington, DC 20009 Telephone: (202) 742-7780 E-mail: dsanford@swhlegal.com Sharon Y. Eubanks can be reached at: Sharon Y. Eubanks, Esq. HOLLAND & KNIGHT 2099 Pennsylvania Avenue, N.W., Suite 100 Washington, DC 20006 Telephone: (202) 457-7013 STATE OF ARIZONA: Sued Over Reduced Retirement Benefits ------------------------------------------------------- Courthouse News Service reports that retired law enforcement officers say in a class action that Arizona's Public Safety Personnel Retirement System illegally reduced their benefits. A copy of the Complaint in Rappleyea, et al. v. The Public Safety Personnel Retirement System, et al., Case No. CV2012-000404 (Ariz. Super. Ct., Maricopa Cty.), is available at: http://www.courthousenews.com/2012/01/12/AzPensions.pdf The Plaintiffs are represented by: Robert E. Yen, Esq. Caroline A. Pilch, Esq. YEN PILCH KOMADINA & FLEMMING, P.C. 6017 N. 15th Street Phoenix, AZ 85014 Telephone: (602) 241-0474 E-mail: ven@vpklaw.com pilch@vpklaw.com T-MOBILE: Mills Law Firm Files Class Action Over ZIP Codes ---------------------------------------------------------- Richard Halstead, writing for Marin Independent Journal, reports that a San Rafael law firm filed a class-action lawsuit in Marin Superior Court last week against T-Mobile, alleging the German cellphone company's U.S. subsidiary violated California law by requiring its customers to supply their ZIP codes in credit card purchases. The Mills Law Firm of San Rafael sued T-Mobile on behalf of Edward Pringle, a San Francisco resident. Mr. Pringle could not be reached for comment. "He would rather not speak to the press," said Josh Boxer of Tiburon, lead attorney in the case. A spokeswoman for T-Mobile said the company does not comment on pending litigation. According to the suit, Mr. Pringle purchased goods at T-Mobile's retail store at the Northgate mall in San Rafael on Nov. 4, 2011 and was required "as a condition of using credit card payment for said goods" to enter his ZIP code into T-Mobile's electronic keypad. The suit states, "At no time did the T-Mobile cashier advise Plaintiff that his personal identification information was not required." The number of class-action suits based on similar allegations have skyrocketed since the California Supreme Court ruled in February 2011 that a ZIP code is considered "personal identification information" under the California Song-Beverly Credit Card Act of 1971. That law made it illegal for retailers -- although there is a special exemption for gas stations -- to request and record a customer's "personal identification" information during a credit card transaction. The law imposed a penalty of up to $250 for the first violation and up to $1,000 for each subsequent violation. Ken McEldowney, executive director of Consumer Action, a San Francisco-based national consumer advocacy organization, said the collection of ZIP codes is a back-door way for businesses to get their customers' addresses. "It's another area in which people's privacy has been eroded," Mr. McEldowney said. "Why should you have to provide a ZIP code in order to buy something unless it's being delivered?" Mr. Boxer said once a retailer has a customer's ZIP code number and credit card information, "It is very easy to get their home address, phone number and other personal identifying information, and that information can be sold to third parties or used for marketing purposes -- all purposes the statute was designed to prevent." Last year's Supreme Court ruling came in a case involving Williams-Sonoma and reversed two lower-court opinions. Since that decision, which the Supreme Court said would apply retroactively, class-action suits have been filed against Target, Wal-Mart, Victoria's Secret, Old Navy LLC, Macy's and more than a dozen other retailers. "There was a sort of a sea change last year with many retailers realizing that their conduct was now prohibited by California law," Mr. Boxer said. "Just about everybody has wised up that it's improper; but T-Mobile hasn't gotten on board." The suit does not specify how much T-Mobile should pay in penalties. "We're not exactly sure how many credit card transactions T-Mobile has engaged in California over the past year," Mr. Boxer said. "But we presume there have been tens if not hundreds of thousands of transactions at $1,000 per violation. We will be seeking pretty significant damages." Mr. Boxer said his firm decided to file the suit in a Marin County court because Pringle's transaction occurred in Marin and because "Marin County jurors tend to be protective of their privacy rights, and we think this is an issue that will resonate." THOMSON CRUISES: Faces Class Action Over Poor Hygiene at Ships -------------------------------------------------------------- Edward Owen, writing for Bowling Green Cruise Examiner, reports that more than 200 persons have filed a "class action type" lawsuit against a cruise line because of problems with odors and poor hygiene when they sailed two years ago. British based Thomson Cruises experienced problems on their flagship, the Dream, and passengers that sailed between May and October, 2010 have filed the suit. The Dream is a 55,000 ton, 1,506 passenger ship that Thomson purchased from Costa Cruises. There were reports of numerous problems on board the ship in its early days of operation, including plumbing problems. According to a British newspaper, "This is Staffordshire", complaints included "toilets blocked and overflowing, food was undercooked and reused, and air conditioning units were often broken". Another couple claimed they might have become sick because of the trip. The Web site Cruise Critic allows cruisers to submit critiques of individual cruise ships, says that 90% of responders in 2011 gave the Dream a favorable response. WALGREEN CO: Faces Class Action Over Expensive Generic Drugs ------------------------------------------------------------ Courthouse News Service reports that in a federal class action, the UFCW claims Walgreen illegally filled prescriptions for generic Zantac and Prozac with co-defendant Par Pharmaceuticals' higher-priced drugs. A copy of the Complaint in United Food and Commercial Workers Unions and Employers Midwest Health Benefits Fund v. Walgreen Company, et al., Case No. 12-cv-00204 (N.D. Ill.), is available at: http://www.courthousenews.com/2012/01/12/Walgreen.pdf The Plaintiff is represented by: Patrick E. Cafferty, Esq. Anthony F. Fata, Esq. CAFFERTY FAUCHER LLP 30 North LaSalle Street, Suite 3200 Chicago, IL 60602 Telephone: (312) 782-4880 E-mail: pcafferty@caffertyfaucher.com afata@caffertyfaucher.com - and - Jonathan D. Karmel, Esq. THE KARMEL LAW FIRM 221 N. LaSalle Street, Suite 1414 Chicago, IL 60601 Telephone: (312) 641-2910 E-mail: jon@karmellawfirm.com - and - Kenneth A. Wexler, Esq. Dawn M. Goulet, Esq. WEXLER WALLACE LLP 55 West Monroe, Suite 3300 Chicago, IL 60603 Telephone: (312) 346-2222 E-mail: kaw@wexlerwallace.com dmg@wexlerwallace.com ********* S U B S C R I P T I O N I N F O R M A T I O N Class Action Reporter is a daily newsletter, co-published by Bankruptcy Creditors' Service, Inc., Fairless Hills, Pennsylvania, USA, and Beard Group, Inc., Frederick, Maryland USA. Noemi Irene A. Adala, Joy A. Agravante, Ivy B. Magdadaro, Psyche A. Castillon, Julie Anne L. Toledo, Christopher Patalinghug, Frauline Abangan and Peter A. Chapman, Editors. Copyright 2012. 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 Peter Chapman at 240/629-3300. * * * End of Transmission * * *