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/raid1/www/Hosts/bankrupt/CAR_Public/120207.mbx C L A S S A C T I O N R E P O R T E R Tuesday, February 7, 2012, Vol. 14, No. 26 Headlines APPLE: Plaintiffs May Appeal Equitable Estoppel Ruling CARNIVAL CORP: Faces Suit in Ill. Over Costa Concordia Accident DEPAUL UNIVERSITY: Inflates Graduates' Mean Salaries, Suit Says FACEBOOK: Attorneys Argue Over Likeness Class Action Transfer FIT INTERNATIONAL: Investors to File RICO Class Action FULL TILT: Judge Dismisses RICO Class Action GLG LIFE: Murray Frank Files Securities Class Action in N.Y. HARPER'S BAZAAR: Former Intern Files Wage Class Action HECLA MINING: Faces Securities Class Action in Idaho HEWLETT-PACKARD: Recalls 1.17-Mil. Fax Machines Due to Fire Risk HONDA: Woman Wins Small Claims Action Over Hybrid Car Mileage ILLINOIS INSTITUTE: Faces Suit Over Chicago-Kent Marketing Fraud JOHN MARSHALL: Manipulates Employment Statistics, Suit Claims K12 INC: Gardy & Notis Files Securities Class Action in Virginia KONICA MINOLTA: Recalls 8,430 Printers Due to Fire Hazard LOUISIANA CITIZENS: Court Declines Request for Class Action Stay LTD COMMODITIES: Recalls 2,650 Sleeper Ottomans Due to Fall Risk MCKESSON CORP: Final Hearing on Kansas AWP Suit Deal on April 17 MOTOROLA SOLUTIONS: Settles Shareholder Class Action for $200MM PEP BOYS: Being Sold to Gores Group for Too Little, Suit Claims ROYAL BANK: Faces Class Action Over GBP12-Billion Rights Issue TEMPUR-PEDIC: Jacob's Petition for En Banc Review Still Pending TIBCO SOFTWARE: Appeals From IPO Suit Settlement Order Dismissed TUESDAY MORNING: Bid to Certify Class in Alabama Suit Pending UNITED STATES: Schwab Sues FINRA Over Class Action Waiver VIVENDI: Investor Class Action Dismissed WAL-MART STORES: Women Employees File Discrimination Suit WARNOCK DODGE: Class Action Settlement Obtains Final Approval WEST ELM: Recalls 5,750 Overarching Floor Lamps Due to Shock Risk * Robin Ellison Launches Class Action Tort Recovery Association ********* APPLE: Plaintiffs May Appeal Equitable Estoppel Ruling ------------------------------------------------------ Nick McCann at Courthouse News Service reports that a class that claimed Apple and AT&T illegally restricted choice of carriers can appeal Apple's defense strategy as the case proceeds to arbitration, a federal judge ruled. Lead plaintiffs Paul Holman and Lucy Rivello filed a federal complaint against Apple and AT&T Mobility in October 2007, claiming the companies illegally controlled consumer choices by limiting iPhone users to AT&T plans. A San Jose federal judge certified their class action last year. Pointing to an arbitration clause in AT&T contracts, however, the companies rejected the court's jurisdiction. When the U.S. Supreme Court reached that very conclusion in a similar case involving AT&T's arbitration contracts, Concepcion v. AT&T Corp, Judge James Ware disbanded Holman-Rivello class. "The Supreme Court has specifically considered the very arbitration agreement at issue in this case, and has determined that it is enforceable, on the grounds that the agreement 'essentially guarantee[d]' that 'aggrieved customers who filed claims' would 'be made whole,'" Judge Ware wrote in December. Though Apple's own contracts with customers pushed for a "court" decision of claims, Judge Ware said arbitration could resolve its alleged liability as well since AT&T had the relevant contract. But in a new decision on Feb. 1, Judge Ware said the plaintiffs can appeal Apple's invocation of the doctrine of equitable estoppel. The appeal claims Apple is not eligible to make this claim since it never signed AT&T's contract with the arbitration provision. In granting leave for the appeal, Judge Ware cited Mundi v. Union Security Life Insurance Co., which is the controlling 9th Circuit case that addresses how a nonsignatory to an agreement can compel a signatory to arbitrate claims. In that case, the court saw "no basis for extending the concept of equitable estoppel of third parties in an arbitration context beyond the very narrow confines [already] delineated." But Judge Ware said there is room for debate, "given the fact that the court's December 1 order was premised on an interpretation of Mundi which requires the court to undertake an extensive analysis of both that opinion itself and the Second Circuit caselaw to which the Mundi court looked for guidance, and given the language in Mundi which indicates that the Ninth Circuit did not mean to extend the 'concept of equitable estoppel of third parties' beyond the 'very narrow confines' delineated in previous cases." This difference of opinion warrants certification of the issue for immediate appeal. The plaintiffs' other arguments did not fare as well, however. Among them, the plaintiffs argued that AT&T had abandoned its right to demand arbitration because the company failed to appeal a previous order, and it was not equitable for the court to allow Apple to demand arbitration. A copy of the Order Granting in Part and Denying in Part Motion for Reconsideration or to Certify for Interlocutory Appeal; Certifying for Interlocutory Appeal Re. The Assertion of Equitable Estoppel by a Non-Signatory Defendant by a Non-Signatory Defendant Against a Signatory Plaintiff; Staying Case in In re Apple & AT&TM Antitrust Litigation in Case No. 07-cv-05152 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/02/02/apple.pdf CARNIVAL CORP: Faces Suit in Ill. Over Costa Concordia Accident --------------------------------------------------------------- Carnival Corporation is facing a class action lawsuit in Illinois over the Costa Concordia accident, the Company disclosed in its January 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended November 30, 2011. On January 13, 2012, Costa Concordia grounded off the coast of Isola del Giglio, Italy, and sustained significant damage. There were 16 casualties, a number of injuries and 16 people remain missing, as of January 26, 2012. The ship remains grounded and partially submerged off the coast. The cause of the accident is currently under investigation by the Italian authorities. As a result of this accident, litigation claims, enforcement actions and regulatory actions and investigations, including but not limited to those arising from personal injury, loss of life, loss of or damage to personal property, business interruption losses or environmental damage to any affected coastal waters and the surrounding area, may be asserted or brought against various parties, including the Company. The Company's Europe, Australia & Asia segment cruise brands include AIDA Cruises, Costa Cruises, Cunard, Ibero Cruises, P&O Cruises (Australia) and P&O Cruises (UK). On January 26, 2012, a purported class action was filed by Gary Lobaton in the United States District Court for the Northern District of Illinois (Eastern Division) naming as defendants Costa Crociere, S.p.A., Carnival Corporation and Carnival plc (Gary Lobaton v Carnival Corporation, Carnival plc and Costa Crociere S.p.A. et. al., No. 12-cv-00598). The plaintiff purports to represent an alleged class of the passengers and crew of Costa Concordia who were onboard the ship on January 13, 2012. The complaint alleges that the defendants violated the Athens Convention Relating to the Carriage of Passengers and their Luggage by Sea, breached contracts with employees and passengers and acted negligently. The plaintiff also alleges unjust enrichment. The complaint seeks unspecified monetary and punitive damages, interests and costs, among other things. DEPAUL UNIVERSITY: Inflates Graduates' Mean Salaries, Suit Says --------------------------------------------------------------- Jonathan Phillips, Brian Loker, Adam Smestad, Xavier Hailey, Brent Davidson, Shellye Taylor, Allison Leary, and Ammanual Luba, on behalf of themselves and all others similarly situated v. DePaul University, a/k/a as DePaul University College of Law, and Does 1- 20, Case No. 2012-CH-03523 (Ill. Cir. Ct., Cook Cty., February 1, 2012) alleges that De Paul, in its print and Internet marketing materials, makes two misrepresentations: (i) De Paul reported that roughly between 88 and 98 percent of its graduates secured employment within nine months of graduation, and (ii) De Paul grossly inflates its graduates' reported mean salaries, by calculating them based on a small, deliberately selected subset of graduates, who actually submit their salary information. The Plaintiffs allege that there is no place where prospective students can find De Paul's "real" employment numbers. They contend that the school supplies the same dubious statistics to the U.S. News & World Report and the American Bar Association, the two primary sources of information for law school employment data. Messrs. Phillips, Luba and Hailey graduated from De Paul in 2010. Ms. Taylor graduated from De Paul in 2010. Messrs. Loker, Smestad and Davidson graduated from De Paul in 2009, while Ms. Leary graduated in 2011. The Plaintiffs allege that they paid tens of thousands of dollars in tuition and fees to the school while incurring tens of thousands of dollars more in debt. They argue that in applying and deciding to remain enrolled at De Paul, they relied on salary data and employment information posted on De Paul's Web site, marketing material and disseminated to third- party data clearinghouses and publications, such as the ABA and US News. De Paul is an ABA-accredited law school and an Illinois not-for- profit corporation with its principal place of business in Chicago, Illinois, and is part of De Paul University. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiffs. The Plaintiffs are represented by: Edward X. Clinton, Sr., Esq. Edward X. Clinton, Jr., Esq. THE CLINTON LAW FIRM 111 West Washington St., Suite 1437 Chicago, IL 60602 Telephone: (312) 357-1515 E-mail: eclinton@mac.com eclinton@aol.com - and - David Anziska, Esq. THE LAW OFFICES OF DAVID ANZISKA 305 Broadway, 9th Fl. New York, NY 10007 Telephone: (212) 822-1496 Facsimile: (212) 822-1437 E-mail: david@anziskalaw.com - and - Jesse Strauss, Esq. STRAUSS LAW, PLLC 305 Broadway, 9th Fl. New York, NY 10007 Telephone: (212) 822-1496 Facsimile: (212) 822-1437 E-mail: jesse@strausslawpllc.com FACEBOOK: Attorneys Argue Over Likeness Class Action Transfer ------------------------------------------------------------- Ann Maher, writing for The Madison St. Clair Record, reports that while Facebook hopes to raise as much as $10 billion when it begins selling shares, attorneys pursuing a class action against the social network seek to assess billions of dollars in fines. St. Louis attorney Stephen Tillery sued Facebook last year in the Southern District of Illinois for parents of two teenagers, claiming Facebook misappropriated their names and likenesses for commercial purposes without consent. The class action suit alleges Facebook improperly advertised what the teens liked. Plaintiffs argue that state law prohibits children from giving Facebook permission to use their names and pictures in advertisements as Facebook does in its social ads and sponsored stories. Facebook is trying to get the case filed here transferred to the Northern District of California. Korein Tillery attorney Aaron Zigler, in opposition to Facebook's motion to transfer, argues that his clients would be inconvenienced by traveling to California to pursue a class action against Facebook. Mr. Zigler wrote that costs of litigation would "needlessly increase" if the case were transferred. "Transfer of this action to California would significantly inconvenience the guardians and effectively prevent them from adequately supervising the litigation: California counsel would be required; the guardians would be unable to attend pre-trial hearings and would be burdened to attend any trial," Mr. Zigler wrote last month in opposition to Facebook's motion to transfer. "The cost for the hotels, food, transportation, and local counsel fees that would be required to litigate this matter in San Francisco far exceeds the expense of comparable services in St. Louis." Mr. Zigler also argued that the interests of justice do not favor transfer. "The most recent Federal Judicial Caseload Statistics show the docket conditions of the Northern District of California to be no better -- in fact slightly worse -- than this Court," Mr. Zigler wrote. "The median time to trial in the Northern District of California is 25.3 months; here it is 23.0." Mr. Zigler argues that under California law, "minors are statutorily forbidden from entering into a contract that purports to 'give a delegation of power' or that relates to 'any personal property not in the immediate possession or control of the minor'." ". . . Facebook devotes significant attention to the argument that Plaintiffs are bound by the forum-selection clause found in its Statement of Rights and Responsibilities (SRR)," Mr. Zigler wrote. "But Facebook's argument deserves little in the way of a response as it is based on a fundamental misunderstanding of the nature of the purported contract." Facebook attorney Matthew D. Brown of San Francisco fired back at Mr. Zigler's argument saying that plaintiffs cannot disaffirm the SRR for two reasons: "1) Their use of Facebook since filing this lawsuit is irreconcilable with the 'unequivocal intent to repudiate' the SRR that would be required to disaffirm it; and 2) Their longstanding receipt of the SRR's benefits, before and after the lawsuit, precludes disaffirmance."' Mr. Brown wrote in December that one of the plaintiffs logged into Facebook 185 times since the parents sued, and the other logged in 94 times. The Plaintiffs are represented by: Stephen Tillery, Esq. Aaron Zigler, Esq. KOREIN TILLERY One U.S. Bank Plaza 505 North 7th Street, Suite 3600 St. Louis, MO 63101-1625 Telephone: (314) 241-4844 E-mail: stillery@koreintillery.com azigler@koreintillery.com FIT INTERNATIONAL: Investors to File RICO Class Action ------------------------------------------------------ Adam Klasfeld at Courthouse News Service reports that investors in an alleged $100 million Ponzi scheme will try again to serve a Columbian couple with a federal RICO class action that accuses them of running off with money from 600 victims. Plaintiffs Manuel Bolivar, Andres Rubio and Janneth Quintero filed a nearly identical class action in March 2010, which a federal judge dismissed last August for failure to prosecute. Neither of the defendants -- Jairo Enrique Sanchez and Dilia Margarita Baez -- answered the original complaint, U.S. District Judge Paul Gardephe wrote in his order of dismissal. The investors claim that when the Ponzi scheme was discovered, the defendants claimed to be distributing their remaining $12,690.74 "for the 'benefit' of creditors." According to both lawsuits, the couple's last known address was an apartment in Bogota, and they used the name Forex International Team for their scam. The FIT International Group was the main tool for their predations, though "No such company has ever been incorporated, as a corporation or limited liability company, in New York," the investors say. Foreign exchange markets trade roughly $3 trillion a day, making it one of the largest markets in the world, according to the complaint. It's fertile ground for Ponzi schemes. "Because there are no daily limits on trading or the hours for trades, except weekends, there is nearly always an opportunity to react to moves in the main currency markets and a low risk of being caught in an investment without an opportunity to exit," the complaint states. Mr. Sanchez and Ms. Baez solicited clients through "social connections," particularly a dentist in Columbia named Mauricio Vasquez Uribe, the complaint states. Mr. Uribe is not a party to this action. Though they took more than $100 million from investors over "the course of several years," Mr. Sanchez and Ms. Baez "never invested the money in Forex trading as they had promised, but merely siphoned it away to secret private accounts at HSBC, UBS, and others," the complaint states. As the scheme unraveled in December 2008, the dentist Uribe pulled out, warned investors to withdraw their money, and redeemed the $2.2 million he added to the enterprise, the complaint states. Then in March 2009, Mr. Sanchez and Ms. Baez manufactured "catastrophic losses of purportedly as much as 70 percent to 80 percent to investor accounts," though they never had invested the money to begin with, the class claims. Then they fraudulently filed for bankruptcy in Florida, and deflected "every single question" from creditors by pleading their Fifth Amendment right, according to the complaint. The class seeks damages for fraud, racketeering and other charges. It is represented by: Gaytri Kachroo, Esq. KACHROO LEGAL SERVICES, P.C. Boston Office 219 Concord Avenue Cambridge, MA 02138 Telephone: (617) 864-0755 A copy of the Order of Dismissal in Bolivar, et al. v. FIT International Group Corp., et al., Case No. 10-cv-02128 (S.D.N.Y.), is available at http://is.gd/21Fu4r FULL TILT: Judge Dismisses RICO Class Action -------------------------------------------- Jenni Shuttleworth, writing for Intergame, reports that a New York federal judge has dismissed a first class action law suit brought against Full Tilt. US District Judge Leonard B. Sand on Jan. 30 dismissed a civil Racketeer Influenced and Corrupt Organizations (RICO) suit alleging that Full Tilt Poker and 10 individual defendants conspired to defraud company account holders of US$150 million by freezing their accounts. Website Law360 broke the news on Jan. 31 that the judge had argued it was unclear at this point whether a conspiracy by the defendants or the federal government's actions were the reason why players resulted in being unable to access their funds. The suit, which targets nine companies, 16 individuals and a number of defendants over the alleged scheme, stems from the federal government's probe into and subsequent criminal and civil suits over the gambling site's activities. The government's case focused on allegations of bank and wire fraud and money laundering at Full Tilt, PokerStars and Absolute Poker. As a result of the investigation on April 15, prosecutors seized the assets of the three sites, barring players from accessing their accounts. The RICO suit was filed to seeking to recover those funds. GLG LIFE: Murray Frank Files Securities Class Action in N.Y. ------------------------------------------------------------ Murray Frank LLP has filed a class action complaint in the United States District Court for the Southern District of New York (Case No. 12 Civ. 0672) on behalf of all individuals and institutions who purchased securities of GLG Life Tech Corporation during the period between February 1, 2011 and November 13, 2011, seeking to pursue remedies under the Securities Exchange Act of 1934. The Complaint alleges that throughout the Class Period, the Defendants made false and misleading statements about or knew but failed to disclose that: (1) the Company's original equipment manufacturers were experiencing production issues that impacted the packaging and appearance quality of its products; (2) consumers were responding poorly to the Company's AN0C and stevia products; and/or (3) the Company would not meet its earnings projections. On October 6, 2011, GLG Life Tech issued a press release disclosing for the first time a negative outlook concerning its AN0C and stevia products. On the news, the Company's stock price dropped by 42% from a close of $3.45 per share on October 5, 2011 to a close of $1.99 per share on October 6, 2011. Subsequently, on November 14, 2011, the Company announced financial results for the period ending September 30, 2011. Revenue for the period was $1.7 million, versus revenue of $20.9 million for the same period in the previous year. EBITDA for the period was negative $8.8 million, versus EBITDA of $6.1 million for the same period in the previous year. Following its announcement of these disappointing results, the Company's management declined to provide any further formal guidance on revenues, EBITDA, or capital expenditures. On the news, the Company's stock price continued to drop, from a close of $2.32 per share on November 11, 2011 (the last trading day before the announcement) to a close of $2.01 on November 14, 2011. If you purchased GLG Life Tech securities during the period between February 1, 2011 and November 13, 2011, you may move the Court, not later than February 13, 2012, to serve as Lead Plaintiff for the Class. A Lead Plaintiff is a representative chosen by the Court who acts on behalf of other class members in directing the litigation. You do not need to be a Lead Plaintiff to be included in the class. If you purchased GLG Life Tech common securities and wish to discuss this litigation, or have any questions concerning this Notice or your rights or interests with respect to these matters, please contact: Bridget Hamill, Esq. Murray Frank LLP Telephone: (800) 497-8076 (212) 682-1818 E-mail at bhamill@murrayfrank.com Web site: http://www.murrayfrank.com HARPER'S BAZAAR: Former Intern Files Wage Class Action ------------------------------------------------------ Dhani Mau, writing for Fashionista, reports that in news that is really only surprising because it's never happened before, a major fashion magazine is getting sued by one of its former interns. According to the New York Times, Xuedan Wang interned at Harper's Bazaar from August 2010 through December 2011 for 40 to 55 hours per week and on Feb. 1 filed a lawsuit against Hearst (the fashion glossy's publisher) accusing them of violating state and federal wage and hour laws by not paying her when she was doing the work of a paid employee. From the Times: The lawsuit against Hearst states, "Employers' failure to compensate interns for their work, and the prevalence of the practice nationwide, curtails opportunities for employment, fosters class divisions between those who can afford to work for no wage and those who cannot, and indirectly contributes to rising unemployment." HECLA MINING: Faces Securities Class Action in Idaho ---------------------------------------------------- Courthouse News Service reports that shareholders claim in a federal class action that Hecla Mining Co. failed to disclose safety problems at its Lucky Friday mine, where repeated accidents in 2011 killed 2 miners and injured 7, with the share price sinking from $11.34 on Dec. 29, 2010, to $4.61 this year. A copy of the Complaint in Bricklayers of Western Pennsylvania Pension Plan v. Hecla Mining Company, et al., Case No. 12-cv-00042 (D. Idaho), is available at: http://www.courthousenews.com/2012/02/02/Hecla.pdf The Plaintiff is represented by: Philip Gordon, Esq. Bruce S. Bistline, Esq. GORDON LAW OFFICES 623 West Hays Street Boise, ID 83702 Telephone: (208) 345-7100 E-mail: pgordon@gordonlawoffice.com - and - Darren J. Robbins, Esq. David C. Walton, Esq. Catherine J. Kowalewski, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: (619) 231-1058 E-mail: darrenr@rgrdlaw.com davew@rgrdlaw.com katek@rgrdlaw.com HEWLETT-PACKARD: Recalls 1.17-Mil. Fax Machines Due to Fire Risk ---------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with Hewlett-Packard Co., of Palo Alto, California, announced a voluntary recall of about 928,000 HP fax 1040 and 1050 machines in the U.S. and 240,000 in Canada and Mexico. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The fax machines can overheat due to an internal electrical component failure, posing fire and burn hazards. Hewlett-Packard is aware of seven reports of fax machines overheating and catching fire, resulting in property damage, including one instance of significant property damage and one instance of a minor burn injury to a consumer's finger. Six incidents were reported in the U.S. and one in Canada. This recall involves HP Fax 1040 and 1050 models. The HP logo and the model number are printed on the front of the fax machine. The fax machines are dark gray and measure about 11 inches high x 14 1/2 inches wide. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12101.html The recalled products were manufactured in China and sold at electronics, computer and camera stores nationwide, and online at http://www.shopping.hp.com/and other Web site from November 2004 through December 2011 for between $90 and $120. Some of the recalled fax machines were replacement units for a previous recall involving HP fax model 1010 in June 2008. Consumers should immediately stop using the recalled fax machines, disconnect them from the electrical outlet and contact HP for a rebate on the purchase of an authorized replacement HP fax machine or a partial rebate of certain HP ink jet printers. For additional information, contact HP toll-free at (888) 654-9296 between 6:00 a.m. and 6:00 p.m. Mountain Time Monday through Friday, or visit the firm's Web site at http://www.hp.com/go/faxrecall/US-en/ HONDA: Woman Wins Small Claims Action Over Hybrid Car Mileage ------------------------------------------------------------- Linda Deutsch, writing for The Associated Press, reports that a Southern California woman who challenged the legal status-quo by filing a small-claims action against Honda won her lawsuit on Feb. 1 when a judge ruled that the automaker misled her about the potential fuel economy of her hybrid car. Los Angeles Superior Court Commissioner Douglas Carnahan awarded Heather Peters $9,867 -- much more than the couple hundred dollars cash that a proposed class-action settlement is offering. "At a bare minimum Honda was aware . . . that by the time Ms. Peters bought her car there were problems with its living up to its advertised mileage," Mr. Carnahan wrote in the judgment. Honda disagrees with the judgment rendered in the case and plans to appeal the decision, company spokesman Chris Martin said in a statement. Ms. Peters, a former lawyer, said she is renewing her legal license after a 10-year lapse so she can represent other Honda owners who have the same problems she did. "Wow! Fantastic. I am absolutely thrilled," she said when The Associated Press informed her of the judge's decision. "Sometimes big justice comes in small packages. This is a victory for Honda Civic owners everywhere." Mr. Carnahan included in his 26-page decision a long list of misleading representations by Honda that he said Ms. Peters had correctly identified. Among them were that the car would use "amazingly little fuel," "provides plenty of horsepower while still sipping fuel," and that it would "save plenty of money on fuel with up to 50 mpg during city driving." "Actual performance of plaintiff's vehicle did not live up to these standards," he said. He noted that when she began receiving much less than the advertised mileage, "she knew she had a problem." Ms. Peters opted out of the class-action lawsuit so she could try to claim a larger damage award for her 2006 Honda Civic's failure to deliver the 50 mpg that was promised. The proposed class-action settlement would give aggrieved owners $100 to $200 each and a $1,000 credit toward the purchase of a new car. Legal fees in the class action would give trial lawyers $8.5 million, Ms. Peters said. In small claims court, there are no attorneys' fees, cases are decided quickly, and individual payments are far greater. Ms. Peters had hoped to inspire a flood of small-claims lawsuits by the other 200,000 people whose Honda Civic hybrids are covered by the proposed settlement. If all 200,000 owners sued and won in small claims court, she said, it could cost Honda Motor Co. $2 billion. Ms. Peters launched a Web site, DontSettleWithHonda.org, and said she was contacted by hundreds of other car owners seeking guidance on filing small claims lawsuits if they opted out of the class- action case. But legal experts say it's unlikely that many owners would take the small-claims route because of the time and energy involved in pursuing such lawsuits. Mr. Carnahan held two hearings on Ms. Peters' claim in January. The commissioner noted that Honda had argued the way a car is driven might affect its gas mileage. He said that should have been explained in advertising and elsewhere. A Honda technical expert testified that the company was required to post a sticker with the Environmental Protection Agency's estimate of the highest mileage the car could get. But Mr. Carnahan said in his ruling that "this does not seem to be the case." "Honda's own testing should be the guideline for how it advertises its vehicles' mileages, not the generalized work . . . done by the EPA," he said. "Can a Honda hybrid driven in careful and tested ways achieve 50 mpg? No doubt. Did it happen with Peters' car? No." The ruling harshly criticized Honda on several points, including misrepresentations about a software update that was represented as a cure for the mileage problems. Ms. Peters said it just made the situation worse and she could no longer get more than 30 mpg in the car, which she still owns. Mr. Carnahan found that Honda did commit fraud, but he could not find intentional fraud and thus did not award punitive damages. Most of the damages Ms. Peters was awarded were for extra money spent on fuel, both in the past and future, the cost of the car battery, and the decrease in the car's value because of its problems. A judge in San Diego County is due to rule in March on whether to approve Honda's class-action settlement. Members of the class have until Feb. 11 to accept or decline the deal. Small claims courts generally handle private disputes that do not involve large amounts of money. In many states, that means small debts, quarrels between tenants and landlords and contract disagreements. The limit for small claims damages in California is $10,000. In other states it ranges from $2,500 to $15,000. ILLINOIS INSTITUTE: Faces Suit Over Chicago-Kent Marketing Fraud ---------------------------------------------------------------- Rachelle Evans, Alexi Silsbe, Ian Johnson, and Aeric Bauman, on behalf of themselves and all others similarly situated v. Illinois Institute of Technology, a not-for-profit corporation, a/k/a Chicago-Kent College of Law, and Does 1-20, Case No. 2012-CH-03522 (Ill. Cir. Ct., Cook Cty., February 1, 2012) seeks to remedy an alleged systemic, ongoing fraud that is ubiquitous in the legal education industry and threatens to leave a generation of law students in dire financial straits. Essentially, the Plaintiffs want to bring an element of "sunlight" or transparency to the way law schools report post-graduate employment data and salary information, by requiring that they make material disclosures that will give both prospective and current students a more accurate picture of their post-graduate financial situation, as opposed to the status quo where law schools are incentivized to engage in all sorts of deception when tabulating employment statistics. The Plaintiffs allege that Chicago-Kent consigns the majority of its graduates to years of indentured servitude, saddling them with tens of thousands of dollars in crushing, non-dischargeable debt that will take literally decades to pay off. Ms. Evans and Ms. Silsbe graduated from Chicago-Kent in 2011 and are members of the Illinois bar. Mr. Johnson graduated from Chicago-Kent in 2009 and is a member of the Illinois bar. Mr. Bauman is a current student in Chicago-Kent, who is set to graduate in May 2012. The Plaintiff assert that they paid in total tens of thousands of dollars in tuition and fees to the school while incurring tens of thousands of dollars more in debt. In applying and deciding to remain enrolled at Chicago-Kent, they tell the Court that they relied on salary data and employment information posted on Chicago-Kent's Web site, marketing material and disseminated to third-party data clearinghouses and publications, such as the American Bar Association and the U.S. News & World Report. Chicago-Kent is an ABA-accredited law school and an Illinois not- for-profit corporation with its principal place of business in Chicago, Illinois. Chicago-Kent is part of the Illinois Institute of Technology. The identities of the Doe Defendants are currently unknown to the Plaintiffs. The Plaintiffs are represented by: Edward X. Clinton, Sr., Esq. Edward X. Clinton, Jr., Esq. THE CLINTON LAW FIRM 111 West Washington St., Suite 1437 Chicago, IL 60602 Telephone: (312) 357-1515 E-mail: eclinton@mac.com eclinton@aol.com - and - David Anziska, Esq. THE LAW OFFICES OF DAVID ANZISKA 305 Broadway, 9th Fl. New York, NY 10007 Telephone: (212) 822-1496 Facsimile: (212) 822-1437 E-mail: david@anziskalaw.com - and - Jesse Strauss, Esq. STRAUSS LAW, PLLC 305 Broadway, 9th Fl. New York, NY 10007 Telephone: (212) 822-1496 Facsimile: (212) 822-1437 E-mail: jesse@strausslawpllc.com JOHN MARSHALL: Manipulates Employment Statistics, Suit Claims ------------------------------------------------------------- Jorie Johnson, Erum Mohammed and Joseph Reyes, on behalf of themselves and all others similarly situated v. The John Marshall Law School, and Does 1 - 20, Case No. 2012-CH-03494 (Ill. Cir. Ct., Cook Cty., February 1, 2012) accuses John Marshall of blatantly misrepresenting and manipulating its employment statistics to prospective students. The Plaintiffs allege that John Marshall's deceptions are perpetuated so as to prevent prospective students from realizing the obvious -- that attending John Marshall and forking approximately $120,000 in tuition payments is a terrible investment, which makes little economic sense and, most likely, will never pay off. Ms. Johnson graduated from John Marshall in 2008, while Ms. Mohammed graduated in 2009. Mr. Reyes graduated from John Marshall in 2011. The Plaintiffs disclose that they paid tens of thousands of dollars in tuition and fees to the school while incurring tens of thousands of dollars more in debt. In applying and deciding to remain enrolled at John Marshall, the Plaintiffs assert that they relied on salary data and employment information posted on the school's Web site, marketing material and disseminated to third-party data clearinghouses and publications, such as the American Bar Association and the U.S. News & World Report. John Marshall is an ABA-accredited law school. John Marshall is an Illinois not-for-profit corporation with its principal place of business located in Chicago, Illinois. The true names and capacities of the Doe Defendants are currently unknown to the Plaintiffs. The Plaintiffs are represented by: Edward X. Clinton, Sr., Esq. Edward X. Clinton, Jr., Esq. THE CLINTON LAW FIRM 111 West Washington St., Suite 1437 Chicago, IL 60602 Telephone: (312) 357-1515 E-mail: eclinton@mac.com eclinton@aol.com - and - David Anziska, Esq. THE LAW OFFICES OF DAVID ANZISKA 305 Broadway, 9th Fl. New York, NY 10007 Telephone: (212) 822-1496 Facsimile: (212) 822-1437 E-mail: david@anziskalaw.com - and - Jesse Strauss, Esq. STRAUSS LAW, PLLC 305 Broadway, 9th Fl. New York, NY 10007 Telephone: (212) 822-1496 Facsimile: (212) 822-1437 E-mail: jesse@strausslawpllc.com K12 INC: Gardy & Notis Files Securities Class Action in Virginia ---------------------------------------------------------------- Gardy & Notis, LLP has filed a class action lawsuit in the United States District Court for the Eastern District of Virginia on behalf of purchasers of shares of common stock of K12 Inc. during a class period of September 9, 2009 to December 16, 2011. The class action seeks to recover damages on behalf of plaintiff and a class of all other individual and institutional investors who purchased or otherwise acquired K12 common stock during the class period. The defendants in the case are K12, Ronald J. Packard and Harry T. Hawks. The complaint alleges that defendants violated Sections 10(b) and 20(a) of the Securities Exchange Act of 1934 by concealing material information and making false and misleading statements relating to K12's business and financial condition. On December 12, 2011, The New York Times released an article titled "Profits and Questions at Online Charter Schools" chronicling a myriad of improper practices at K12's main virtual charter schools, including (i) high-pressure sales strategies aimed strictly at enrolling students, irrespective of the students' suitability for online education; (ii) administrative pressure to pass enrolled students, regardless of academic performance; and (iii) overall failure of K12 students to maintain grade-level performance in math and reading. As a result of this news, the price of K12 stock dropped 34.4%, or $9.89 per share, from a closing price of $28.79 on December 12, 2011, to a closing price of $18.90 per share on December 16, 2011. The complaint specifically alleges that defendants misstated and/or failed to disclose that K12 had been engaging in abusive and deceptive student recruiting and flawed academic assessment practices, thereby increasing K12's student enrollment and revenues. The complaint further alleges that facts known by defendants, but concealed from the investing public, include: (i) K12 misstated and failed to disclose that it had engaged in improper and deceptive recruiting and sales strategies, aimed strictly at enrolling students regardless of the students' ability to successfully complete the curriculum; (ii) K12 misstated and failed to disclose the administrative pressure from upper management levels to pass students despite poor (or nonexistent) academic performance, so as to maintain high enrollment levels and in turn continued government payments; and (iii) K12 failed to maintain overall math and reading performance levels of its students equal to statewide grade-level performance. If you purchased K12 common stock between September 9, 2009 and December 16, 2011, you may, no later than April 2, 2012, request that the Court appoint you as lead plaintiff for the class. A lead plaintiff is a representative party that acts on behalf of other class members in directing the litigation. You must meet certain legal requirements to serve as a lead plaintiff. For more information regarding the lawsuit, or to obtain a copy of the complaint filed in the lawsuit, please contact plaintiff's counsel: Charles A. Germershausen, Esq. GARDY & NOTIS, LLP 501 Fifth Avenue New York, NY 10017 Telephone: (212) 905-0509 E-mail: cgermershausen@gardylaw.com Web site: http://www.gardylaw.com KONICA MINOLTA: Recalls 8,430 Printers Due to Fire Hazard --------------------------------------------------------- About 8,430 Konica Minolta Printers were voluntarily recalled by Konica Minolta Business Solutions U.S.A. Inc., of Ramsey, New Jersey, in cooperation with the U.S. Consumer Product Safety Commission. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The printers can short circuit and overheat during use, posing a fire hazard. The firm is aware of two reports of the printers overheating. No injuries have been reported. This recall involves four desktop models of laser color printers: Magicolor 4750DN, Magicolor 3730DN, Bizhub C35 and Bizhub C35P. Model numbers are located on the plate attached to the side of the printer as well as the bottom of the front door. The printers are dark and light gray in color and have "Konica Minolta" printed on the top of the front door. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12717.html The recalled products were manufactured in China and sold at various value-added resellers, direct retail sales and authorized Konica Minolta dealers from June 2010 through March 2011 for between $900 and $3,500. Consumers of Magicolor 3730DN and 4750DN should stop using the printers immediately and contact Konica Minolta to schedule a free replacement. Consumers of Bizhub C35 and C35P will be visited by an authorized service agent for repair and replacement of the faulty component. For additional information, contact Konica Minolta toll-free at (800) 825-5664 between 8:00 a.m. and 8:00 p.m. Eastern Time, Monday through Friday, or visit the firm's Web site at http://www.kmbs.konicaminolta.us/ LOUISIANA CITIZENS: Court Declines Request for Class Action Stay ---------------------------------------------------------------- Phil Gusman, writing for PropertyCasualty360.com, reports that the U.S. Supreme Court has decided not to delay the execution of a judgment against Louisiana Citizens Property Insurance Corp. while the last-resort insurer prepares an application for the high court to hear the case. The brief answer from the Supreme Court states, "The application for a stay pending the filing and disposition of a petition for a writ of certiorari in the above-entitled case has bee presented to Justice Scalia, who on January 31, 2012, denied the application." Citizens' request stems from a 2009 decision in a class-action lawsuit that accuses the state-run insurer of failing to start the claims-adjusting process within the time frame set by law following Hurricanes Katrina and Rita in 2005. The Louisiana Supreme Court reinstated the $93 million judgment against Citizens in December 2011, paving the way for about 18,575 Citizens policyholders to collect $5,000 each. Late last month, Citizens asked the state Supreme Court to reconsider its decision, but the court declined, prompting the last-resort insurer to take the matter up with the U.S. Supreme Court. Citizens has raised constitutional issues with the decision, including questions about the ability to impose a penalty without any showing of bad faith or conduct on the part of the insurer. Additionally, Louisiana Insurance Commissioner Jim Donelon has called the ruling a "potentially devastating event," as the state's policyholders may foot the bill because Citizens has the ability to levy assessments. When the Louisiana Supreme Court refused to reconsider the decision last month, plaintiffs sought to execute the judgment, and had the court issue a writ of garnishment, according to Richard Robertson, chief executive officer of Citizens. This involves seizing funds from the insurer's bank accounts. Mr. Robertson says the bank has 15 days to fill out the required paperwork to comply with the writ of garnishment. It is this action that Citizens sought to delay with its request to the U.S. Supreme Court. Now that the high court has rejected Citizens' request for a stay, Mr. Robertson says the process will continue forward, and if the money is seized, it will go to the court, which will hear and approve a plan for distributing the funds. Mr. Robertson says there are not a lot of appeal avenues left for Citizens other than the U.S. Supreme Court. "I'm guessing that in a couple of weeks, this will either be finished and money will be paid, or there will be some kind of intervention and I'm not sure what that will be," he says. Wiley Beevers, who serves as class counsel representing the policyholders, says, "It is gratifying to us that the Supreme Court of the United States denied the stay. We can now get on with the process of getting this money to the policyholders. It is unfortunate that Commissioner Donelon and the Citizens board spent $150,000 and committed $500,000 to legal action that is likely to fail and is only meant to further delay the payment to their insureds." LTD COMMODITIES: Recalls 2,650 Sleeper Ottomans Due to Fall Risk ---------------------------------------------------------------- About 2,650 Fold-Out Sleeper Ottomans were voluntarily recalled by importer, LTD Commodities LLC, of Bannockburn, Illinois, and manufacturer, Perfect Generation World, of Xiamen Fujian, China, in cooperation with the U.S. Consumer Product Safety Commission. Consumers should stop using the product immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product. The welding joints on the legs can break, posing a fall hazard to consumers. The firm has received four reports of ottoman legs that have broken, including two reports of minor injuries. This recall involves fold-out sleeper ottomans with a brown slipcover. The ottoman unfolds to three cushions on a black, steel frame. Velcro straps secure the cushions to the frame when in the unfolded sleep position. A tag with the manufacturer's registration number "VA18265(CN)" is attached to one of the three cushions. Pictures of the recalled products are available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12718.html The recalled products were manufactured in China and sold by LTD Commodities, ABC Distributing and The Lakeside Collection both online and through catalogs between June 2011 and October 2011 for about $170. Consumers should immediately stop using the product and contact the firm to obtain instructions on how to obtain a full refund. LTD Commodities is directly notifying known purchasers about the recall. For more information, contact LTD Commodities LLC and ABC Distributing toll free at (866) 736-3654, or The Lakeside Collection toll-free at (866) 847-4327 between 7:30 a.m. and 4:00 p.m. Central Time. Consumers can also visit the Web site of the retailers at: http://www.ltdcommodities.com/, http://www.abcdistributing.com/or http://www.lakeside.com/ MCKESSON CORP: Final Hearing on Kansas AWP Suit Deal on April 17 ---------------------------------------------------------------- A hearing for the final approval of a settlement of an average wholesale price-related lawsuit captioned Board of County Commissioners of Douglas County, Kansas et al. v. McKesson Corporation will be held on April 17, 2012, according to the Company's January 30, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. In the previously reported coordinated public payer Average Wholesale Price ("AWP") actions, collectively In re McKesson Governmental Entities Average Wholesale Price Litigation, filed against the Company in the United States District Court for Massachusetts and relating to alleged misstatements and manipulations of a benchmark for drug reimbursement known as AWP, on November 8, 2011, the court granted preliminary approval of the previously reported class action settlement in Board of County Commissioners of Douglas County, Kansas et al. v. McKesson Corporation, (No. 1:08-CV-11349-PBS) ("Douglas County, Kansas Action"), and set April 17, 2012, as the hearing date for final approval of the settlement. As previously reported, the Company has engaged in ongoing settlement discussions to resolve potential and pending federal and state Medicaid program claims relating to AWP. The Company has now reached an agreement in principle with the Department of Justice to resolve the federal share of Medicaid claims related to AWP for payment by the Company of approximately $187 million. This agreement is subject to execution of a written settlement agreement acceptable to all parties. The Company also has reached an agreement in principle with a coalition of State Attorneys General to resolve state Medicaid claims relating to AWP for payment by the Company of up to approximately $173 million. This amount shall be reduced by the total amount allocated to any state that declines to subscribe to the settlement. This agreement is subject to execution of written settlement agreements acceptable to the Company and each participating state. Although the Company believes that there will be substantial participation by the states, the final level of participation is not yet known. The Company will continue to defend vigorously any action pursued by a non-settling state. With certain adjustments, the Company has fully reserved for the financial effect of these agreements in principle. On August 25, 2011, as previously reported, the Company filed a motion to dismiss the Second Amended Complaint in the previously reported action filed in Mississippi state court by the State of Mississippi against the Company, State of Mississippi v. McKesson Corporation, et al., (No. 251-10-862CIV). The court has still not ruled on the Company's motion. On November 30, 2011, the court entered a scheduling order setting November 26, 2012, as the trial date. On November 11, 2011, an action was filed in the United States District Court for the Northern District of California by the State of Oregon against the Company as the sole defendant based on essentially the same factual allegations as alleged in In re McKesson Governmental Entities Average Wholesale Price Litigation, asserting violations of the federal and Oregon Racketeer Influenced and Corrupt Organizations Acts, and for unjust enrichment, civil conspiracy, tortious interference with contract, and fraud, seeking damages, treble damages, punitive damages, a constructive trust, as well as interest, attorneys' fees and costs of lawsuit, all in unspecified amounts, State of Oregon v. McKesson Corporation, No. C11-05384-SI. The Company filed an answer to the complaint on January 9, 2012. On November 29, 2011, the court denied the Company's motion to dismiss in the previously reported action filed in Michigan state court by the State of Michigan against the Company, First DataBank, Inc., and the Hearst Corporation, Bill Schuette ex rel. State of Michigan v. McKesson Corporation, et al., (11-629-CZ). No trial date has been set. On December 6, 2011, the Company entered into a settlement agreement with the State of Oklahoma with respect to the claims it asserted against the Company on behalf of the Oklahoma State and Education Employees Group Insurance Board ("OSEEGIB") in the Douglas County, Kansas Action. Pursuant to the settlement, on December 14, 2011, the parties filed a stipulation of dismissal with prejudice as to the claims Oklahoma asserted on behalf of OSEEGIB. On December 14, 2011, the court entered a judgment denying the Company's motion to dismiss in the previously reported action filed in Louisiana state court by the State of Louisiana against the Company, State of Louisiana v. McKesson Corporation, (No. C597634 Sec. 23). On December 19, 2011, the Company filed an application for a supervisory writ with the Louisiana Court of Appeals challenging the trial court's ruling that the State of Louisiana is the proper party to assert damages claims on behalf of Louisiana's Medicaid program. No trial date has been set. On December 15, 2011, the Company entered into a settlement agreement with the San Francisco Health Plan and the City Attorney of San Francisco in San Francisco Health Plan v. McKesson Corporation (No. 1:08-CV-10843-PBS) ("San Francisco Action"). Pursuant to the settlement, on December 21, 2011, the court entered a stipulated judgment and order, dismissing with prejudice the claims asserted on behalf of the San Francisco Health Plan and the People of the State of California, and dismissing without prejudice the causes of action asserted on behalf of the State of California under the California False Claims Act. On January 5, 2012, the Company, Oakland County, Michigan, and the City of Sterling Heights, Michigan, filed a stipulated order of dismissal, which is contingent on the court granting final approval of the settlement in the Douglas County, Kansas Action, in the previously reported action filed in the United States District Court for Massachusetts by these Michigan public entities against the Company, Oakland County, Michigan et al. v. McKesson Corporation, (No. 1:09-CV-10843-PBS). On January 12, 2012, the court entered the parties' stipulated order of dismissal. On January 13, 2012, the court conducted a hearing on the Company's motion to dismiss in the previously reported action filed in Indiana state court by the State of Indiana against the Company and First DataBank, Inc., State of Indiana v. McKesson Corp. et al., (No. 49D11-1106-PL-021595). The motion has not been ruled upon, and no trial date has been set. As previously reported, as of March 31, 2010, the Company had a reserve relating to its AWP public entity claims of $143 million. During the second quarter of 2011, the Company recorded an additional pre-tax charge of $24 million for the settlement with the State of Connecticut. During the third quarter of 2011, the Company recorded an additional pre-tax charge of $189 million following a review of the reserve, including consideration of the pace and progress of discussions relating to state and federal Medicaid claims. In 2011, the Company made a payment of $26 million from the reserve, and as of March 31, 2011, the reserve relating to the Company's AWP litigation was $330 million. During the second and third quarters of 2012, the Company recorded pre-tax charges of $118 million and $27 million following a review of its AWP reserve, including consideration of the Douglas County, Kansas Action settlement and the pace and progress of discussions relating to potentially resolving other public entity claims. In 2012, the Company made payments of $26 million from the reserve, and as of December 31, 2011, the reserve relating to the Company's AWP litigation was $449 million. The Company's AWP litigation reserve is included in other current liabilities in the condensed consolidated balance sheets. Pre-tax charges relating to changes in the Company's AWP litigation reserve are recorded within its Distribution Solutions segment. In view of the number of outstanding cases and expected future claims, and the uncertainties of the timing and outcome of this type of litigation, it is possible that the ultimate costs of these matters may exceed or be less than the reserve. MOTOROLA SOLUTIONS: Settles Shareholder Class Action for $200MM --------------------------------------------------------------- Reuters reports that a 2007 securities-fraud class action lawsuit brought by shareholders against Motorola Solutions Inc. reached a $200 million settlement, court records show. The parties entered into the settlement on Jan. 31 in federal court in Illinois. The settlement is still subject to court approval, according to the records. Shareholders claimed that Motorola had artificially inflated its stock by hiding information about its ability to compete in the cellphone market. Motorola denied the allegation. The litigation commenced before Motorola Inc. split into two companies in January last year. Schaumburg-based Motorola Solutions inherited the litigation. "We're pleased to have this behind us as it removes the risks and distractions of this litigation," said company spokeswoman Tara McWhinney. "This enables us to continue to focus on delivering mission-critical communications solutions to government and enterprise customers." In a written statement, plaintiff attorney Samuel Rudman of Robbins Geller Rudman & Dowd said the settlement was "an extraordinary recovery for investors in a case where there was no financial restatement or SEC investigation." Mr. Rudman can be reached at: Samuel Rudman, Esq. ROBBINS GELLER RUDMAN & DOWD LLP 58 South Service Road, Suite 200 Melville, NY 11747 Telephone: (631) 367-7100 E-mail: srudman@rgrdlaw.com PEP BOYS: Being Sold to Gores Group for Too Little, Suit Claims --------------------------------------------------------------- Courthouse News Service reports that shareholders says Pep Boys is selling itself too cheaply through an unfair process to the Gores Group, for $15 a share, or $1 billion, in a class action in the Court of Common Pleas. A copy of the Complaint in Gutmann v. Odell, et al., Case No. 120104340 (Pa. C.P. Ct., Philadelphia Cty.), is available at: http://www.courthousenews.com/2012/02/02/Pep.pdf The Plaintiff is represented by: Evan J. Smith, Esq. Marc L. Ackerman, Esq. BRODSKY & SMITH, LLC Two Bala Plaza, Suite 602 Telephone: (610) 667-6200 E-mail: jbrodsky@brodsky-smith.com mackerman@brodsky-smith.com - and - Brian J. Robbins, Esq. Stephen J. Oddo, Esq. Edward B. Gerard, Esq. Justin D. Reiger, Esq. ROBBINS UMEDA LLP 600 B Street, Suite 1900 San Diego, CA 92101 Telephone: (619) 525-3990 E-mail: brobbins@robbinsumeda.com soddo@robbinsumeda.com kmcintyre@robbinsumeda.com jrieger@robbinsumeda.com - and - Willie Briscoe, Esq. THE BRISCOE LAW FIRM, PLLC 8117 Preston Road, Suite 300 Dallas, TX 75225 Telephone: (214) 706-9314 - and - Patrick Powers, Esq. POWERS TAYLOR LLP Campbell Centre II 8150 N. Central Expressway Suite 1575 Dallas, TX 75206 Telephone: (214) 239-8900 E-mail: patrick@powerstaylor.com ROYAL BANK: Faces Class Action Over GBP12-Billion Rights Issue -------------------------------------------------------------- Martin Williams, writing for Herald Scotland, reports that pensioners and small investors who lost savings after the Royal Bank of Scotland's disastrous GBP12 billion rights issue three years ago have taken the first step in bringing proceedings against the bank, it has emerged. They have appointed Bird & Bird, the international law firm that represented Sir Stelios Haji-Ioannou in his brand dispute with easyJet, to prepare a "letter before action", the first legal move towards a class action. They have also enlisted renowned QC Philip Marshall, who is classified in Chambers & Partners as one of "the stars of the Bar." Shareholders had said they would continue their legal battle despite a Financial Services Authority investigation declaring Fred Goodwin and RBS were not guilty of any fraudulent activity before the bank failure. Now it has emerged the shareholders are preparing to take the case to court and have created a draft timetable that plans for an eight-week trial which is due to start at the end of 2013. A letter before action, normally expected to be accompanied by the draft particulars of the claim, is sent before the proceedings are issued. The development will heap further pressure on Mr. Goodwin, who suffered the ultimate public disgrace on Jan. 31 when the Queen stripped him of his knighthood for bringing the honors system into disrepute. The RBS Shareholders' Action Group is also seeking indemnity insurance to cover any costs if it loses its claim against RBS. Shareholders believe the rights prospectus was misleading and gave no hint that within a few months the company would require the GBP45.5 billion taxpayer bailout that triggered a banking crisis. Experts are advising shareholders they could use revelations that RBS also benefited from an almost identical taxpayer bailout package in the US months before the rights issue. It borrowed $84.5 billion in October 2008 from the US Federal Reserve, which paid out $1.2 trillion in loans to banks during the financial crisis, including more than a dozen foreign companies. Almost half of the Fed's top 30 borrowers were from Europe, and RBS was the biggest non-US beneficiary. The action group, in a memo to members, said Bird & Bird were "highly regarded and known for managing successfully complex commercial disputes". It added: "The team is now instructed to prepare a letter before action and, as necessary, commence proceedings against RBS and its former directors, and with leading counsel, Philip Marshall, QC, has commenced that work." RBS has already faced a class action claim by investors in the US but it was dismissed in January last year following an earlier US Supreme Court ruling that effectively ruled investors cannot use federal courts to raise fraud claims over the purchase of foreign securities. At the time, it was said the bank still faced a case regarding those who purchased US preference shares. Financier Peter de Vink, a former associate of Mr. Goodwin, believes the double bailout does not just strengthen the UK shareholders' case, it shows there is also a case for criminal proceedings. Mr. de Vink, now managing director of Edinburgh Financial & General Holdings, said: "If you are producing a document, where you are asking people to put GBP12 billion on the table and you fail to tell them that you have borrowed all that from the American Treasury, wouldn't you think it makes the document completely fraudulent, in my view. "If the bank had said we want you to know we are in hock to the American Treasury for that amount I don't think anyone would have subscribed to the GBP12 billion rights issue, which would have been then just a plaster on the wound." Mr. Marshall has been acting for BTA Bank in the case of Mukhtar Ablyazov, the Kazakh businessman accused of perpetrating one of the biggest banking frauds in history. Mr. Ablyazov, 47, is accused by BTA Bank, which he ran before leaving Kazakhstan in January 2009, of "fraud and embezzlement on an almost unprecedented scale". TEMPUR-PEDIC: Jacob's Petition for En Banc Review Still Pending --------------------------------------------------------------- On January 5, 2007, a purported class action was filed against Tempur-Pedic International Inc. in the United States District Court for the Northern District of Georgia, Rome Division (Jacobs v. Tempur-Pedic International, Inc. and Tempur-Pedic North America, Inc., or the Antitrust Action). The Antitrust Action alleges violations of federal antitrust law arising from the pricing of Tempur-Pedic mattress products by Tempur-Pedic North America and certain distributors. The action alleges a class of all purchasers of Tempur-Pedic mattresses in the United States since January 5, 2003, and seeks damages and injunctive relief. Count Two of the complaint was dismissed by the court on June 25, 2007, based on a motion filed by the Company. Following a decision issued by the United States Supreme Court in Leegin Creative Leather Prods., Inc. v. PSKS, Inc. on June 28, 2007, the Company filed a motion to dismiss the remaining two counts of the Antitrust Action on July 10, 2007. On December 11, 2007, that motion was granted and, as a result, judgment was entered in favor of the Company and the plaintiffs' complaint was dismissed with prejudice. On December 21, 2007, the plaintiffs filed a "Motion to Alter or Amend Judgment," which was fully briefed. On May 1, 2008, that motion was denied. Jacobs appealed the dismissal of their claims, and the parties argued the appeal before the United States Circuit Court for the Eleventh Circuit on December 11, 2008. The Court rendered an opinion favorable to the Company on December 2, 2010, affirming the trial court's refusal to allow Jacobs to alter or amend its pleadings and dismissing its claims. Jacobs has subsequently petitioned the 11th Circuit Court of Appeals for an "en banc" review of the three judge panel's ruling. The Company continues to strongly believe that the Antitrust Action lacks merit, and intends to defend against the claims vigorously. Based on the findings of the court to date and an assessment of the Company's meritorious defenses, the Company believes that it is remote that it will incur a loss with respect to this matter. However, due to the inherent uncertainties of litigation, the Company cannot predict the outcome of the Antitrust Action at this time, and can give no assurance that these claims will not have a material adverse affect on the Company's financial position or results of operations. No further updates were reported in the Company's January 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended December 31, 2011. TIBCO SOFTWARE: Appeals From IPO Suit Settlement Order Dismissed ---------------------------------------------------------------- Appeals from the order approving settlement of a consolidated lawsuit arising from TIBCO Software Inc.'s public offerings have been dismissed, according to the Company's January 30, 2012, Form 10-K filing with the U.S. Securities and Exchange Commission for the year ended November 30, 2011. The Company, certain of its directors and officers, and certain investment bank underwriters were named in a putative class action for violation of the federal securities laws in the United States District Court for the Southern District of New York, captioned "In re TIBCO Software Inc. Initial Public Offering Securities Litigation." This was one of a number of cases challenging underwriting practices in the initial public offerings (each, an "IPO") of more than 300 companies, which have been coordinated for pretrial proceedings as "In re Initial Public Offering Securities Litigation." Plaintiffs generally alleged that the underwriters engaged in undisclosed and improper underwriting activities, namely the receipt of excessive brokerage commissions and customer agreements regarding post-offering purchases of stock in exchange for allocations of IPO shares. Plaintiffs also alleged that various investment bank securities analysts issued false and misleading analyst reports. The complaint against the Company claimed that the purported improper underwriting activities were not disclosed in the registration statements for the Company's IPO and secondary public offering and sought unspecified damages on behalf of a purported class of persons who purchased the Company's securities or sold put options during the time period from July 13, 1999, to December 6, 2000. A lawsuit with similar allegations of undisclosed improper underwriting practices, and part of the same coordinated proceedings, was filed against Talarian, which the Company acquired in 2002. That action was captioned "In re Talarian Corp. Initial Public Offering Securities Litigation." The complaint against Talarian, certain of its underwriters and certain of its former directors and officers claimed that the purported improper underwriting activities were not disclosed in the registration statement for Talarian's IPO and sought unspecified damages on behalf of a purported class of persons who purchased Talarian securities during the time period from July 20, 2000, to December 6, 2000. The coordinated litigation matters, including the actions against the Company and Talarian, have been resolved by a global settlement. Under the settlement, the insurers pay the full amount of settlement share allocated to the Company (the Company's financial liability is limited to paying the remaining balance of the applicable retention under Talarian's directors and officers liability insurance policy). The settlement received final approval from the district court in 2009. Various objectors to the settlement filed appeals; those appeals have been dismissed. TUESDAY MORNING: Bid to Certify Class in Alabama Suit Pending ------------------------------------------------------------- In July 2009, a lawsuit against Tuesday Morning Corporation alleging failure to pay overtime compensation was filed in Alabama by a former store manager. The plaintiff sought to certify a class action made up of current and former store managers. In fiscal 2010, the Company filed a request with the court to deny this motion. The court has not ruled, and no trial date has been set. The Company says it will rigorously defend its position at trial, and it does not expect these complaints to have a material impact on its results of operations or financial position. No further updates were reported in the Company's January 30, 2012, Form 10-Q filing with the U.S. Securities and Exchange Commission for the quarter ended December 31, 2011. UNITED STATES: Schwab Sues FINRA Over Class Action Waiver --------------------------------------------------------- Courthouse News Service reports that Charles Schwab & Co. claims the Financial Industry Regulatory Authority can't sanction it for its class action waiver in customer arbitration agreements, because of the U.S. Supreme Court rulings in AT&T Mobility v Concepcion (2011) and Compucredit Corp. v Greenwood (2012). A copy of the Complaint for Declaratory and Preliminary and Permanent Injunctive Relief Charles Schwab & Co., Inc. v. Financial Industry Regulatory Authority, Inc., Case No. 12-cv- 00518 (N.D. Calif.), is available at: http://www.courthousenews.com/2012/02/02/Schwab.pdf The Plaintiff is represented by: Gilbert R. Serota, Esq. Simona A. Agnolucci, Esq. Deborah Schlosberg, Esq. ARNOLD & PORTER LLP 3 Embarcadero Center, 7th Floor San Francisco, CA 94111-4024 Telephone: (415) 434-1600 E-mail: gilbert.serota@aporter.com simona.agnolucci@aporter.com deborah.schlosberg@aporter.com - and - Lowell Haky, Esq. 211 Main Street San Francisco, CA 94105 Telephone: (415) 667-0622 VIVENDI: Investor Class Action Dismissed ---------------------------------------- Chris Forrester, writing for Advanced Television, reports that a class action lawsuit from Vivendi investors who bought into the company when it was being run by Jean-Marie Messier some 10 years ago, has been largely dismissed. The action, before US District Judge Richard Holwell in Manhattan, argued that Mr. Messier and his CFO at the time (Guillaune Hannezo) made materially false or misleading statements about the company's health following Vivendi's three-way merger in 2000 with Seagram and Canal Plus. The judge's decision revolved around the precedent established in 1934, and confirmed again in 2010, and which limited actions to events involving US-based securities. These actions were based on statements made covering Paris-based shares, even though many of the applicants bought US Depository Shares. WAL-MART STORES: Women Employees File Discrimination Suit --------------------------------------------------------- Cohen Milstein Sellers & Toll PLLC and the Impact Fund disclosed that in a move to protect their right to pursue individual and class action pay and promotion claims against Wal-Mart Stores, Inc., more than 500 former and current Wal-Mart women employees who had been part of a national class action lawsuit have filed a charge of discrimination against the retailer with the U.S. Equal Employment and Opportunity Commission (EEOC) as of Jan. 27. That was the deadline for women in five states -- Alabama, Arkansas, Georgia, Mississippi and North Carolina -- to pursue their claims, according to plaintiffs' attorneys Joseph Sellers, Cohen Milstein Sellers & Toll PLLC, and Brad Seligman, the Impact Fund, who represent the women. The vast majority of the EEOC charges -- some 430 -- were filed in those states since the June 2011 U.S. Supreme Court decision reversing a lower court ruling certifying class action against Wal-Mart. Women in all other states who previously filed class action claims against Wal-Mart, and its subsidiary Sam's Club, have until May 25, 2012, to file a claim with the EEOC. "The Supreme Court did not give Wal-Mart a free pass to discriminate. Filing an EEOC claim is one more way current and former women employees of Wal-Mart can assert their rights," Messrs. Sellers and Seligman said in a statement. More than 12,000 women have contacted plaintiffs' counsel directly or through the informational website, www.walmartclass.com, to discuss pursuing claims of gender-based pay and promotion discrimination. Even in the five states with the Jan. 27, 2012, filing deadline, women with pay and promotion discrimination charges against Wal-Mart from July 2011-on can file EEOC claims against the company. "These EEOC charges are just the down-payment -- we expect to file thousands of additional charges by the May 25, 2012 deadline. We urge women throughout the country who feel they have been discriminated against by Wal-Mart in pay and promotions to log onto the www.walmartclass.com site and register," said Mr. Seligman. Regional class action lawsuits on behalf of women plaintiffs who worked in California and Texas region Wal-Mart stores were filed in federal courts in those states in October 2011. An expanded class action was filed in Texas federal court in January 2012. For information about the case or EEOC discrimination filings against Wal-Mart Stores, Inc., visit http://www.walmartclass.com WARNOCK DODGE: Class Action Settlement Obtains Final Approval ------------------------------------------------------------- A class action settlement of more than $3 million against two Morris County car dealerships, Warnock Dodge and Warnock Ford was granted final approval on Feb. 2 by Judge David B. Rand, Presiding Judge Civil Division of the New Jersey Superior Court in Morristown. The settlement resolves three consolidated class actions alleging the dealerships charged customers unlawful fees, including registration fee overcharges and documentary service fees. Class members, who are represented by the Wolf Law Firm, LLC of North Brunswick and The Law Offices of Glen H. Chulsky of Ledgewood, will receive cash payments of $40 to $111 per vehicle purchased depending on the type of unlawful fee allegedly charged. The settlement follows the New Jersey Supreme Court's 2009 decision in one of the actions, Bosland v. Warnock Dodge, et al., in which the Court rejected the dealership's argument that a business cannot be sued for unlawful overcharges under New Jersey's Consumer Fraud Act unless the consumer first demands a refund and is refused. The Court explained that requiring consumers to request a refund before filing a lawsuit would mean that "merchants would be free to violate the [Consumer Fraud Act], providing refunds only to those consumers savvy enough to request them . . . " The Court also noted that a pre-lawsuit request requirement would also effectively preclude these rare, "savvy" customers from bringing class actions on behalf of the vast majority of customers who did not realize they were overcharged, writing, "When confronted, as we are here, with a plaintiff who asserts that she was the victim of an overcharge which itself is small in amount, and who seeks recovery for herself and on behalf of numerous others with 'nominal' claims, we cannot overlook the reality that, without the remedy that the CFA affords, all of these wrongs might go unvindicated." The Wolf Law Firm and Law Office of Glen H. Chulsky were also counsel on the appeal. WEST ELM: Recalls 5,750 Overarching Floor Lamps Due to Shock Risk ----------------------------------------------------------------- The U.S. Consumer Product Safety Commission, in cooperation with West Elm, a division of Williams-Sonoma Inc., of San Francisco, California, announced a voluntary recall of about 5,750 Overarching 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. A short circuit can occur in the lamp's wiring, posing a shock hazard to consumers. The firm is aware of at least 39 reports of short circuits in the lamp, including three reports of shock, one report of a minor burn to a consumer's finger and two reports of minor property damage. The Overarching Floor Lamp is 77 inches tall with a 19-inch diameter base and a curving arm that extends the lamp about 5 feet from the base. The arm and base are made of polished nickel. It was sold with a linen shade in the colors natural, white or charcoal. The lamp has a three-way on/off switch. A picture of the recalled products is available at: http://www.cpsc.gov/cpscpub/prerel/prhtml12/12100.html The recalled products were manufactured in China and sold by West Elm retail stores nationwide, West Elm catalogs and westelm.com from March 2011 through November 2011 for about $250. Consumers should immediately stop using the lamp and return it to West Elm for a full store credit. For additional information, contact West Elm toll-free at (855) 236-1941 between 7:00 a.m. and midnight Eastern Time seven days a week, or visit the firm's Web site at http://www.westelm.com/ * Robin Ellison Launches Class Action Tort Recovery Association --------------------------------------------------------------- Jenna Towler, writing for Professional Pensions, reports that former chairman of the National Association of Pension Funds Robin Ellison has launched a group to help pension funds and investment managers recover their "fair share" of security class actions. The International Institutional Tort Recovery Association will allow pension funds and investment managers to join the Europe- wide group to take part in the lawsuits. Security class actions have been part of the US legal landscape for 30 to 40 years and cover investment fraud and misrepresentation. Mr. Ellison said UK pension funds have been wary of taking part in the past, but could be missing out on their share of pay-outs. Mr. Ellison told PP: "There's money on the table and the problem with money on the table is if you don't claim it the other guys get it. For instance with three people -- A, B and C -- if C doesn't claim it A and B get the extra. So you might as well put your claim in if there's money on the table." He said the iiTRA would bring some respectability to the lawsuits and would not pursue "specious cases", but members would benefit through collective access to lawyers and case knowledge. Mr. Ellison said the group was an exercise in corporate governance, arguing that pension funds should push for action when they find a company is misbehaving. He said: "In America the shareholders have no vote and that's why as a corporate governance exercise they use litigation more than they do here." The iiTRA chairman said he hoped four or five pension funds or investment managers would join the association in the first year, reaching a couple of 100 by 2017 or 2018. He said it would be beneficial for pension funds with more than a billion pounds under management. Membership will cost between GBP25,000 and GBP100,000 a year depending on the size of the fund but Mr. Ellison said schemes could expect to recover GBP100,000 up into the millions. In 2011, settlements of class action cases in the US alone topped GBP100 billion. ********* 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 * * *