/raid1/www/Hosts/bankrupt/CAR_Public/120214.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, February 14, 2012, Vol. 14, No. 31
Headlines
AMERICAN EXPRESS: Class Action Waiver Unenforceable, Court Rules
AMERICAN HONDA: Peters Wants Hybrid Owners to File Own Claims
APPLIED MICRO: Appeals From Settlement of Suit vs. JNI Pending
BEAR STERNS: Plaintiffs Must Reveal Identities of Witnesses
BRAIN RESEARCH: Class Action Lawyer Can't Use Anti-SLAPP Law
BRINKER INTERNATIONAL: Calif. Sup. Ct. Ruling Expected in April
BSH HOME: Recalls 1,735,000 Tassimo Single-Cup Coffee Makers
CITY OF CHICAGO: Judge Settles Class Action for $6.2 Million
CORVEL CORP: Seeks Dismissal of Claims in "Williams" Class Suit
CORVEL CORP: To Complete "Roche" Suit Settlement Payments by July
FELTEX: More Shareholders Join Class Action Over Losses
GOV'T OF QUEBEC: Faces C$200-Mil. Class Action Over Flooding
HUMANA INSURANCE: Faces Class Action Over Unpaid Overtime
IMH FINANCIAL: Signs MOU to Settle Loan Fund Unitholders Suit
INTUITIVE SURGICAL: Motion to Dismiss "Perlmutter" Suit Pending
KEYPOINT GOVERNMENT: Accused of Not Paying Overtime Wages
KRAFT FOODS: Recalls 4,000,000 Tassimo Espresso T Discs
LEO PHARMA: Sanford Wittels Files Overtime Class Action
LOGITECH INTERNATIONAL: Complaint in Securities Suit Amended
LOUISIANA CITIZENS: Offers to Settle Hurricane Katrina Claims
MERITOR INC: Stay on Discovery Vacated in Automotive Filters Suit
NAT'L FOOTBALL LEAGUE: Kevin Turner Joins Concussion Suit
STATE OF NEW HAMPSHIRE: Mentally Ill Advocates File Class Action
TELENAV INC: Final Hearing on "Smith" Suit Settlement on Feb. 24
TRANS UNION: Sued in Calif. Over Violations of FCRA and CCRAA
UNITED STATES: Veterans Seek Class Certification in Suit v. CIA
WHOLE FOODS: Judge Denies Class Certification in Antitrust Suit
*********
AMERICAN EXPRESS: Class Action Waiver Unenforceable, Court Rules
----------------------------------------------------------------
Securities Law Prof Blog reports that in a victory for consumer
and investor advocates, the Second Circuit reaffirmed its decision
in In re American Express Merchants' Litigation, 634 F.3d 187 (2d
Cir. 2011) (Amex II) that the class action waiver provision
contained in the contracts between American Express and merchants
is unenforceable under the Federal Arbitration Act (FAA), because
enforcement of the clause would as a practical matter preclude any
action seeking to vindicate the statutory rights asserted by the
plaintiffs. The Second Circuit ruled that the U.S. Supreme
Court's recent opinion in AT&T Mobility v. Concepcion did not
alter its analysis. In re American Express Merchants' Litigation
(Amex III) (2d Cir. Feb. 1, 2012)
The Second Circuit has now issued three opinions on this question,
necessitated by recent Supreme Court pronouncements. In Amex I,
554 F.3d 300 (2d Cir. 2009), the court considered the enforcement
of a mandatory arbitration clause in a commercial contract that
also contained a class action waiver and determined that it was
unenforceable. The court reasoned that the high costs of
litigating an antitrust claim ruled out individual claims and
meant that without a class action plaintiffs would have no remedy.
The Supreme Court granted Amex's petition for certiorari and
vacated and remanded in light of its decision in Stolt-Nielsen
S.A. v. AnimalFeeds Int'l Corp., 130 S. Ct. 1758 (2010), which
held that parties could not be compelled to submit to class
arbitration unless they agreed to it. In Amex II, the Second
Circuit found that Stolt-Nielsen did not affect its original
analysis, since the court acknowledged that it could not, and thus
were not, ordering the parties to participate in class
arbitration. After Amex II, the court placed a hold on its
mandate in order for Amex to file a petition for certiorari.
While the mandate was on hold, the Supreme issued Concepcion,
which held that the FAA preempted a California law barring
enforcement of class action waivers in consumer contracts. The
Second Circuit then sua sponte considered rehearing in light of
Concepcion, and parties submitted supplemental briefing on the
question.
In Amex III, the Second Circuit, in response to Amex's argument
that Concepcion applies a fortiorari and requires reversal,
observes that
"[I]t is tempting to give both Concepcion and Stolt-Nielsen such a
facile reading, and find that the cases render class arbitration
waivers per se enforceable. But a careful reading of the cases
demonstrates that neither one addresses the issue presented here:
whether a class-action arbitration waiver clause is enforceable
even if the plaintiffs are able to demonstrate that the practical
effect of enforcement would be to preclude their ability to
vindicate their federal statutory rights."
"Concepcion plainly offers a path for analyzing whether a state
contract law is preempted by the FAA. Here, however, our holding
rests squarely on a 'vindication of statutory rights analysis,
which is part of the federal substantive law of arbitrability'."
Accordingly, since Concepcion and Stolt-Nielsen do not answer the
question, the Second Circuit looked for guidance in other Supreme
Court decisions addressing the issue of vindicating federal
statutory rights in arbitration. The court begins its analysis
with precedent acknowledging the importance of class actions in
vindicating statutory rights and then proceeds to a discussion of
arbitration, also recognized as an effective vehicle for
vindicating statutory rights, so long as the litigant can
effectively vindicate its statutory cause of action in arbitration
(citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.)
Most recently, in Green Tree Financial Corp.-Alabama v. Randolph,
531 U.S. 79 (2000), the Supreme Court acknowledged in dicta "that
the existence of large arbitration costs could preclude a litigant
. . . from effectively vindicating her federal statutory rights
in the arbitral forum."
Because neither Stolt-Nielsen nor Concepcion overrules Mitsubishi
and neither even mentions Green Tree, the Second Circut, in Amex
III, reaffirms its earlier analysis in Amex II: because
plaintiffs' expert evidence establishes as a matter of law that
the cost of plaintiffs' individually arbitrating their disputes
with Amex would be prohibitive, the effect of enforcing the class-
action waiver is to ensure that the merchants could not challenge
Amex's tying arrangements under the antitrust laws. Accordingly,
the clause is unenforceable under the FAA. The court made clear
that each class-action waiver must be considered on its own
merits, based on its own record and "governed with a healthy
regard for the fact that the FAA 'is a congressional declaration
of a liberal federal policy favoring arbitration agreements . . .
.'"
AMERICAN HONDA: Peters Wants Hybrid Owners to File Own Claims
-------------------------------------------------------------
Jerry Hirsch, writing for Los Angeles Times, reports that there's
a chess game afoot involving three distinct parties in the Honda
Civic hybrid Small Claims Court case.
Each will try to figure out what the nearly $10,000 award to Civic
owner Heather Peters of Los Angeles means to its interests and
will then map out a strategy.
Trial attorneys have issued statements attempting to shore up
support for a class-action litigation settlement between other
Civic hybrid owners and the automaker that would pay the lawyers
$8.5 million.
Honda plans to kick the case up to a Superior Court where it can
use its legal staff to defend itself in a new trial. Attorneys
can't represent parties to Small Claims Court lawsuits in
California and some other states.
Ms. Peters is preparing for that expected new trial and trying to
get other owners to opt out of the class-action settlement and
file their own lawsuits in Small Claims Court.
Ms. Peters was awarded almost $10,000 in damages on Feb. 1 after
proving in a Small Claims Court in Torrance that Honda misled her
when it advertised the fuel economy for her 2006 model-year sedan.
Attorneys for the class-action plaintiffs said their clients --
about 30,000 current and former Civic hybrid owners have elected
to participate -- got a good deal. Owners can still opt out, but
they face a Feb. 11 deadline to do so.
The settlement covers original and subsequent owners of 2003
through 2009 model-year Civic hybrids. Each owner would get $100
in cash and either a $500 transferable voucher, which they could
sell, or a $1,000 non-transferable voucher for a rebate on a new
Honda or Acura.
Owners of the 2006 through 2008 hybrids would get an additional
$100 and an additional $500 rebate voucher that they could use or
sell. Other benefits include an extra year of battery warranty
and the option to seek greater damages through a mediation
service.
William H. Anderson, a Washington, D.C., class-action attorney
involved in the settlement, pointed out in a statement that
Ms. Peters is a former attorney who "has formal legal training and
litigation experience" that helped her pursue the lawsuit.
Even so, Ms. Peters still might lose her award in the next trial.
Of course, Mr. Anderson's risk is that Civic owners will file
objections to the settlement. A previous deal was scuttled after
a different judge ruled that it didn't provide enough in damages
and paid attorneys too much.
A flood of disgruntled owners, especially if they again get the
support of a group of state attorneys general who objected the
first time, could petition the San Diego court to ditch this offer
too. Ms. Peters said she hopes that's what will happen. And she
believes her $10,000 award will embolden other owners to object.
Mr. Anderson said in his statement that "the proposed settlement
has potential advantages over Small Claims Court. If they remain
in the settlement, class members who purchased the same car as
Ms. Peters can take advantage of a built-in alternative dispute
resolution process, which unlike Small Claims Court has no limit
of what the class members can recover."
He also noted that the proposed settlement provides "guaranteed
benefits to any of the nearly 500,000 class members who are
eligible to submit a proof of claim without any additional
requirements," a far lower hurdle than litigating in any
courtroom, even Small Claims Court.
American Honda Motor Co. said it will push the lawsuit to Los
Angeles Superior Court, where it will be heard again. Although
technically not an appeal -- Honda isn't going to try to prove a
flaw with the case -- functionally the maneuver has the same
effect as an appeal.
Honda would be freed from some of the restrictions of Small Claims
Court. For example, it could use attorneys to defend its
marketing of the vehicle in a new trial.
Honda isn't talking about the case, but its hard line indicates
that it believes it has far more than $10,000 at risk. It could
see the negotiated class-action settlement unravel and face paying
more for a new settlement or for a full-blown trial against savvy
trial attorneys representing the claimants.
It might also want to discourage other owners from taking the
Small Claims Court route because it could not use its legal staff
to defend itself in such cases and would have to send non-attorney
representatives to many far-flung courts.
APPLIED MICRO: Appeals From Settlement of Suit vs. JNI Pending
--------------------------------------------------------------
Applied Micro Circuits Corporation acquired JNI Corporation
("JNI") in October 2003. In November 2001, a class action lawsuit
was filed against JNI and the underwriters of its initial and
secondary public offerings of common stock in the U.S. District
Court for the Southern District of New York, case no. 01 Civ 10740
(SAS). The complaint alleged that defendants violated the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
in connection with JNI's public offerings. This lawsuit was among
more than 300 class action lawsuits pending in this District Court
that have come to be known as the "IPO laddering cases." Pursuant
to In re Initial Public Offering Securities Litigation, No. 21 MC
92 (SAS), in mid-2009 a settlement was reached in all of the
cases. In October 2009, the Court issued an order granting final
approval of the settlement and dismissing the case. The
settlement did not have a material impact on the Company. The
Court subsequently issued a final judgment. Several appeals of
the settlement and judgment were filed between October 29 and
November 4, 2009.
Should the settlement be overturned on appeal and the final
judgment vacated, the Company says it could be exposed to
additional liabilities and such liability, if any, could not be
reasonably estimated at this time.
No further updates were reported in the Company's February 6,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended December 31, 2011.
BEAR STERNS: Plaintiffs Must Reveal Identities of Witnesses
-----------------------------------------------------------
The American Lawyer reports that a group of confidential witnesses
cited in a securities class action complaint against Bear Stearns
isn't going to be confidential for much longer. A federal judge
has ruled that plaintiffs lawyers can't rely on the attorney work
product privilege to shield the identities of their witnesses from
Bear Stearns.
BRAIN RESEARCH: Class Action Lawyer Can't Use Anti-SLAPP Law
------------------------------------------------------------
Kate Moser, writing for The Recorder, reports that it's the
medium, not the message, that did in Ropers Majeski Kohn & Bentley
partner Thomas Clarke Jr., two weeks ago.
By posting on YouTube a video in which he solicited plaintiffs for
a class action, the California 1st District Court of Appeal ruled
that he'd opened himself up to a defamation suit and can't use the
state's anti-SLAPP law to ward it off.
The 1st District panel expressed some sympathy with the statements
Mr. Clarke made in the video, in which he reached out to class
members for a suit against the maker of a dietary supplement.
But, in finding the plaintiffs had shown a likelihood of
prevailing on the merits, and that the litigation and common
interest privileges don't apply, the court took issue with his use
of the internet.
"The manner in which Clarke disseminated [his call for
plaintiffs], i.e., by making it available to the general public on
the Internet, provides additional support, in accord with
California case law, for the conclusion we reach here," wrote
Justice Martin Jenkins in the unpublished opinion.
The decision raises questions about the limits of the litigation
privilege, and it also highlights some hot-button questions on the
application of California's anti-SLAPP law that remain unresolved,
say appellate specialists who keenly track developments in that
law.
Kerr & Wagstaffe partner James Wagstaffe, who represents
Mr. Clarke and the firm, said they're "disappointed" that the
court didn't apply long-held privileges for lawyers soliciting
clients.
"Those communications have long been held to be part of the
litigation privilege," Mr. Wagstaffe said. "The only difference
here was the communication took place on YouTube rather than in a
meeting. In our view, that raises a cutting-edge issue."
Supporters of a broad interpretation of the anti-SLAPP statute --
which was designed to protect free speech and public participation
-- say the opinion exemplifies how plaintiffs are capitalizing on
the confusion in the courts of appeal to make it harder for
defamation defendants to block suits over protected activities by
using the anti-SLAPP statute.
"It's becoming more and more common for plaintiffs lawyers to try
to combine different allegations together in a way that's
specifically designed to insulate a complaint from an anti-SLAPP
motion," said Horvitz & Levy partner Jeremy Rosen, who's not
involved in the case but has handled anti-SLAPP appeals.
The plaintiff in the case is a litigation adversary of Mr.
Clarke's. He targeted Brain Research Labs as the maker of
Procera, which purported to help consumers with "forgetfulness,
fuzzy focus and attention, mood swings and mental fatigue brought
on by stress, sleep loss, poor diet and aging."
Mr. Clarke filed a class action complaint in 2009, alleging that
the company had made false and misleading statements about
Procera, that it's a dangerous supplement, and that it was an
unapproved drug marketed in violation of state and federal
regulations. Mr. Clarke later uploaded a nine-minute video to
YouTube to solicit potential class members who had bought Procera.
Brain Research Labs sued. Its complaint quoted liberally from the
video, for example: "Greetings, I'm Tom Clarke. You probably know
me as the attorney who's very concerned about your health. . . .
These scam artists do not care if you live or die. They only want
you to live long enough to give them your money."
The supplement maker also sued Mr. Clarke and the law firm for
comments he later made about the class action on a KTVU broadcast.
In 2010 San Francisco Superior Court Judge Harold Kahn ruled
against Mr. Clarke and his firm.
"If Clarke's goal is to communicate with potential class members,
there are far more narrowly tailored ways for him to have done
so," Justice Kahn wrote. "Instead, by invoking the 'new media' of
the Internet and its capacity to display videos, Clarke chose, in
a 21st century way, to 'litigate in the press.'"
The 1st District said Justice Kahn got it right -- that Brain
Research Labs had shown a likelihood of prevailing on the merits,
and that the litigation and common interest privileges don't
apply. Because of that, even the KTVU part of the cause of action
survives.
Mr. Wagstaffe contended that Brain Research Labs had engaged in a
clever pleading tactic -- melding the alleged defamations on KTVU
and YouTube into a single cause of action so that it couldn't be
disposed as a SLAPP, or strategic lawsuit against public
participation. He said the court shouldn't have approved that
tactic.
"What this opinion says is that as long as any part of the claim
has merit, then the entire cause of action stays," Mr. Rosen said.
"I think that's incorrect. It allows on the back end what courts
have said what you can't do on the front end."
A lawyer for Brain Research Labs celebrated the 1st District's
decision on Jan. 27, saying the firm and its client were
"extremely pleased" with the ruling.
"The court of appeal's analysis of the privileges asserted by the
defendants versus protection from defamation, especially in such a
public forum as the worldwide Internet, strikes an appropriate
balance in upholding the rights of all parties," wrote Jan Yoss,
of Los Angeles firm Younesi & Yoss, in an e-mail. "We have always
maintained that the comments in the YouTube video went well beyond
any recognized protections, particularly the litigation privilege,
and we believe that the court of appeal's decision validated this
contention."
Mr. Wagstaffe said his clients expect to appeal and are hopeful
the California Supreme Court will grant review.
"It's an important issue for anti-SLAPP law and it's an important
issue for lawyers," Mr. Wagstaffe said. "We'll defend this case
vigorously."
Mr. Wagstaffe can be reached at:
James Wagstaffe, Esq.
KERR & WAGSTAFFE LLP
100 Spear Street, 18th Floor
San Francisco, CA 94105-1576
Telephone: (415) 371-8500
E-mail: wagstaffe@kerrwagstaffe.com
BRINKER INTERNATIONAL: Calif. Sup. Ct. Ruling Expected in April
---------------------------------------------------------------
A ruling is expected from the California Supreme Court by the end
of April 2012 relating to an appeal from a class decertification
order, according to Brinker International, Inc.'s February 6,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended December 28, 2011.
Certain current and former hourly restaurant team members filed a
lawsuit against the Company in California Superior Court alleging
violations of California labor laws with respect to meal and rest
breaks. The lawsuit seeks penalties and attorney's fees and was
certified as a class action in July 2006. In July 2008, the
California Court of Appeal decertified the class action on all
claims with prejudice. In October 2008, the California Supreme
Court granted a writ to review the decision of the Court of Appeal
and oral arguments were heard by the California Supreme Court in
November 2011. A ruling on the case is expected by the end of
April 2012.
The Company says it intends to vigorously defend its position. It
is not possible at this time to reasonably estimate the possible
loss or range of loss, if any.
BSH HOME: Recalls 1,735,000 Tassimo Single-Cup Coffee Makers
------------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with BSH Home Appliances Corp., of Irvine, California,
announced a voluntary recall of about 835,000 Tassimo Single-Cup
Brewers in the United States of America and an additional 900,000
in Canada. Consumers should stop using recalled products
immediately unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
The plastic disc, or T Disc, that holds the coffee or tea can
burst and spray hot liquid and coffee grounds or tea leaves onto
consumers using the brewer and onto bystanders, posing a burn
hazard.
There have been 140 reports of incidents with the brewers spraying
hot liquid, coffee grounds or tea leaves onto consumers, including
37 reports of second-degree burn injuries. One incident involved
a 10-year-old girl from Minnesota who received second-degree burns
to her face and neck and had to be hospitalized.
This recall involves Tassimo brewers with the Bosch brand name and
Tassimo Professional brewers. The brewers use plastic T Discs
that are filled with coffee or tea to brew hot drinks. "BOSCH"
and "TASSIMO" are printed on the front of the brewers. "TASSIMO
PROFESSIONAL" is printed on the front of the professional model.
The Bosch-brand brewers were sold in black, white, anthracite,
gray, silver, red, titanium and white/gray colors. The Tassimo
Professional brewers were only sold in black. The following model
numbers and date codes are included in this recall. The model
number and date code are located on the bottom of the brewer. No
other Tassimo brewer is included in this recall.
Model Numbers Date Codes Beginning with
Brand That Begin With: FD and Within the Range of:
----- ---------------- ---------------------------
Bosch(R) TAS100 FD 8806 through 9109
Bosch(R) TAS200 FD 8806 through 9109
Bosch(R) TAS451 FD 8806 through 9109
Bosch(R) TAS46 FD 8806 through 9109
Bosch(R) TAS651 FD 8806 through 9109
Tassimo TAS6512CUL FD 8905 through 9109
Professional
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12106.html
The recalled products were manufactured in Slovenia and China and
sold at department, mass merchandise and home improvement stores
nationwide and on various Web sites, including
http://www.tassimodirect.com/,from June 2008 through February
2012 for between $100 and $250. The Tassimo Professional model
was sold directly to hotels and food service providers and they
are being contacted directly.
Consumers should immediately stop using the recalled Tassimo
brewers and contact the firm to order a free replacement T Disc
holder for the brewing mechanism. For additional information,
visit http://www.tassimodirect.com/safetyrecall/to order a free
replacement T Disc holder or contact the firm toll-free at (866)
918-8763 between 8:00 a.m. and 8:00 p.m. Eastern Time Monday
through Friday or between 8:00 a.m. and 1:00 p.m. Eastern Time
Saturday.
CITY OF CHICAGO: Judge Settles Class Action for $6.2 Million
------------------------------------------------------------
David Heinzmann, writing for Chicago Tribune's Clout Street,
reports that lawyers for the city of Chicago told a federal judge
on Feb. 9 that they have reached a $6.2 million settlement with
more than 800 plaintiffs in a class action lawsuit stemming from
the mass arrests of protesters during a 2003 demonstration against
the Iraq war.
The issues in the case played a role in city officials'
examination of how they handle large demonstrations in the months
leading up to the G-8 and NATO summits, which could attract tens
of thousands of demonstrators to the city in May.
Lawyers for the city said payouts in the suit would not be
introduced to City Council until June. In a smaller case stemming
from the same demonstration, city officials reached a settlement
last month but said the amount would not be released until the
settlements are introduced for council for approval.
The city's defense in the case was weakened last year when federal
appellate Justice Richard Posner ruled the arrests were
unjustified because police allowed the massive demonstration to
take place without a permit, but then decided to arrest people for
participating without giving them a clear order that it was time
to disperse.
Hundreds of people became trapped by police at Chicago and
Michigan avenues. Confused demonstrators who said they just
wanted to go home were instead arrested and held overnight. All
of the arrest charges were later dismissed in court, Justice
Posner noted.
People who were arrested, charged and detained would receive
payouts of up to $15,000 under the proposed settlement and those
arrested but not charged would receive payments of up to $8,750.
Those where detained at the scene but not arrested may get up to
$500, said Joey Mogul, one of the lawyers for the plaintiffs.
U.S. District Judge Virginia Kendall accepted the proposed
settlement and set a date next month to discuss attorney fees,
which were not included in the proposal and would likely boost the
city's total costs.
The message to the city is that "it is very costly, both
politically and economically, to deny people their First Amendment
rights," said Melinda Power, one of the lawyers for the
plaintiffs. "We didn't want to have to bring this lawsuit, and we
don't want to have to bring other lawsuits.
"And we're sorry that the people of the city of Chicago will be
having to pay a lot of money because the city of Chicago falsely
arrested people and then refused for nine years to settle this
case, causing people to spend millions of dollars."
CORVEL CORP: Seeks Dismissal of Claims in "Williams" Class Suit
---------------------------------------------------------------
CorVel Corporation has begun to move for dismissal of all claims
covered by the settlement of the class action lawsuit filed by
George Raymond Williams, according to the Company's February 6,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended December 31, 2011.
On March 25, 2011, George Raymond Williams, MD. ("Williams"), as
plaintiff, individually and on behalf of those similarly situated,
filed a First Amended and Restated Petition for Damages and Class
Certification in the 27th Judicial District Court, Parish of St.
Landry, Louisiana, against CorVel Corporation ("CorVel") and its
insurance carriers, Homeland Insurance Company of New York and
Executive Risk Specialty Insurance Company and several other
unrelated parties. Williams alleges that CorVel violated
Louisiana's Any Willing Provider Act (the "AWPA"), which requires
a payor accessing a preferred provider contract to give 30 days'
advance written notice or point of service notice in the form of a
benefit card before the payor accesses the discounted rates in the
contract to pay the provider for services rendered to an insured
under that payor's health benefit plan.
On March 31, 2011, CorVel entered into a Memorandum of
Understanding with attorneys representing the plaintiffs and the
class setting forth the terms of settlement of this class action
lawsuit. The Memorandum of Understanding provides that subject to
the execution of a mutually acceptable settlement agreement and
final non-appealable approval of such settlement by the Louisiana
state court, CorVel will pay $9 million to resolve claims for
which CorVel recorded a $9 million pre-tax charge to earnings
during the March 2011 quarter. In addition, CorVel will assign to
the class certain rights it has to the proceeds of CorVel's
insurance policies relating to the claims asserted by the class.
The class action arbitration filed with the American Arbitration
Association against CorVel in December 2006 by Southwest Louisiana
Hospital Association dba Lake Charles Memorial Hospital as
previously disclosed by CorVel is encompassed within the
settlement terms of the Memorandum of Understanding. Pursuant to
the Memorandum of Understanding, the parties have also agreed to
request that the appropriate courts stay all related proceedings
in State and Federal Court, as well as the Louisiana Office of
Workers Compensation and the arbitration proceeding before the
American Arbitration Association in which the parties are named,
until the settlement agreement is prepared, executed and receives
final court approval. The settlement does not constitute an
admission of liability.
On June 23, 2011, CorVel and class counsel executed a definitive
settlement agreement. The settlement agreement contains the same
terms and conditions as were set forth in the Memorandum of
Understanding. Accordingly, CorVel made a $9 million cash payment
into escrow on July 6, 2011. As set forth in the settlement
agreement, certain contingencies such as preliminary court
approval, resolutions of objections filed by class members
challenging the fairness of the settlement, class members excluded
from the settlement not exceeding a materiality threshold, and
final court approval, must be satisfied before the settlement can
become final.
On June 23, 2011, the 27th Judicial District Court for the Parish
of St. Landry, Louisiana granted preliminary approval of
settlement and set a deadline of October 16, 2011, for parties to
opt out of or object to the proposed settlement. Notice of the
settlement was given to Class Members. The Court gave final
approval of the settlement on November 4, 2011. No appeal has
been filed since that time, so the judgment became final on
January 17, 2012. CorVel has begun to move for dismissal of all
claims covered by the settlement in state and federal court.
In exchange for the settlement payment by CorVel, class members
will release CorVel and all of its affiliates and clients for any
claims relating in any way to re-pricing, payment for, or
reimbursement of a workers' compensation bill, including but not
limited to claims under the AWPA. Plaintiffs have also agreed to
a notice procedure that CorVel may follow in the future to comply
with the AWPA.
CORVEL CORP: To Complete "Roche" Suit Settlement Payments by July
-----------------------------------------------------------------
Remaining payments to class members in connection with the
settlement of a putative class action lawsuit filed by Kathleen
Roche will be completed by July 2012, according to CorVel
Corporation's February 6, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
December 31, 2011.
In February 2005, Kathleen Roche, D.C., as plaintiff, filed a
putative class action in the Circuit Court for the 20th Judicial
District, St. Clair County, Illinois, against the Company. The
case sought unspecified damages based on the Company's alleged
failure to direct patients to medical providers who were members
of the CorVel CorCare PPO network and also alleged that the
Company used biased and arbitrary computer software to review
medical providers' bills. The Company denies that its conduct was
improper in any way and denied all liability. On October 29,
2010, the Company entered into a settlement agreement providing
for the payment of $2.1 million to class members and up to an
additional $700,000 for attorneys' fees and expenses, and as a
result the Company accrued $2.8 million of estimated liability for
this settlement agreement during the quarter ended
September 30, 2010. In exchange for the settlement payment by the
Company, class members consisting of Illinois medical providers
(excluding hospitals) have released the Company and all of its
affiliates for claims relating to any PPO or usual and customary
reductions recommended by the Company on class members' medical
bills. On January 21, 2011, the Circuit Court gave final approval
to the settlement and awarded class counsel $700,000 in attorneys'
fees and expenses. A modified final judgment approving the
settlement and addressing certain class notice issues was approved
on January 20, 2012; the modified judgment did not change the
financial terms of the settlement or the release. Initial
payments were sent to class members on July 18, 2011, and the
remaining payments to class members should be completed by July
2012.
FELTEX: More Shareholders Join Class Action Over Losses
-------------------------------------------------------
Duncan Bridgeman, writing for The National Business Review,
reports that a further 800 Feltex shareholders have joined a class
action seeking to recover losses following the carpet maker's
demise.
The new claimants join 1,800 shareholders, who had already opted
in to the action group, brought by plaintiff Eric Houghton and
organized by Tony Gavigan's Joint Action Funding.
They are targeting seven former directors of Feltex at the time of
the initial public offer in May 2004, the vendors Credit Suisse
First Boston Asian Merchant Partners and Credit Suisse Private
Equity and joint lead float managers, First NZ Capital and Forsyth
Barr.
The Feltex share float raised more than NZ$250 million. But two
years later the firm was placed in liquidation with debts of up to
NZ$40 million.
More than 8000 people, mostly "mum and dad" investors put an
average NZ$15,000 into the company.
There were also large investors, including Australian trust
management company, Hunter Hall, which lost NZ$17 million.
The plaintiffs claim statements in the prospectus were misleading
and there were breaches of the Fair Trading Act and the Securities
Act as well as negligence and breach of fiduciary duty.
A Securities Commission inquiry found the prospectus had not
breached the securities legislation and was not misleading.
The defendants, who deny the claims, have asked for extra time on
their discovery and have been granted an extension to the end of
this month.
Mr. Gavigan said the extra 800-plus shareholders opted in
following a renewed campaign last month.
"We had a good story to send out to all the people who hadn't
opted in the middle of 2010 and we also had the opportunity to
cross-reference different databases that we hadn't had," he said.
"We wrote to the people we identified who, on average, made a loss
of about NZ$10,000."
"It's been very encouraging that people who sat on the sidelines
have taken the opportunity to come on."
He said there was a court call over last week and the group was
hoping to get a first hearing before Easter.
In 2008, the defendants unsuccessfully sought to have the action
struck out on grounds of "champerty," claiming that Mr. Gavigan
stood to make substantial financial gain in success fees should
the action succeed.
GOV'T OF QUEBEC: Faces C$200-Mil. Class Action Over Flooding
-----------------------------------------------------------
CTV Montreal reports that a request for a C$200 million class
action lawsuit on behalf of flood victims in the Richelieu Valley
has been filed against the federal and Quebec government.
Some 8,000 people were affected for several weeks over the summer
in the ten municipalities hit by flooding.
About 3,000 homes were damaged.
According to the application, both governments were aware of the
potential for major flooding but did little to address the
situation, such as dredging the river.
The applicants requested a total of C$150,000 for property damage
and C$50,000 for moral damages.
The amounts could be revised upwards, if necessary.
Alain Arsenault, the lawyer leading the suit, said governments
must assume part of the responsibility for the floods.
The Quebec government has estimated the costs of flooding to more
than C$40 million.
HUMANA INSURANCE: Faces Class Action Over Unpaid Overtime
---------------------------------------------------------
Courthouse News Service reports that Humana Insurance does not pay
overtime to clinical nurse advisors and other workers, a class
claims in Federal Court.
A copy of the Complaint in Schroeder, et al. v. Humana Inc., et
al., Case No. 12-cv-00137 (E.D. Wis.), is available at:
http://www.courthousenews.com/2012/02/09/humana.pdf
The Plaintiffs are represented by:
Robert L. Schug, Esq.
NICHOLS KASTER, PLLP
One Embarcadero Center, Suite 720
San Francisco, CA 94111
Telephone: (415) 277-7235
E-mail: rschug@nka.com
- and -
Rachhana T. Srey, Esq.
Paul J. Lukas, Esq.
NICHOLS KASTER, PLLP
4600 IDS Center
80 South 8th Street
Minneapolis, MN 55402
Telephone: (612) 256-3200
E-mail: srey@nka.com
lukas@nka.com
IMH FINANCIAL: Signs MOU to Settle Loan Fund Unitholders Suit
-------------------------------------------------------------
On January 31, 2012, IMH Financial Corporation reached a tentative
settlement in principle to resolve all claims asserted by the
plaintiffs in the putative class action lawsuit captioned In re
IMH Secured Loan Fund Unitholders Litigation, pending in the Court
of Chancery in the State of Delaware against IMH, certain
affiliated and predecessor entities, and certain former and
current officers and directors of IMH, other than the claims of
one plaintiff, the Company disclosed in its February 6, 2012, Form
8-K filing with the U.S. Securities and Exchange Commission.
The tentative settlement in principle, memorialized in a
Memorandum of Understanding ("MOU"), is subject to certain class
certification conditions, confirmatory discovery and final court
approval (including a fairness hearing). The MOU contemplates a
full release and settlement of all claims, other than the claims
of the one non-settling plaintiff, against IMH and the other
defendants in connection with the claims made in the Litigation.
These are some of the key elements of the tentative settlement:
-- IMH will offer $20.0 million of 4% five-year subordinated
notes to members of the Class in exchange for 2,493,765
shares of IMH common stock at an exchange rate of $8.02 per
share;
-- IMH will offer to Class members that are accredited
investors $10.0 million of convertible notes with the same
economic terms as the convertible notes previously issued
to NWRA Ventures I, LLC;
-- IMH will deposit $1.645 million in cash into a settlement
escrow account (less $300,000 to be held in a reserve
escrow account that is available for use by IMH to fund its
defense costs for other unresolved litigation) which will
be distributed (after payment of notice and administration
costs and any amounts awarded by the Court for attorneys'
fees and expense) to Class members in proportion to the
number of IMH shares held by them as of June 23, 2010;
-- IMH will enact certain agreed upon corporate governance
enhancements, including the appointment of two independent
directors to the IMH board of directors upon satisfaction
of certain conditions (but in no event prior to
December 31, 2012) and the establishment of a five-person
investor advisory committee (which may not be dissolved
until such time as IMH has established a seven-member board
of directors with at least a majority of independent
directors); and
-- provides additional restrictions on the future sale or
redemption of IMH common stock held by certain IMH
executive officers.
IMH has vigorously denied, and continues to vigorously deny, that
it has committed any violation of law or engaged in any of the
wrongful acts that were alleged in the Litigation, but believes it
is in the best interests of IMH and its stockholders to eliminate
the burden and expense of further litigation and to put the claims
that were or could have been asserted to rest.
There can be no assurance that the court will approve the
tentative settlement in principle. Further, the judicial process
to ultimately settle this action is estimated to take a minimum of
six to nine months or longer. If not approved, the tentative
settlement as outlined in the MOU may be terminated and IMH will
continue to vigorously defend this action.
INTUITIVE SURGICAL: Motion to Dismiss "Perlmutter" Suit Pending
---------------------------------------------------------------
Intuitive Surgical, Inc.'s motion to dismiss the amended complaint
in a securities class action lawsuit remains pending, according to
the Company's February 6, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
On August 6, 2010, a purported class action lawsuit entitled
Perlmutter v. Intuitive Surgical et al., No. CV10-3451, was filed
against the Company and seven of the Company's current and former
officers and directors in the United States District Court for the
Northern District of California. The lawsuit seeks unspecified
damages on behalf of a putative class of persons who purchased or
otherwise acquired the Company's common stock between February 1,
2008, and January 7, 2009. The complaint alleges that the
defendants violated federal securities laws by making allegedly
false and misleading statements and omitting certain material
facts in the Company's filings with the Securities and Exchange
Commission. On February 15, 2011, the Police Retirement System of
St. Louis was appointed Lead Plaintiff in the case pursuant to the
Private Securities Litigation Reform Act of 1995. An amended
complaint was filed on April 15, 2011, making allegations
substantially similar to the original allegations. On May 23,
2011 the Company filed a motion to dismiss the amended complaint.
On August 10, 2011 that motion was granted and the action was
dismissed; the plaintiffs were given 30 days to file an amended
complaint. On September 12, 2011, plaintiffs filed their amended
complaint. The allegations contained therein are substantially
similar to the allegations in the prior complaint. The Company
filed a motion to dismiss the amended complaint. A hearing on
that motion has not yet occurred.
KEYPOINT GOVERNMENT: Accused of Not Paying Overtime Wages
---------------------------------------------------------
Donald Lounibos, on behalf of himself and all others similarly
situated v. Keypoint Government Solutions, Inc., a Delaware
Corporation and Does 1-10, inclusive, Case No. 3:12-cv-00636 (N.D.
Calif., February 9, 2012) accuses the Defendant of not paying the
Plaintiff's overtime fees.
As an investigator for the Defendant, the Plaintiff asserts that
he was frequently unable to complete his assigned tasks within an
eight-hour work day and had to work in excess of that time. He
contends that he requested payment of overtime wages from the
Defendant on numerous occasions but he was denied such
compensation.
Mr. Lounibos was employed by the Defendant as an investigator from
around September 2009 through October 3, 2011, in the County of
Marin, California.
Keypoint, a Delaware corporation, is a provider of investigative
and risk mitigation services to government organizations. The
true names and capacities of the Doe Defendants are unknown to
Plaintiff at this time.
The Plaintiff is represented by:
Steven Lee Hammond, Esq.
Adam Polakoff, Esq.
Andrew M. Klimenko, Esq.
HAMMOND LAW GROUP, P.C.
One Embarcadero Center, Suite 2360
San Francisco, CA 94111
Telephone: (415) 955-1915
Facsimile: (415) 955-1976
E-mail: sh@hammondlg.com
amp@hammondlg.com
amk@hammondlg.com
- and -
David S. Harris, Esq.
NORTH BAY LAW GROUP
116 E. Blithedale Avenue, Suite 2
Mill Valley, CA 94941
Telephone: (415) 388-8788
Facsimile: (415) 388-8770
E-mail: dsh@northbaylawgroup.com
- and -
Francis Shehadeh, Esq.
LAW OFFICE OF FRANCIS J. SHEHADEH
819 Eddy Street
San Francisco, CA 94109
Telephone: (415) 771-6174
E-mail: fjshehadeh@gmail.com
KRAFT FOODS: Recalls 4,000,000 Tassimo Espresso T Discs
-------------------------------------------------------
The U.S. Consumer Product Safety Commission and Health Canada, in
cooperation with Kraft Foods Global Inc., of Northfield, Illinois,
announced a voluntary recall of about 2.1 million packages of
Tassimo espresso T Discs in the United States of America and an
additional 1.9 million packages in Canada. Consumers should stop
using recalled products immediately unless otherwise instructed.
It is illegal to resell or attempt to resell a recalled consumer
product.
The recalled espresso T Discs can become clogged and spray hot
liquid and coffee grounds onto consumers and bystanders during or
after brewing, posing a burn hazard.
There have been 21 reports of incidents of hot liquid and/or
coffee grounds spraying onto consumers and bystanders, including
four reports of second-degree burn injuries. One injury involved
a 2-year-old girl from Canada who received second-degree burns to
her face.
This recall involves Gevalia, Maxwell House and Nabob brand
espresso T Discs. The T Discs are plastic discs filled with
coffee that are inserted into Tassimo coffee makers to brew single
cups of hot espresso drinks. They were sold in packages of eight
or 16 espresso T Discs. T Discs with codes ending with 11213
through 12020 are included in this recall. The code is printed on
the T Disc's foil lid and on the side of the package.
Recalled T Discs
-------------------------------------------------------------
Gevalia Maxwell House Nabob
-------------------------------------------------------------
Espresso Espresso Espresso
Espresso Decaffeinated Cafe Collection Cappuccino
Cappuccino
Cappuccino Cafe Collection Decaf Cappuccino
Creme Cappuccino
Cappuccino Cafe Collection Latte
Decaffeinated Skinny Cappuccino
Skinny Cappuccino Cafe Collection Skinny Latte
Latte
Latte Cafe Collection
Creme Latte
Caramel Latte Macchiato Cafe Collection
Caramel Latte Macchiato
Mocha
Peppermint Mocha
No other T Discs are included in this recall.
Pictures of the recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12107.html
The recalled products were manufactured in the United States of
America and sold by department, mass merchandise, home improvement
and other stores nationwide and on various Web sites, including
http://www.tassimodirect.com/,from August 2011 through February
2012 for between $8 and $11 per package.
Consumers should stop using the recalled espresso T Discs
immediately and contact the firm for a full refund. For
additional information, visit
http://www.tassimodirect.com/safetyrecall/or call the firm toll-
free at (866) 918-8763 between 8:00 a.m. and 8:00 p.m. Eastern
Time Monday through Friday or between 8:00 a.m. and 1:00 p.m.
Eastern Time Saturday.
LEO PHARMA: Sanford Wittels Files Overtime Class Action
-------------------------------------------------------
Just weeks after winning preliminary approval of a $99 million
settlement on behalf of Novartis Pharmaceuticals Sales
Representatives, Attorneys from Sanford Wittels & Heisler, LLP on
Feb. 9 filed a class action complaint in the U.S. District Court
for the Southern District of New York on behalf of four former
Sales Representatives and other similarly-situated employees at
LEO Pharma Inc. The suit details the foreign pharmaceutical
company's denial of the reps' basic overtime pay and other wage
and hour practices that violate the U.S. Fair Labor Standards Act
(FLSA) and state overtime laws in New York, California and
Washington.
"LEO Pharma willfully misclassifies its sales representatives as
exempt from the benefits of federal and state wage and hour laws,"
said Deborah Marcuse, an attorney at Sanford Wittels & Heisler,
LLP (SWH) who represents the four named plaintiffs and the class.
"The LEO reps worked well over 40 hours per week but have not
received any overtime pay. Their misclassification deprives them
of the overtime pay and other work-related benefits to which they
are legally entitled. Such egregious practices allow the company
to enrich its bottom line at the expense of the economic wellbeing
of its sales force, which is intolerable."
Steven Wittels, Jeremy Heisler and Deborah Marcuse in SWH's New
York City office and David W. Sanford, in the Firm's Washington,
D.C., office represent the plaintiffs and the class.
Lori Hoel, Shuntel Blount, Lisa Borden and Mitra Mottaghian are
the plaintiffs and class representatives in the matter. Each
plaintiff seeks to represent all LEO Pharma sales reps in the
federal collective action under the Fair Labor Standards Act, and
Ms. Hoel, Ms. Blount and Ms. Mottaghian each seek to represent
class members under the state laws of California, Washington and
New York, respectively.
According to the complaint, LEO Pharma improperly classifies its
non-exempt sales representatives as salaried exempt employees and
denies them overtime pay, even though these employees regularly
perform non-exempt duties. Because of the misclassification, the
company does not pay these or similarly situated employees for the
hours they work in excess of 40 hours of week at the required rate
of time and a half.
"LEO Pharma has not made a good faith effort to comply with Fair
Labor Standards Act or with the comparable state laws that protect
workers' rights," said Mr. Heisler. "In today's depressed
economic climate, this is not only illegal, but unconscionable."
The four plaintiffs seek to represent every person who works or
who has worked as a full-time Sales Representative for LEO Pharma
for at least one day in any U.S. state or territory between
February 7, 2009, and the present.
"These companies need to get the message that they cannot
cultivate their profits at the expense of the basic rights of
their workforce," explained Mr. Wittels. "At a time when working
people are struggling to support their families, it becomes all
the more important to stand up and insist that corporations do the
right thing for their employees by paying them in accordance with
federal and state laws."
LEO Pharma, which is incorporated in Pennsylvania and
headquartered in Parsippany, NJ, is a wholly-owned subsidiary of
Ballerup, Denmark-based LEO Pharma A/S. The company specializes
in dermatology and critical products for the health care industry.
It reported an after-tax profit in 2010 of DKK699.6 million.
The Plaintiffs are represented by:
Jeremy Heisler, Esq.
Deborah Marcuse, Esq.
SANFORD WITTELS & HEISLER, LLP
1350 Avenue of the Americas, 31st Floor
New York, NY 10019
Telephone: (646) 723-2947
E-mail: jheisler@swhlegal.com
dmarcuse@swhlegal.com
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
employment discrimination, wage and hour, qui tam and consumer
actions 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.
LOGITECH INTERNATIONAL: Complaint in Securities Suit Amended
------------------------------------------------------------
An amended complaint was filed in the securities class action
lawsuit pending in California, according to Logitech International
S.A.'s February 6, 2012, Form 10-Q filing with the U.S. Securities
and Exchange Commission for the quarter ended December 31, 2011.
On May 23, 2011, a class action complaint was filed against
Logitech International S.A. and certain of its officers in the
United States District Court for the Southern District of New York
on behalf of individuals who purchased Logitech shares between
October 28, 2010, and April 1, 2011. The complaint relates to
Logitech's disclosure on March 31, 2011, that its results for
fiscal year 2011 would fall below expectations and seeks
unspecified monetary damages and other relief against the
defendants. The action was transferred to the United States
District Court for the Northern District of California on
July 28, 2011. The California Court appointed a lead plaintiff on
October 27, 2011. The plaintiff filed an amended complaint on
January 9, 2012, which expanded the alleged class period to
between October 28, 2010, and September 22, 2011.
The Company believes the lawsuit and claims lack merit and intends
to vigorously defend against them. However, there can be no
assurances that its defenses will be successful, or that any
judgment or settlement in any of these lawsuits would not have a
material adverse impact on the Company's business, financial
condition, cash flows and results of operations. The Company's
accruals for lawsuits and claims as of December 31, 2011, were not
material.
LOUISIANA CITIZENS: Offers to Settle Hurricane Katrina Claims
-------------------------------------------------------------
Alan Sayre, writing for The Associated Press, reports that
Louisiana's property insurer of last resort has offered to settle
a dispute over slow handling of hurricane claims from 2005 for up
to $80 million, with no more than $25 million of that for
attorneys' fees -- an offer that could sharply reduce the money
that policyholders eventually receive.
The governing board of Louisiana Citizens Property Insurance Corp.
approved the offer on Feb. 9.
The board was told that would cover about 25,000 policyholders who
say Citizens did not begin adjusting their claims for hurricanes
Katrina and Rita within 30 days as required by state law.
Citizens has said that it was totally overwhelmed in starting the
claims adjustment process after Katrina devastated the New Orleans
area with flooding in August 2005 and Rita followed a month later
with flooding in southwestern Louisiana.
State courts have rejected Citizens' appeals of a $104 million
class-action judgment involving 18,500 policyholders. About 6,500
more have pending claims estimated to be worth $35 million.
Plaintiff attorney Fred Herman said his side had not received a
written copy of the proposal on Feb. 9.
"Negotiations mean negotiations," Mr. Herman said in a telephone
interview. "It is not claiming a position and saying that is it.
It is a back and forth process that, if successful, results in a
compromise."
Plaintiff attorneys had offered to settle all claims in the case
for $123 million. That offer, according to documents reviewed by
the board, did not mention how much would go to pay lawyers, but
would have covered all 25,000 policyholders with claims against
Citizens. With a reduction in the current estimate of $6 million
in sheriff's seizure fees, plaintiffs said their offer would save
Citizens about $20 million.
The plaintiffs' offer also would have allowed Citizens to pay the
judgment in three installments -- $56.5 million immediately,
followed by $43.5 million by Nov. 1 and $23 million by Dec. 31.
Mr. Herman said Citizens rejected a $50 million offer in March
2009 that also would have included attorney fees.
Citizens' counteroffer on Feb. 9 did not cover a possible payment
schedule. The company earlier turned over $6 million to
eventually pay claimants instead of having to post an appeals bond
to continue challenging the case. The $80 million offer would be
added to that payment.
If attorney fees total $25 million, each policyholder would stand
to get around $2,400 under Citizens' offer. The 18,500
policyholders currently covered by court decisions are in line for
about $5,000 each, according to their attorneys. A judge will
eventually decide how much each claimant gets.
Insurance Commissioner Jim Donelon, who is the state overseer of
Citizens, said the offer was made because Citizens is running out
of legal options. Plaintiff attorneys already have seized $104
million from the insurer. That money currently is in a frozen
account.
"If we settle, it's over," Mr. Donelon said. "If we don't, we
have a short fuse on our remaining legal options."
Although Mr. Donelon said the state has until April 15 to file a
formal appeal request with the U.S. Supreme Court, that might be
too long. Plaintiff attorneys say they are entitled to complete
the seizure of the $104 million for eventual distribution to
clients on Feb. 15 and have set a Feb. 14 deadline to reach a
settlement. The high court already has denied Citizens an
emergency order to block payment.
"After that date our ability to negotiate terms will have ended,"
Mr. Herman said in a letter to the board.
Mr. Donelon said that Citizens has enough money to pay the current
judgment, but that could strain the company's reserves over the
next two hurricane seasons -- depending upon whether major storms
hit Louisiana -- and force Citizens to impose a special assessment
on private insurance companies. Those assessments are passed on
to private policyholders.
Any settlement would have to be approved by a state district
judge.
MERITOR INC: Stay on Discovery Vacated in Automotive Filters Suit
-----------------------------------------------------------------
An Illinois court vacated the stay on discovery and depositions in
the multidistrict litigation relating to automotive filters,
according to Meritor, Inc.'s February 6, 2012, Form 10-Q filing
with the U.S. Securities and Exchange Commission for the quarter
ended January 1, 2012.
On March 31, 2008, S&E Quick Lube, a filter distributor, filed a
lawsuit in U.S. District Court for the District of Connecticut
alleging that several filter manufacturers and their affiliated
corporate entities, including a prior subsidiary of the Company,
engaged in a conspiracy to fix prices, rig bids and allocate U.S.
customers for aftermarket automotive filters. This lawsuit is a
purported class action on behalf of direct purchasers of filters
from the defendants. Several parallel purported class actions,
including on behalf of indirect purchasers of filters, have been
filed by other plaintiffs in a variety of jurisdictions in the
United States and Canada. The cases have been consolidated into a
multi-district litigation proceeding in Federal court for the
Northern District of Illinois. On April 16, 2009, the Attorney
General of the State of Florida filed a complaint with the U.S.
District Court for the Northern District of Illinois based on
these same allegations. On May 25, 2010, the Office of the
Attorney General for the State of Washington informed the Company
that it also was investigating the allegations raised in these
lawsuits. On August 9, 2010, the County of Suffolk, New York,
filed a complaint in the Eastern District of New York based on the
same allegations. The case was transferred to the multi-district
litigation proceeding in Illinois, but has been dismissed without
prejudice pursuant to a tolling agreement that continues until
thirty (30) days after the claims by the indirect purchasers in
the multi-district litigation are terminated, settled, or
dismissed. On April 14, 2011, the judge in that multi-district
litigation granted a stay on discovery and depositions until July
25, 2011. The stay was subsequently extended until August 23,
2011, and, on October 12, 2011, was further extended pending the
court's ruling on various motions.
On January 19, 2012, counsel for the defendants and counsel for
all purported class plaintiffs participated in a settlement
conference that was facilitated by the magistrate for the judge in
the multi-district litigation. None of the parties was able to
reach any agreement at that conference and, on January 20, 2012,
the court ruled on the motions and vacated the stay on discovery
and depositions.
Based on management's assessment, the Company has recognized a $3
million liability in discontinued operations at December 31, 2011,
for this matter. The Company believes it has meritorious defenses
against the claims raised in all of these actions and intends to
vigorously defend itself. However, there is considerable
uncertainty around the potential outcomes in a jury trial, and if
this matter were to proceed to trial and were ultimately decided
by a jury in favor of plaintiffs, it is possible that awarded
damages could exceed the recorded liability by an amount that the
Company is unable to reasonably estimate at this time.
NAT'L FOOTBALL LEAGUE: Kevin Turner Joins Concussion Suit
---------------------------------------------------------
Jessica Bates, writing for Fox8, reports that former Philadelphia
Eagles fullback Kevin Turner is one of hundreds of former NFL
players and their families currently suing the league for alleged
negligence, claiming that it didn't do enough to mitigate the
risks despite what many say is an inherently dangerous sport.
A nasty collision during a kickoff in 1997 left Mr. Turner seeing
stars.
Mr. Turner, who spent eight seasons battering through defensive
lines in the National Football League, said the hit left him
wondering where he was.
Still, the team's medical staff looked him over and eventually
sent him back out to play, he said.
Mr. Turner is battling the debilitating effects of amyotrophic
lateral sclerosis, often known as ALS or Lou Gehrig's disease.
He said his doctors have told him that "there's no cure, you're
going to die within two to 10 years, and get your affairs in
order."
Since the diagnosis, Mr. Turner has lost most of the use of his
hands and arms. He's also agreed to submit his brain to
scientific study following his death.
Whether Mr. Turner's disease, and those like it, can be linked to
the consequences of repeated head trauma is the subject of growing
research and the focus of mounting litigation against the NFL.
Mr. Turner's attorney, Stephen F. Rosenthal -- whose Miami-based
firm represents 137 other players and their families who've filed
a class-action suit against the league -- said Mr. Turner has
likely suffered from undiagnosed concussions. He accused the
league of deliberately withholding information deemed critical to
player safety.
"At no time did the NFL inform Plaintiff Turner that he risked
severe and permanent brain damage by returning to play too soon
after sustaining a concussion," the lawsuit states. "The NFL's
failure was a substantial cause of his current injuries."
Stars such as former quarterback Jim McMahon, as well as running
backs Jamal Lewis and Dorsey Levens, have filed similar lawsuits
in states across the country.
Attorneys representing Messrs. Lewis and Levens accuse the league
of having used a "hand-picked committee of physicians" to
misrepresent evidence of the effects of head trauma, particularly
concussions.
"We do believe the NFL knew and had that available information
with them for many years now," said attorney Mike McGlamry.
In response to the allegations, the league denies the claims and
released a statement saying it "has long made player safety a
priority and continues to take steps to protect players and to
advance the science and medical understanding of the management
and treatment of concussions."
"The NFL has never misled players with respect to the risks
associated with playing football," the statement added. "Any
suggestion to the contrary has no merit."
A spokesman for the Philadelphia Eagles, regarding Mr. Turner's
allegations, referred CNN to the league's statement.
In 2005, the league banned the practice of tackling a player by
using his shoulder pads, a move commonly referred to as a
"horse-collar" tackle, after concluding it commonly resulted in
injury.
It also strengthened a 1979 rule prohibiting players from using
their helmets to butt, or "spear" players during a tackle -- a
rule that critics often complained had lacked enforcement.
Players like Steelers' linebacker James Harrison have since been
dealt hefty and repeated fines for helmet-first tackles.
Critics, meanwhile, say the league should have made the changes
years ago and have called for more protections.
Part of the issue, noted a former Atlanta Falcons linebacker, is a
sports culture that largely encourages behavior out-of-step with
the recognized risks of head trauma.
It's exacerbated when coaches, even at the high school level, say
"'Oh, you just got your bell rung. Get back out there and play,'"
noted Coy Wire. That attitude, he added, can contribute to the
risks of long-term brain damage.
A recent study conducted at Boston University's Center for the
Study of Traumatic Encephalopathy found evidence of a condition
called chronic traumatic encephalopathy -- a dementia-like brain
disease -- had been found in the brains of 14 of 15 former NFL
players. Their cases shared a common thread -- repeated
concussions, sub-concussive blows to the head, or both, according
to the study.
Many of those named in the recent claims, meanwhile, describe a
range of common symptoms that include headaches, sleeplessness and
dementia. But whether the league can be proven liable for alleged
mistreatment of players, who often acknowledge the risks and
likely also suffered head trauma during their high school and
collegiate years, is expected to be the source of a drawn-out
legal battle involving a growing number of plaintiffs.
Mr. Rosenthal can be reached at:
Stephen F. Rosenthal, Esq.
PODHURST ORSECK, P.A.
City National Bank Building
25 West Flagler Street, Suite 800
Miami, FL 33130
United States of America
Telephone: (305) 358-2800
E-mail: srosenthal@podhurst.com
STATE OF NEW HAMPSHIRE: Mentally Ill Advocates File Class Action
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Lynne Tuohy, writing for The Associated Press, reports that
advocates for the mentally ill filed a lawsuit against New
Hampshire on Feb. 9, saying the state needlessly confines the
disabled in mental wards because it lacks services to treat them
in the community.
The plaintiffs and their lawyer, led by the Disabilities Rights
Center, want a federal judge to order the state to expand
community services and crisis intervention programs.
"People who are institutionalized are isolated from loved ones,"
said Attorney Amy Messer, legal director of the Disabilities
Rights Center. "For others who cycle in and out of New Hampshire
Hospital and community hospitals around the state, their lives are
marked by constant disruption and change."
Assistant Attorney General Anne Edwards said her office is in the
process of reviewing the lawsuit. "Obviously we will be defending
the state's system."
The class-action lawsuit comes 10 months after a federal
investigation found the state's mental health system fails its
citizens in need and is in crisis.
Federal investigators say the state's mental health system relies
too heavily on confining the mentally ill in the New Hampshire
State Hospital and its nursing home component Glencliff Home.
Steven Schwartz, of the Center for Public Representation, talks
about a class action lawsuit filed against the State of New
Hampshire, during a news conference on Feb. 9 in Concord, N.H.
"Reliance on unnecessary and expensive institutional care both
violates the civil rights of people with disabilities and incurs
unnecessary expense," Assistant U.S. Attorney General Thomas Perez
wrote in the April 2011 report.
Claims in the lawsuit mirror the conclusions of the federal
investigation and come as no surprise to state officials who for
years have acknowledged deficiencies in the system and developed a
10-year plan to address them. DHHS Commissioner Nicholas Toumpas
in 2009 labeled it "a broken system."
The Disabilities Rights Center and advocates who filed the lawsuit
say the state is violating the Americans with Disabilities Act by
segregating the mentally ill in institutions and not providing
less restrictive alternatives in the community. They say they
filed the lawsuit as a last resort, after lengthy negotiations
with the state failed to produce any results.
Lawyers for the mentally ill said on Feb. 9 that New Hampshire has
regressed since the late 1980s, when it was lauded by the National
Institute of Mental Health as a leader in providing community
services for the mentally ill. Ms. Messer said admissions to New
Hampshire Hospital and Glencliff House in Benton have
"skyrocketed" from 900 in 1989 to 2,300 in 2010.
"Once sent to Glencliff, few people ever return to their
community," Ms. Messer said. "Over the years more people have
died at Glencliff than have returned to their community."
Kenneth R. is a 65-year-old resident of Glencliff House and a
named plaintiff in the lawsuit. His guardian, Jayne McCabe, said
on Feb. 9 he's been there seven years and desperately wants to
leave, but there are no services in the community to help him cope
with his mental illness and paraplegia.
Ms. Messer said she met Kenneth R. when she visited Glencliff
House and interviewed a number of its residents. "He looked up
and said, 'Can you get me out of here?'"
The federal report released last April stated that the average
cost of institutionalizing a mentally ill patient is $287,000 a
year, compared with the $44,000 it costs to treat them in the
community. Lawyers for the mentally ill say the annual cost of a
bed at New Hampshire Hospital is $435,000.
TELENAV INC: Final Hearing on "Smith" Suit Settlement on Feb. 24
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A hearing on final approval of the agreement settling a purported
stockholder class action lawsuit filed by David Smith is scheduled
for February 24, 2012, according to TeleNav, Inc.'s February 6,
2012, Form 10-Q filing with the U.S. Securities and Exchange
Commission for the quarter ended December 31, 2011.
On September 2, 2010, a purported stockholder class action was
filed by David Smith in the United States District Court for the
Northern District of California (Case No. 3:10-CV-03942-SC)
against the Company, certain of its officers and directors, and
certain of its underwriters for the Company's May 13, 2010 initial
public offering, alleging violations of Sections 11 and 15 of the
Securities Act. On March 21, 2011, plaintiff filed an amended
complaint purporting to be brought on behalf of all persons who
acquired shares of the Company's common stock pursuant to its IPO
and alleging that the Company, certain of its officers and
directors, and certain of its underwriters for the IPO violated
the Securities Act by issuing the Registration Statement and
Prospectus, which the plaintiff alleges contained material
misstatements and omissions in violation of Sections 11, 12(a)(2)
and 15 of the Securities Act. The amended complaint sought class
certification, compensatory damages, attorneys' fees and costs,
rescission or a rescissory measure of damages, equitable and/or
injunctive relief, and such other relief as the court may deem
proper.
The Company filed a motion to dismiss plaintiff's amended
complaint on May 4, 2011. On June 2, 2011, following a successful
mediation between the parties, the Court entered a stipulation and
order regarding settlement and staying all proceedings. On
November 15, 2011, the Court entered an Order Preliminarily
Approving Settlement and Providing for Notice. A Settlement
Hearing is scheduled for February 24, 2012. If approved, the
settlement will include a payment of $3.8 million to resolve all
claims as to all defendants to the litigation. The entire
settlement amount will be paid by the Company's insurance carrier.
The Company does not anticipate any liability as a result of this
matter.
TeleNav, Inc. -- http://www.telenav.com/-- is a leader in
location-based applications delivered via a mobile device. One of
the first to launch a GPS navigation and mobile workforce
management service on a cell phone in North America, TeleNav is
partnered with every significant wireless carrier and device
manufacturer. TeleNav offers products in 29 countries on 16
carriers on 600+ devices-more devices than any other location-
based services provider. TeleNav began trading on NASDQ under the
stock symbol TNAV in May 2010.
TRANS UNION: Sued in Calif. Over Violations of FCRA and CCRAA
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Sergio L. Ramirez, on behalf of himself and all others similarly
situated v. Trans Union, LLC, Case No. 3:12-cv-00632 (N.D. Calif.,
February 9, 2012) is a consumer class action based upon the
alleged widespread violations by Trans Union of the Fair Credit
Reporting Act.
The rights of consumers to inspect and correct consumer
information sold about them are at the heart of the FCRA and the
California Consumer Credit Reporting Agencies Act, Mr. Ramirez
asserts. He contends that Trans Union deprives consumers of these
rights by willfully failing to comply with the FCRA and the CCRAA
and refusing to follow their requirements and provide consumers
with all information it sells about them to third parties,
specifically, information about whether a given consumer is
reported as purportedly included in the Office of Foreign Assets
Control, Specifically Designated National and Blocked Persons
list. As a result, he argues, Trans Union deprives consumers of
rights to obtain a copy of and review the information that Trans
Union sells about them, to dispute and to have corrected any
inaccurate or incomplete information that Trans Union is
reporting, and to require that Trans Union maintain reasonable
procedures to assure the maximum possible accuracy of that
information before it sells it to any third party in a consumer
report.
Mr. Ramirez is a resident of Fremont, California.
Trans Union is a consumer reporting agency that regularly conducts
business in the Northern District of California.
The Plaintiff is represented by:
Andrew J. Ogilvie, Esq.
Carol McLean Brewer, Esq.
ANDERSON, OGILVIE & BREWER, LLP
600 California Street, 18th Floor
San Francisco, CA 94108
Telephone: (415) 651-1952
Facsimile: (415) 956-3233
E-mail: andy@aoblawyers.com
carol@aoblawyers.com
- and -
James A. Francis, Esq.
John Soumilas, Esq.
FRANCIS & MAILMAN, P.C.
Land Title Building, 19th Floor
100 South Broad Street
Philadelphia, PA 19110
Telephone: (215) 735-8600
Facsimile: (215) 940-8000
E-mail: Jfrancis@consumerlawfirm.com
JohnSoumilas@consumerlawfirm.com
UNITED STATES: Veterans Seek Class Certification in Suit v. CIA
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Courthouse News Service reports that veterans suing the CIA for
allegedly using them as human guinea pigs to test dangerous
chemical and biological weaponry have moved to certify a class of
"many tens of thousands of current and former service members."
A copy of the Notice of Motion and Motion for Class Certification;
Memorandum of Points and Authorities in Vietnam Veterans of
America, et al. v. Central Intelligence Agency, et al., Case No.
09-cv-00037 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/02/10/cia.pdf
The Plaintiffs are represented by:
Gordon p. Erspamer, Esq.
Eugene Illovsky, Esq.
Stacey M. Sprenkel, Esq.
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, CA 94105-2482
Telephone: (415) 268-7000
E-mail: gerspamer@mofo.com
eillovsky@mofo.com
ssprenkel@mofo.com
WHOLE FOODS: Judge Denies Class Certification in Antitrust Suit
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Zoe Tillman, writing for The National Law Journal, reports that a
federal judge has denied class certification in an antitrust case
against Whole Foods Market, striking a blow to the 2008 lawsuit
brought by an unhappy customer concerned about rising prices. The
case is an offshoot of the FTC's 2007 challenge to Whole Foods'
merger with former competitor Wild Oats.
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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
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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.
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