/raid1/www/Hosts/bankrupt/CAR_Public/120312.mbx
C L A S S A C T I O N R E P O R T E R
Monday, March 12, 2012, Vol. 14, No. 50
Headlines
ABBOTT LABORATORIES: Appeal in Antitrust MDL vs. Unit Pending
ABBOTT LABORATORIES: Settled Oklahoma Suit in October 2011
ANADARKO PETROLEUM: Certification Bid in "Tronox" Suit Withdrawn
ANADARKO PETROLEUM: Still Awaits Ruling on Bid to Dismiss Suit
APPLE INC: Faces Class Action Over iPhone 4S Siri Feature
ARCADIA RESOURCES: Final Hearing on Calif. Suit Deal on April 17
BCI BURKE: Recalls 250 Swing Sets for Repair Due to Fall Hazard
BRAZILIAN BLOWOUT: Settles Class Action for $4.5 Million
CIGNA CORPORATION: Continues to Defend "Amara" Suit
CIGNA CORPORATION: Ingenix-related Suit Remains Pending
CIGNA CORPORATION: Awaits Ruling on Bid to Dismiss "Karp" Suit
CITY OF CALIFORNIA: Judge Certifies IHSS Program Class Action
ELAN CORPORATION: Awaits Ruling on Securities Suit Appeal
GOODRICH CORP: Awaits Approval of MOU in UTC-Merger Suit
HANCOCK HOLDING: Unit Inks $6.8-Mil. Settlement in Fla. Suit
HYUNDAI MOTOR: Faces Class Action Over Defective Sonata Brakes
INTEL CORPORATION: Continues to Defend Unfair Trade Practices Suit
JC PENNEY: Faces Class Action Over False Advertising on Jewelry
LINCOLN NATIONAL: Continues to Defend "Bezich" Suit in Indiana
LOCKER BRAND: Recalls 59,600 Rx Lockers Due to Latch Failure
MATTEL INC: Bid to Dismiss Amended MGA Trade Secret Suit Pending
MERCK & CO: Virginia Supreme Court Issues Class Action Ruling
OMNICARE INC: Securities Suits Remain Pending in Kentucky
OMNICARE INC: Awaits Ruling in Calif. Antitrust Suit Appeal
OMNICARE INC: Kentucky Court Dismisses IPO-related Suit
PITNEY BOWES: Awaits Ruling on Appeal from DPPA Suit Dismissal
PITNEY BOWES: Continues to Defend Securities Suit in Connecticut
RESURGENT CAPITAL: Accused of Deceptive Debt Collection Practices
ROBERT K. MERICLE: Class Action Settlement Gets Preliminary Okay
SIEMENS CORP: Third Circuit Rejects ERISA Class Action
SP AUSNET: Settles Beechworth Bushfire Class Action
SUNTRUST BANKS: Arbitration Clause Enforceable, Court Rules
TD BANK: No Private Right of Action for Money Damages, Judge Rules
ZYNGA INC: Sued Over False Representations on "Ad-Free" Games
* Payday Lenders Can Opt for Arbitrations, Missouri Court Rules
*********
ABBOTT LABORATORIES: Appeal in Antitrust MDL vs. Unit Pending
-------------------------------------------------------------
An appeal from a court ruling in a consolidated antitrust lawsuit
in Georgia involving Abbott Laboratories' subsidiary is pending
before the United States Court of Appeals for the Eleventh
Circuit, according to the Company's February 21, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
Several lawsuits filed against Unimed Pharmaceuticals, Inc.,
Solvay Pharmaceuticals, Inc. (a company Abbott acquired in
February 2010) et al. have been consolidated for pre-trial
purposes in the United States District Court for the Northern
District of Georgia under the Multi District Litigation Rules as
In re AndroGel Antitrust Litigation, MDL No. 2084. These cases,
brought by private plaintiffs and the Federal Trade Commission
("FTC"), generally allege Solvay's 2006 patent litigation
involving AndroGel was sham litigation and the patent litigation
settlement agreement and related agreements with three generic
companies violate federal and state antitrust laws and state
consumer protection and unjust enrichment laws. Plaintiffs
generally seek monetary damages and/or injunctive relief and
attorneys' fees. MDL 2084 includes: (a) three individual
plaintiff lawsuits: Supervalu, Inc. v. Unimed Pharmaceuticals,
Inc. et al., was filed in April 2010 in the Northern District of
Georgia; and Rite Aid Corp. et al. v. Unimed Pharmaceuticals, Inc.
et al. and Walgreen Co. et al. v. Unimed Pharmaceuticals, Inc. et
al., both of which were filed in February 2009 in the United
States District Court for the Middle District of Pennsylvania; (b)
seven purported class actions: Meijer, Inc. et al. v. Unimed
Pharmaceuticals, Inc. et al., Rochester Drug Co-Operative, Inc. et
al. v. Unimed Pharmaceuticals, Inc. et al., and Louisiana
Wholesale Drug Co., Inc. et al. v. Unimed Pharmaceuticals, Inc. et
al., all of which were filed in May 2009 in the United States
District Court for the Northern District of Georgia; Fraternal
Order of Police v. Unimed Pharmaceuticals, Inc. et al., filed in
September 2009 in the United States District Court for the
Northern District of Georgia; Jabo's Pharmacy, Inc. v. Solvay
Pharmaceuticals, Inc. et al., filed in October 2009 in the United
States District Court for the Eastern District of Tennessee;
LeGrand v. Unimed Pharmaceuticals, Inc. et al., filed in September
2010 in the United States District Court for the Northern District
of Georgia; and Health Net, Inc. v. Solvay Pharmaceuticals, Inc.,
filed in February 2011 in the Northern District of Georgia; and
(c) a lawsuit brought by the FTC, Federal Trade Commission v.
Watson Pharmaceuticals, Inc. et al., filed in May 2009 in the
United States District Court for the Northern District of Georgia.
In February 2010, Solvay's motion to dismiss the cases was
partially granted and all of the FTC's claims and all of the
plaintiffs' claims except those alleging sham litigation were
dismissed. In June 2010, the FTC appealed the decision to the
United States Court of Appeals for the Eleventh Circuit, and this
appeal is pending. In February 2010, two cases, Scurto et al. v.
Unimed Pharmaceuticals, Inc. et al., filed in March 2009 in the
United States District Court for the District of New Jersey, and
United Food & Com. Workers Unions & Employ. Midwest Health
Benefits Fund et al. v. Unimed Pharmaceuticals, Inc. et al., filed
in May 2009 in the United States District Court for the District
of Minnesota, were dismissed. One class action lawsuit, Stephen
L. LaFrance Pharmacy. Inc. et al. v. Unimed Pharmaceuticals, Inc.
et al., filed in March 2009 in the United States District Court
for the District of New Jersey, was dismissed in June 2011.
ABBOTT LABORATORIES: Settled Oklahoma Suit in October 2011
----------------------------------------------------------
Abbott Laboratories settled in October 2011 a lawsuit brought by
the state of Oklahoma, according to the Company's February 21,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
Several cases, brought as purported class actions or
representative actions on behalf of individuals or entities, are
pending against Abbott that allege generally that Abbott and
numerous other pharmaceutical companies reported false pricing
information in connection with certain drugs that are reimbursable
under Medicare and Medicaid and by private payors. These cases,
brought by private plaintiffs, state Attorneys General, and other
state government entities, generally seek monetary damages and/or
injunctive relief and attorneys' fees. The federal court cases
were consolidated for pre-trial purposes in the United States
District Court for the District of Massachusetts under the Multi
District Litigation Rules as In re: Pharmaceutical Industry
Average Wholesale Price Litigation, MDL 1456. Two of the
remaining consolidated cases, State of Mississippi, filed in July
2009 on behalf of its state health plan, and a class action case
of Medicare Part B consumers and third party payors and other
consumers, filed in June 2003, were settled in June 2011. MDL
1456 now includes only one state Attorney General lawsuit filed in
August 2006 on behalf of the State of South Carolina.
In addition, several cases are pending against Abbott in state
courts: Commonwealth of Kentucky, filed in September 2003 in the
Circuit Court of Franklin County, Kentucky; State of Wisconsin,
filed in June 2004 in the Circuit Court of Dane County, Wisconsin;
State of Illinois, filed in February 2005 in the Circuit Court of
Cook County, Illinois; State of South Carolina (on behalf of its
state health plan), filed in August 2006 in the Court of Common
Pleas, Fifth Judicial Circuit of Richland County, South Carolina;
State of Alaska, filed in October 2006 in the Superior Court for
the Third Judicial District in Anchorage, Alaska; State of Idaho,
filed in January 2007 in the District Court of the Fourth Judicial
District in Ada County, Idaho; State of Utah, filed in November
2007 in the Third Judicial District in Salt Lake County, Utah;
State of Louisiana, filed in October 2010 in the Nineteenth
Judicial District, Parish of Baton Rouge, Louisiana. In October
2011, Abbott settled the case brought by the State of Oklahoma,
filed in September 2010 in the District Court of Pottawatomie
County, Oklahoma.
ANADARKO PETROLEUM: Certification Bid in "Tronox" Suit Withdrawn
----------------------------------------------------------------
Parties in a consolidated securities class action lawsuit entered
into a stipulation, pursuant to which plaintiffs agreed to
withdraw their motion for class certification, according to
Anadarko Petroleum Corporation's February 21, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
In July 2009, a consolidated class action complaint was filed in
the New York District Court on behalf of purported purchasers of
equity and debt securities of Tronox Incorporated, a former
subsidiary of Kerr-McGee Corporation, which is a current
subsidiary of Anadarko, between November 21, 2005, and
January 12, 2009 (Class Period), against Anadarko, Kerr-McGee,
several former Kerr-McGee officers and directors, several former
Tronox officers and directors, and Ernst & Young LLP (Securities
Case). The complaint alleges causes of action arising under
Sections 10(b) and 20(a) of the Securities Exchange Act of 1934
(Exchange Act) for purported misstatements and omissions
regarding, among other things, Tronox's environmental-remediation
and tort-claim liabilities. The plaintiffs allege, among other
things, that these purported misstatements and omissions are
contained in certain of Tronox's public filings, including filings
made in connection with Tronox's initial public offering. The
plaintiffs seek an unspecified amount of compensatory damages,
including interest thereon, as well as litigation fees and costs.
Anadarko, Kerr-McGee, and other defendants moved to dismiss the
consolidated class action complaint and in August 2010 moved to
dismiss an amended consolidated class action complaint that had
been filed in July 2010. The New York District Court issued the
second of two opinions and orders on the motions (Orders).
Following the Orders, only the plaintiffs' Section 20(a) claims
under the Exchange Act remain against Anadarko and Kerr-McGee.
The plaintiffs' claims against Anadarko are limited to the period
beginning on August 10, 2006, through the end of the Class Period.
In August 2011, plaintiffs filed a motion for class certification.
The defendants in the Securities Case filed briefs in opposition
to class certification in September 2011.
In January 2012, the Court entered a Stipulation and Order
pursuant to which plaintiffs agreed to withdraw their motion for
class certification without prejudice to resubmit the motion as
previously filed.
Based on the Company's assessment of the current status and merits
of the Securities Case, the Company does not consider a loss
related to litigation of these matters to be probable. This
conclusion considers that the court has not certified a class, no
fact discovery has occurred, and no dispositive motions have been
filed by the litigants. As the Securities Case progresses, it is
reasonably possible the Company's assessment as to its potential
loss could change, perhaps materially. The Company carries
Directors' and Officers' liability insurance and has notified its
insurers as to the status of this litigation. The Company will
continue to vigorously defend itself, its officers, and its
directors in these proceedings.
ANADARKO PETROLEUM: Still Awaits Ruling on Bid to Dismiss Suit
--------------------------------------------------------------
Anadarko Petroleum Corporation is still awaiting a court decision
on its motion to dismiss a consolidated class action lawsuit
related to the Deepwater Horizon accident, according to the
Company's February 21, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
In April 2010, the Macondo well in the Gulf of Mexico, in which
Anadarko held a 25% non-operating leasehold interest, discovered
hydrocarbon accumulations. During suspension operations, the well
blew out, an explosion occurred on the Deepwater Horizon drilling
rig, and the drilling rig sank, resulting in the release of
hydrocarbons into the Gulf of Mexico. Eleven people lost their
lives in the explosion and subsequent fire, and others sustained
personal injuries. The Macondo well was plugged on September 19,
2010. BP Exploration & Production Inc. (BP), the operator of
Mississippi Canyon Block 252 in which the Macondo well is located
(Lease), is funding claims and coordinating cleanup efforts.
In October 2011, the Company and BP entered into a settlement
agreement, mutual releases, and agreement to indemnify, relating
to the Deepwater Horizon events (Settlement Agreement). Pursuant
to the Settlement Agreement, the Company paid $4.0 billion and
transferred its interest in the Macondo well and the Lease to BP,
and BP accepted this consideration in full satisfaction of its
claims against Anadarko for $6.1 billion of invoices issued
through the settlement date as well for potential reimbursements
of subsequent costs incurred by BP related to the Deepwater
Horizon events, including costs under the Operating Agreement
(OA). In addition, BP fully indemnified Anadarko against all
claims, causes of action, losses, costs, expenses, liabilities,
damages, or judgments of any kind arising out of the Deepwater
Horizon events, related damage claims arising under the Oil
Pollution Act of 1990 (OPA), claims for natural resource damages
(NRD) and associated damage-assessment costs, and any claims
arising under the OA. This indemnification is guaranteed by BP
Corporation North America Inc. (BPCNA) and, in the event that the
net worth of BPCNA declines below an agreed-upon amount, BP p.l.c.
has agreed to become the sole guarantor. Under the Settlement
Agreement, BP does not indemnify the Company against fines and
penalties, punitive damages, shareholder, derivative, or security
laws claims, or certain other claims. The Company believes that
costs associated with non-indemnified items, individually or in
the aggregate, will not materially impact the Company's
consolidated financial position, results of operations, or cash
flows.
Two separate class action complaints were filed in June and August
2010, in the U.S. District Court for the Southern District of New
York (New York District Court) on behalf of purported purchasers
of the Company's stock between June 9, 2009, and
June 12, 2010, against Anadarko and certain of its officers. The
complaints allege causes of action arising pursuant to the
Securities Exchange Act of 1934 for purported misstatements and
omissions regarding, among other things, the Company's liability
related to the Deepwater Horizon events. The plaintiffs seek an
unspecified amount of compensatory damages, including interest
thereon, as well as litigation fees and costs. In November 2010,
the New York District Court consolidated the two cases and
appointed The Pension Trust Fund for Operating Engineers and
Employees' Retirement System of the Government of the Virgin
Islands (Virgin Islands Group) to act as Lead Plaintiff. In
January 2011, the Lead Plaintiff filed its Consolidated Amended
Complaint. Prior to filing its Consolidated Amended Complaint, the
Lead Plaintiff requested leave from the New York District Court to
transfer this lawsuit to the U.S. District Court for the Southern
District of Texas. The Company opposes the Lead Plaintiff's
request to transfer the case to the District Court for the
Southern District of Texas. The parties have submitted briefs to
the New York District Court concerning the transfer of venue
issue. In March 2011, the Company moved to dismiss the
Consolidated Amended Complaint of the Lead Plaintiff, and in April
2011, the Lead Plaintiff filed its opposition to the motion to
dismiss. The motion to transfer and motion to dismiss remain
under advisement of the New York District Court.
No further updates were reported in the Company's latest SEC
filing.
APPLE INC: Faces Class Action Over iPhone 4S Siri Feature
---------------------------------------------------------
Rebekah Kearn at Courthouse News Service reports that the voice-
activated Siri assistant on the Apple iPhone 4S doesn't work as
advertised, and is just a ploy to lure customers to buy a more
expensive iPhone, a man claims in a federal class action.
Frank Fazio sued Apple on behalf of consumers who bought the
iPhone 4S because commercials made the voice-activated "Siri"
feature seem easy to use for a variety of tasks.
"Defendants' advertisements regarding the Siri feature are
fundamentally false and misleading," the complaint states.
"Notwithstanding Apple's extensive multimillion-dollar advertising
campaign showcasing the Siri feature, and the fact that the iPhone
4S is more expensive than the iPhone 4, the iPhone 4S's Siri
function does not perform as advertised, rendering the iPhone 4S
merely a more expensive version of iPhone 4.
"Defendant's misrepresentations concerning the Siri feature of the
1Phone 4S are misleading, false, and reasonably likes to deceive
and have deceived plaintiff and members of the putative class."
Mr. Fazio claims that Apple's aggressive advertising for the
iPhone 4S has paid off: about 33 million of the roughly 37
millions iPhones sold during the most recent business quarter were
iPhone 4Ss, according to the complaint.
The price of an iPhone 4 starts at $99 while the iPhone 4S starts
at $199, Mr. Fazio says, citing the Apple Web site. He calls the
price difference unfair because it enables Apple to reap a huge
profit though the features that supposedly justify the 4S's extra
$100 price tag do not actually work.
Mr. Fazio, who lives in New York state, says he bought an iPhone
4S in November 2011 because the ads for it made it seem a better
deal than the iPhone 4.
He claims he "would not have paid the price he paid for the iPhone
4S, had had he not seen these representations."
Mr. Fazio says Apple embarked on a "deceptive marketing campaign"
in October 2011 with a press release calling the Siri feature is
an "intelligent assistant that helps you get things done just by
asking."
Mr. Fazio says the press release, cited in the complaint, claims
that Siri understands spoken questions and commands, such as
asking about weather conditions or telling it to remind the user
of important appointments.
In all the ads, Mr. Fazio says, Siri quickly gives the users a
relevant answer. Other ads imply that it is capable of informing
users when new tasks they want it to do conflicts with past
commands or reminders.
Mr. Fazio, citing statistics from Apple's own financial blog,
claims that 36 percent of iPhone users switched from different
companies to Apple during a 10-year period after seeing ads
depicting Siri as a revolutionary feature.
Mr. Fazio says he bought an iPhone 4S because of the Siri feature,
but had problems with the phone immediately after buying it.
"When plaintiff asked Siri for directions to a certain place, or
to locate a store, Siri either did not understand what plaintiff
was asking, or, after a very long wait time, responded with the
wrong answer," the complaint states.
He claims that "recent reports have shown that continuous Siri
usage dramatically increases an iPhone 4S user's monthly data
usage, and can easily push users over their data plans."
He adds: "Defendant had actual or constructive knowledge of the
iPhone 4S's shortcomings prior to its distribution. Indeed,
buried in Apple's website is the amorphous sentence: 'Siri is
currently in beta and we'll continue to improve it over time.'"
Mr. Fazio claims Apple exploited the fact that consumers such as
he trusted Apple's ads depicting Siri as reliable and worth paying
the extra money to have.
"Defendant's representations were made with the knowledge of the
falsity of such statements, or in reckless disregard of the truth
thereof. If plaintiff and class had been aware of these
suppressed facts, plaintiff and class would not have purchased the
iPhone 4S at the price sold by defendant," the complaint states.
Mr. Fazio seeks restitution, statutory and compensatory damages
for intentional misrepresentation, negligent misrepresentation,
breach of warranty, unfair competition and violations of
California consumer law.
A copy of the Complaint in Fazio v. Apple Inc., Case No. 12-cv-
01127 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/03/07/Apple.pdf
The Plaintiff is represented by:
Shawn A. Williams, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
Post Montgomery Center
One Montgomery Street, Suite 1800
San Francisco, CA 94104
Telephone: (415) 288-4545
E-mail: shawnw@rgrdlaw.com
- and -
Paul J. Geller, Esq.
Stuart A. Davidson, Esq.
Mark J. Dearman, Esq.
Kathleen L. Barber, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432
Telephone: (561) 750-3000
E-mail: pgeller@rgrdlaw.com
sdavidson@rgrdlaw.com
mdearman@rgrdlaw.com
kbarber@rgrdlaw.com
- and -
Ben Barnow, Esq.
Erich P. Schork, Esq.
BARNOW AND ASSOCIATES, P.C.
One North LaSalle Street, Suite 4600
Chicago, IL 60602
Telephone: (312) 621-2000
E-mail: b.barnoW@barnowlaw.com
e.schork@barnowlaw.com
ARCADIA RESOURCES: Final Hearing on Calif. Suit Deal on April 17
----------------------------------------------------------------
The hearing to consider final approval of a settlement in the wage
and hour class action lawsuit filed against a subsidiary of
Arcadia Resources, Inc., is set for April 17, 2012, according to
the Company's February 21, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
December 31, 2011.
The Company was served with a complaint filed in the Marin County
Superior Court of the State of California styled Douglas et al.
vs. Arcadia Health Services, Inc., Case No. CIV 1102982 on
June 20, 2011. The complaint is brought as a purported class
action on behalf of California employees of Arcadia Health
Services, Inc. ("AHSI"), an indirect wholly-owned subsidiary of
the Company. The complaint alleges that (a) AHSI failed to
properly compensate the plaintiff and purported class members for
meal period and rest breaks under Sections 226.7 and 512 of the
California Labor Code, (b) AHSI failed to pay continuing wages
under California Labor Code Section 203, (c) AHSI failed to pay
overtime compensation in accordance with California Labor Code
Section 1194, and (d) that the foregoing allegations also
constitute a violation of California Business and Professional
Code Section 17200 (the "Lawsuit"). The plaintiff seeks to
represent two classes of claimants, one representing claimants
under the California Labor Code claims set forth in (a) through
(c) and another representing claimants under Section 17200 under
the California Business and Professional Code. On July 18, 2011,
AHSI filed an answer in the Marin County Superior Court denying
all of the allegations in the complaint. On July 19, 2011, AHSI
filed a petition to remove the case to federal court. The Lawsuit
has been removed to federal court and is now pending in the United
States District Court for the Northern District of California (the
"District Court").
On November 8, 2011, AHSI entered into a Settlement Agreement and
General Release (the "Agreement" or "Settlement") with Ruth L.
Douglas ("Douglas") individually and on behalf of others similarly
situated (the "Class") providing for both the settlement of the
Lawsuit. On January 17, 2012, the District Court entered an order
(i) giving preliminary approval to the Settlement, (ii)
conditionally certifying a class for settlement purposes
consisting of any person employed by AHSI between June 15, 2007,
and January 17, 2012, (iii) directing that notice of the
Settlement and preliminary approval be provided to the putative
class members and (iv) setting a hearing to consider final
approval of the Settlement for April 17, 2012. The Agreement
provides for, among other things, the (1) dismissal by Douglas and
qualified members of the Class for asserted claims in the Lawsuit;
(2) agreement to amend the Complaint to add the additional claims
for relief of alleged damages under California Labor Code section
226 and alleged civil penalties under California Labor Code
section 2699; and (3) a complete release of AHSI, Arcadia
Services, Inc., RKDA, Inc and the Company from any and all claims,
debts, liabilities, demands, obligations, guarantees, costs,
expenses, attorneys' fees, penalties, damages, restitution,
injunctive relief, or a remedy of any other type which are based
on, arise out of, or are related to the causes of action of the
Lawsuit, including but not limited to, claims made pursuant to the
California Labor Code for failure to pay overtime compensation,
failure to provide adequate meal periods and/or rest periods,
failure to provide accurate wage statements, and failure to pay
final wages in a timely fashion; and claims under California
Business and Professions Code.
The Company denies the allegations in the Lawsuit and further
contends that the action may not properly be maintained as a class
action. AHSI has entered into the Settlement to avoid the time,
expense and the disruption of litigation and the risk of an
adverse determination.
Pursuant to the Agreement, AHSI has agreed to pay a total sum of
$623,000 ("Settlement Payment"), which shall be funded as follows:
(1) $23,000 was paid following the execution of the Agreement; (2)
$150,000 shall be paid within five business days of the Effective
Date, into a to-be-established escrow interest-bearing account;
(3) $225,000 shall be paid into the interest-bearing escrow
account within 8 months of the Effective Date; and (4) $225,000
shall be paid into the interest-bearing escrow account within 14
months of the Effective Date. Funding of the Settlement Payment
is solely the obligation of AHSI.
The Effective Date of the Settlement ("Effective Date") is the
date upon which: (a) the Settlement is finally approved
substantially in accordance with the terms of this Settlement; and
(b) the Court's entry of Judgment and Dismissal of the Lawsuit
("Judgment"), substantially in accordance with the terms of this
Settlement, become final. For purposes of defining the Effective
Date, the date upon which the Settlement and Judgment become final
is the last date of (a) final approval by the Court if there are
no objections made and no further objections can be made; (b) if
there are objections to the Settlement which are not withdrawn,
and if no appeal, review or writ is sought from the Judgment, the
day after the period for appeal has expired; or (c) if an appeal,
review or writ is sought from the Judgment, the day after the
Judgment is affirmed or the appeal, review or writ is dismissed or
denied and the Judgment is no longer subject to further judicial
review.
The Company recorded the full amount of the Settlement Payment of
$623,000 as a selling and administrative expense during the three
month period ended September 30, 2011. The Company made the
initial payment of $23,000 during the three month period ended
December 31, 2011. As of December 31, 2011, the remaining
liability of $600,000 is included in "Accrued Expenses - Other" on
the consolidated balance sheet.
BCI BURKE: Recalls 250 Swing Sets for Repair Due to Fall Hazard
---------------------------------------------------------------
About 250 units of 2 3/8 inch Arch Swing Sets were voluntarily
recalled by BCI Burke Co. LLC, of Fond du Lac, Wisconsin, in
cooperation with the U.S. Consumer 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 welded connection of the sleeve joint to the arch support can
crack or break. When this happens, the top swing beam can
collapse causing children on the swings to fall and be injured.
The firm has received seven reports of incidents involving the
recalled swing sets, including two minor injuries.
This recall involves the end and middle arch supports on Arch
Swing Sets and added bays with belt or bucket seats built with 2
3/8 inch steel tubing. The swings have a 2 7/8 inch diameter
sleeve that is welded to the middle or end support. "Burke" is
printed on identification labels that were provided to installers
who may or may not have put them on the swings. Pictures of the
recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12726.html
The recalled products were manufactured in the United States of
America and sold by BCI Burke Co. and its distributors from
January 2004 through December 2011 for between $700 and $1,000.
Consumers should immediately stop using the recalled swing sets,
remove the chain and swings and contact the firm for a free
retrofit kit. BCI Burke is contacting owners directly by mail.
For additional information, contact the firm at (800) 356-2070
between 8:00 a.m. and 4:00 p.m. Central Time Monday through
Friday, visit the firm's Web site at http://www.bciburke.com/,or
e-mail the firm at customerservice@bciburke.com
BRAZILIAN BLOWOUT: Settles Class Action for $4.5 Million
--------------------------------------------------------
Lori Zimmer, writing for Ecouterre, reports that Brazilian
Blowout, the hair-straightener manufacturer, mired of late in a
slew of health complaints and government inquiries, agreed on
March 5 to settle a class-action lawsuit for $4.5 million in
damages. Under the terms of the agreement, consumers who claimed
they were harmed by the product will receive $35 per treatment for
up to three treatments, while stylists get to pocket $75 for every
bottle they purchased, according to Elizabeth Pritzker --
ecp@GirardGibbs.com -- a lawyer for the plaintiffs. The
settlement follows $600,000 in penalties and fines to the state of
California after it emerged that two of the formulations emitted
formaldehyde, a human carcinogen.
CIGNA CORPORATION: Continues to Defend "Amara" Suit
---------------------------------------------------
Cigna Corporation continues to defend itself in a class action
lawsuit filed by Janice Amara in Connecticut, according to the
Company's February 23, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
On December 18, 2001, Janice Amara filed a class action lawsuit,
captioned Janice C. Amara, Gisela R. Broderick, Annette S. Glanz,
individually and on behalf of all others similarly situated v.
Cigna Corporation and Cigna Pension Plan, in the United States
District Court for the District of Connecticut against Cigna
Corporation and the Cigna Pension Plan on behalf of herself and
other similarly situated participants in the Cigna Pension Plan
affected by the 1998 conversion to a cash balance formula. The
plaintiffs allege various violations of the Employee Retirement
Income Security Act including, among other things, that the Plan's
cash balance formula discriminates against older employees; the
conversion resulted in a wear away period (when the pre-conversion
accrued benefit exceeded the post-conversion benefit); and these
conditions are not adequately disclosed in the Plan.
In 2008, the court issued a decision finding in favor of Cigna
Corporation and the Cigna Pension Plan on the age discrimination
and wear away claims. However, the court found in favor of the
plaintiffs on many aspects of the disclosure claims and ordered an
enhanced level of benefits from the existing cash balance formula
for the majority of the class, requiring class members to receive
their frozen benefits under the pre-conversion Cigna Pension Plan
and their post-1997 accrued benefits under the post-conversion
Cigna Pension Plan. The court also ordered, among other things,
pre-judgment and post-judgment interest.
Both parties appealed the court's decisions to the United States
Court of Appeals for the Second Circuit which issued a decision on
October 6, 2009 affirming the District Court's judgment and order
on all issues. On January 4, 2010, both parties filed separate
petitions for a writ of certiorari to the United States Supreme
Court. Cigna's petition was granted, and on May 16, 2011, the
Supreme Court issued its Opinion in which it reversed the lower
courts' decisions and remanded the case to the trial judge for
reconsideration of the remedy. The Court unanimously agreed with
the Company's position that the lower courts erred in granting a
remedy for an inaccurate plan description under an ERISA provision
that allows only recovery of plan benefits. However, the decision
identified possible avenues of "appropriate equitable relief" that
plaintiffs may pursue as an alternative remedy.
The case is now in the trial court following remand. Briefs have
been filed on the remedial issues and oral argument took place on
December 9, 2011. The Company will continue to vigorously defend
its position in this case. As of December 31, 2011, the Company
continues to carry a liability of $82 million pre-tax ($53 million
after-tax), that reflects the Company's best estimate of the
exposure.
CIGNA CORPORATION: Ingenix-related Suit Remains Pending
-------------------------------------------------------
A consolidated class action lawsuit related to the use of Ingenix,
Inc. data remains pending, according to Cigna Corporation's
February 23, 2012 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On February 13, 2008, State of New York Attorney General Andrew M.
Cuomo announced an industry-wide investigation into the use of
data provided by Ingenix, Inc., a subsidiary of UnitedHealthcare,
used to calculate payments for services provided by out-of-network
providers. The Company received four subpoenas from the New York
Attorney General's office in connection with this investigation
and responded appropriately. On February 17, 2009, the Company
entered into an Assurance of Discontinuance resolving the
investigation. In connection with the industry-wide resolution,
the Company contributed $10 million to the establishment of a new
non-profit company that now compiles and provides the data
formerly provided by Ingenix.
The Company was named as a defendant in a number of putative
nationwide class actions asserting that due to the use of data
from Ingenix, Inc., the Company improperly underpaid claims, an
industry-wide issue. All of the class actions were consolidated
into Franco v. Connecticut General Life Insurance Company et al.,
which is pending in the United States District Court for the
District of New Jersey. The consolidated amended complaint, filed
on August 7, 2009, asserts claims under Employee Retirement Income
Security Act, the Racketeer Influenced and Corrupt Organizations,
the Sherman Antitrust Act and New Jersey state law on behalf of
subscribers, health care providers and various medical
associations. Cigna filed a motion to dismiss the consolidated
amended complaint on September 9, 2009. Plaintiffs filed a motion
for class certification on May 28, 2010. Fact and expert
discovery have been completed.
On September 23, 2011, the court granted in part and denied in
part the motion to dismiss the consolidated amended complaint.
The court dismissed all claims by the health care provider and
medical association plaintiffs for lack of standing to sue, and as
a result the case will proceed only on behalf of subscribers. In
addition, the court dismissed all of the antitrust claims, the
ERISA claims based on disclosure and the New Jersey state law
claims. The court did not dismiss the ERISA claims for benefits
and claims under the RICO statute.
On June 9, 2009, Cigna filed motions in the United States District
Court for the Southern District of Florida to enforce a previous
settlement, In re Managed Care Litigation, by enjoining the RICO
and antitrust causes of action asserted by the provider and
medical association plaintiffs in the Ingenix litigation on the
ground that they arose previously and were released in the prior
settlement. On November 30, 2009, the Court granted the motions
and ordered the provider and association plaintiffs to withdraw
their RICO and antitrust claims from the Ingenix litigation.
Plaintiffs appealed to the Eleventh Circuit and the appeal is
pending. The claims of these provider and association plaintiffs
have now been dismissed by the Franco court for lack of standing,
and therefore Cigna moved to dismiss the Eleventh Circuit appeal
as moot.
The Company stated that it is reasonably possible that others
could initiate additional litigation or additional regulatory
action against the Company with respect to use of data provided by
Ingenix, Inc. The Company denies the allegations asserted in the
investigations and litigation and will vigorously defend itself in
these matters.
Due to numerous uncertain and unpredictable factors presented in
these cases, it is not possible to estimate a range of loss at
this time and, accordingly, no accrual has been recorded in the
Company's financial statements.
CIGNA CORPORATION: Awaits Ruling on Bid to Dismiss "Karp" Suit
--------------------------------------------------------------
Cigna Corporation is awaiting a ruling on its motion to dismiss a
gender discrimination class action lawsuit filed by Bretta Karp,
according to the Company's February 23, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On March 3, 2011, Bretta Karp filed a class action gender
discrimination lawsuit against the Company in the United States
District Court for the District of Massachusetts. The plaintiff
alleges systemic discrimination against females in compensation,
promotions, training, and performance evaluations in violation of
Title VII of the Civil Rights Act of 1964, as amended, and
Massachusetts law. Plaintiff seeks monetary damages and various
other forms of broad programmatic relief, including injunctive
relief, backpay, lost benefits, and preferential rights to jobs.
The Company filed a motion to dismiss the lawsuit on May 16, 2011,
which is fully briefed and pending. The Company denies the
allegations asserted in the litigation and will vigorously defend
itself in this case. Due to numerous uncertain and unpredictable
factors presented in this case, it is not possible to estimate a
range of loss (if any) at this time, and accordingly, no accrual
has been recorded in the Company's financial statements.
CITY OF CALIFORNIA: Judge Certifies IHSS Program Class Action
-------------------------------------------------------------
William Dotinga at Courthouse News Service reports that a federal
judge certified a class action and granted a preliminary
injunction to stop California from reducing in-home support
services for elderly and disabled people.
Lead plaintiff David Oster sued California's Department of Social
Services and Department of Health Care Services, challenging
Assembly Bill X4 4 and Senate Bill 73, which mandate reductions to
the state's In Home Support Services (IHSS) program. The
agencies' directors, Will Lightbourne and Toby Douglas, were also
named as defendants.
The class claimed that ABX 4 4 violated the Medicaid Act, which
requires that states provide "sufficient benefits," by
"terminating or reducing IHSS domestic and related services to
individuals for whom such services have been deemed necessary
pursuant to an individual service plan approved by the state,"
according to U.S. District Judge Claudia Wilken's order granting
class certification.
The class also claimed that both ABX 4 4 and SB 73 "[fail] to
ensure that Medi-Cal recipients under the age of 21 receive
medically necessary personal care services required by the Early
Periodic Screening, Diagnostic, and Treatment (EPSDT) provisions
of the Medicare Act," the class certification order stated.
ABX 4 4, passed in July 2009, tightened eligibility criteria for
participants in the IHSS program. Implementation of the bill was
stayed in October 2009 after a lawsuit from program participants
and the unions that represent IHSS providers.
SB 73, passed in 2011, contained "trigger" language to cut IHSS
service hours by 20 percent if state revenue targets were not met.
In November 2011, after it became apparent that revenue targets
would not be met, the Department of Social Services sent letters
to all 58 California counties, informing them that impending
trigger cuts would take effect on Jan. 1, 2012.
According to Judge Wilken's order granting a preliminary
injunction, certain groups of IHSS recipients would be exempted
from mandatory reductions under SB 73. These include people with
an AIDS or developmental disabilities waiver, recipients of in-
home operations, multipurpose senior service programs, and nursing
facility and acute hospital services.
Also exempted from the cuts are people with severe inside mobility
problems, those receiving bladder, bowel or menstrual care,
patients receiving transfer or paramedical services for bedsore
care, those requiring help with eating, recipients authorized for
the statutory maximum of 283 hours per month, and those assessed
for protective supervision.
Those at risk of the 20% cut were sent letters and could contest
the action, according to Judge Wilken's order. County social
service workers then assessed them for risks associated with the
reduced services, to see if some or all of the IHSS hours should
be restored.
In granting the preliminary injunction, Judge Wilken rejected
state lawyers' arguments that the claims are not ripe for
adjudication.
"Plaintiffs' challenge to cuts mandated by SB 73 is not abstract,"
Judge Wilken wrote. "The fact that some supplemental care
applications may be granted to restore hours for individual IHSS
recipients does not defeat the ripeness of the dispute plaintiffs
have presented."
Judge Wilken also rejected the state's argument that plaintiffs
representing domestic workers' unions did not have standing,
saying that they will suffer economic harm as a result of the
cuts.
"Contrary to defendants' arguments, union plaintiffs' claims in
this litigation are also germane to their organizational
interests," Judge Wilken wrote. "Union plaintiffs represent IHSS
providers who are seeking to prevent the reduction of IHSS
benefits, which will, in turn, lessen the amount of work available
to their members."
"Union plaintiffs and IHSS recipients have a mutual interest in
the success of this litigation. From the beginning of this
lawsuit, the joint goal of all plaintiffs has been to ensure that
IHSS recipients receive the services that they need to remain
safely in their homes," Judge Wilken wrote.
The state asked Judge Wilken to defer ruling on the plaintiffs'
claims under the Medicaid Act until the U.S. Supreme Court's
resolution of a 9th Circuit appeal to address whether Medicare
recipients and providers may maintain a cause of action under the
Supremacy Clause to enforce provisions of the statute.
But the Supreme Court remanded the appeal to the 9th Circuit
because of a change in the procedural posture of the case, and did
not resolve the question.
"The court declines to defer a decision on plaintiffs' request for
a preliminary injunction, pending the Ninth Circuit's resolution
of the appeal on remand," Judge Wilken wrote.
"The plaintiffs have demonstrated that they are likely to succeed
on their claim that SB 73 violates the reasonable standards
mandate of the Medicaid Act," Judge Wilken wrote. "The reduction
in IHSS hours stems from California's budget crisis as opposed to
evidence that the need for IHSS hours has been incorrectly
evaluated."
Judge Wilken added: "It is true that California is experiencing a
budget crisis. Although budgetary needs may be considered in
determining that service cuts are required, it may not be the sole
reason for the reduction,"
"Defendants assert that the implementation of the cuts is
reasonable in that specific groups of recipients are exempt
because 'they are categorically at serious risk of out-of-home
placement as a result of the reduction,'" Judge Wilken wrote.
"However, certain IHSS recipients will be cut back to 20 percent
fewer hours for reasons unrelated to need. These IHSS recipients
are not in an exempt or pre-approved group and will receive a
notice of action, even though they are presumptively at serious
risk of out-of-home placement. Only if these seriously at-risk
recipients submit a supplemental care application will they be
considered for a restoration of needed service hours. In this
respect, eligibility for services is determined, not by a
reasonable need-based standard, but by the ability of seriously
at-risk recipients to request in a timely manner a restoration of
their hours."
Judge Wilken found: "Defendants' plan would deliberately cut
services for IHSS recipients who are already known to be
presumptively eligible for a restoration of their lost hours,
should they protest the 20 percent reduction by applying for
supplemental care. Defendants seemingly expect the state will
save funds by cutting service hours of those who are unable to
protest the hours reduction."
Judge Wilken also found that the comparability requirement of the
Medicaid Act was violated because some recipients are treated
differently than others with the same level of need.
"As the court explained in its October 23, 2009 order [granting
the preliminary injunction of ABX 4 4], the use of functional
ranks to determine eligibility for services likely violates the
comparability requirement because it does not reasonably measure
the individual need of a disabled or elderly person for a
particular service," Judge Wilken wrote.
"The functional rank of two, which recognizes a need for verbal
assistance, compared to the ranks of three, four and five,
reflects the nature of the assistance needed, not the severity of
the need. For example, a person with a cognitive disorder may
only require verbal reminders or encouragement to eat or to take
her medications, but the absence of such assistance could have a
dramatic, negative impact on the recipient's health and ability to
live safely at home.
"Furthermore, it is likely that some of the recipients who are
seriously at-risk for out-of-home placement and receive notice of
the reduction will not be able timely to complete a supplemental
care application. Thus, the reductions will go into effect for
them. Yet, recipients with comparable or lesser needs who are
able to and do request supplemental care may preserve their hours
of service.
"A violation of the comparability requirement is likely to result
from the automatic imposition of the 20 percent reduction on those
IHSS recipients who do not apply for supplemental care before the
deadline."
Judge Wilken rejected the state's argument that Congress waived
comparability requirements for state-provided services to certain
targeted populations.
"This does not permit the state to violate the comparability
mandate by cutting basic services for some recipients with the
same diagnoses and needs," the judge wrote.
SB 73 also violates the sufficiency requirement of Medicaid Act,
which mandates that each service provided must be sufficient in
amount, duration and scope to reasonably achieve its purpose,
Judge Wilken found.
"The IHSS hours authorized for recipients are those that the state
has determined to be necessary to permit the recipients to remain
safely in their homes," Judge Wilken wrote. "As a result, the 20
percent reduction in those services will likely leave affected
individuals without a level of service sufficient to achieve the
purpose of the program."
Both laws violate the ADA and Rehabilitation Act, Judge Wilken
said. Citing the Supreme Court, she wrote: "Unnecessary isolation
is a form of discrimination against people with disabilities."
She found that the plaintiffs have also demonstrated injury
because they are at imminent risk of institutionalization.
"The record demonstrates the likelihood that IHSS recipients who
are presumptively eligible for a restoration of hours will not
have their hours restored because they will be unable timely to
submit a request for supplemental care. The evidence also shows
that plaintiffs are likely to succeed in demonstrating that the
loss of IHSS hours will compromise the health and well-being of
IHSS recipients such that they will be at serious risk of
institutionalization," Judge Wilken wrote.
The agencies also failed their due process requirements with the
letter sent to IHSS recipients informing them of the impending
cuts, according to Judge Wilken.
"The letter does not use simple language. It uses small print,
and a font and formatting that undermine the letter's
readability," she wrote.
The notification plan also failed to address IHSS recipients with
visual or cognitive disabilities, as well as those who are
illiterate or functionally illiterate, according to Judge Wilken.
"Furthermore, the letter does not specifically address how to
access translations of the notices and forms or even state that
they are available," Judge Wilken wrote. "The IHSS recipient
population includes people who cannot read English, Spanish,
Armenian, or Chinese. Therefore, the letter is not reasonably
calculated to provide notice to the linguistically diverse
population of IHSS recipients."
The letter failed to fully inform recipients of what would happen
to their IHSS hours, of their options, or of the process by which
their appeal would be decided, the judge said.
The plaintiffs also demonstrated likelihood of irreparable harm
from the reduced services, and because the state's interests are
strictly fiscal and the plaintiffs' interests affect their health,
well-being and ability to remain safely at home, the equities
clearly weigh in favor of the plaintiffs, Judge Wilken found.
"In fact, the deprivation of essential services to the disabled is
part of the assessment of the public interest at stake," Judge
Wilken wrote, citing Lopez v. Heckler. "Further, plaintiffs have
demonstrated that IHSS is likely to be cost-effective as compared
to the expenses incurred when disabled and elderly individuals are
institutionalized. This evidence further supports that the
balance of equities and public interest weighs in favor of the
plaintiffs," Judge Wilken concluded.
In granting the plaintiffs' preliminary injunction, Judge Wilken
recognized California's need to make cuts.
"The court recognizes California's continuing budget crisis, and
will not foreclose all reductions of IHSS hours," she wrote. "The
state may cut IHSS hours if unnecessary hours are being
compensated, but may not impose cuts mechanistically and then
determine the actual needs thereafter. And, the state must give
adequate notice to IHSS recipients of the reasons for the
reduction of their authorized service hours, and their remedies."
Judge Wilken's preliminary injunction requires that any cuts be
made after conducting a needs reassessment to determine the number
of IHSS hours necessary to enable the recipient to remain safely
at home. The reassessment cannot be based on functionality ranks
alone. The state will bear the counties' costs of the
reassessment efforts.
All future notices of cuts sent to recipients must be written at a
fifth-grade level, Judge Wilken ordered, and must not be
misleading or confusing. The state must provide notices in
English, Spanish, Chinese, Hmong, Armenian, Russian and
Vietnamese. The notice must have a telephone number by which
those who cannot read, have translational needs beyond what is
provided, or have visual or cognitive impairments can receive a
reading or translation of the content of the notice.
Finally, the state must mail notices rescinding its previous
notice within four days of the ruling and must post the rescission
on the agencies' Web site, Judge Wilken ordered.
A copy of the Order Granting Plaintiffs' Request for a Preliminary
Injunction in Oster, et al. v. Lightbourne, et al., Case No. 09-
cv-04668 (N.D. Calif.), is available at:
http://www.courthousenews.com/2012/03/07/CalifInjunct.pdf
ELAN CORPORATION: Awaits Ruling on Securities Suit Appeal
---------------------------------------------------------
Elan Corporation, plc, is awaiting a court ruling on an appeal
from an order dismissing a consolidated securities class action
lawsuit, according to the Company's February 23, 2012 Form 20-F
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
The Company and some of its officers and directors were named as
defendants in five putative class action lawsuits filed in the
U.S. District Court for the Southern District of New York in 2008.
The cases have been consolidated. The plaintiffs' Consolidated
Amended Complaint was filed on August 17, 2009, and alleged claims
under the U.S. federal securities laws and sought damages on
behalf of all purchasers of the Company's stock during periods
ranging between May 21, 2007 and October 21, 2008. The complaint
alleged that the Company issued false and misleading public
statements concerning the safety and efficacy of bapineuzumab. In
July 2010, a second securities case was filed in the U.S. District
Court for the Southern District of New York, as a "related case"
to the existing 2008 matter, by purchasers of Elan call options
during the period of June and July 2008. These cases have been
dismissed with prejudice by the trial court, but an appeal has
been filed to the 2nd Circuit by the plaintiffs in the related
case. Adverse results in this lawsuit or in any litigation to
which the Company is a party could have a material adverse affect
on the Company.
GOODRICH CORP: Awaits Approval of MOU in UTC-Merger Suit
--------------------------------------------------------
Goodrich Corporation is awaiting court approval of a memorandum of
understanding in the putative class action lawsuits relating to
its merger with United Technologies Corporation, according to the
Company's February 23, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
On September 21, 2011, Goodrich Corporation (the Company) entered
into an Agreement and Plan of Merger (Merger Agreement) with
United Technologies Corporation (UTC). The Merger Agreement
provides that, upon the terms and subject to the conditions set
forth in the Merger Agreement, the Company will be acquired by UTC
in a cash-for-stock transaction (Merger). The Company has agreed
to various covenants in the Merger Agreement, including, among
other things, to conduct its business in the ordinary course
consistent with past practice during the period between the
execution of the Merger Agreement and the time of the Merger.
In connection with the Merger Agreement with UTC, eleven putative
class-action complaints were filed in the Supreme Court of the
State of New York relating to the Merger. Nine of these
complaints were filed in the County of New York: Rice v. Goodrich
Corp., et al., Index No. 652619/2011, New Jersey Carpenters
Annuity Fund v. Goodrich Corp., et al., Index No. 652637/2011,
Louisiana Municipal Police Employees' Retirement Sys. v. Goodrich
Corp., et al., Index No. 652649/2011, Pill v. Goodrich Corp., et
al., Index No. 652655/2011, IUE-CWA Local 475 Pension Plan v.
Goodrich Corp., et al., Index No. 652661/2011, Mass. Laborers'
Pension Fund v. Goodrich Corp., et al., Index No. 652664/2011,
Pifko v. Goodrich Corp., et al., Index No. 11111146, Ruschel v.
Goodrich Corp., et al., Index No. 652695/2011, and Astor BK Realty
Trust v. Larsen, et al., Index No. 652706/2011. Two additional
putative class-action complaints were filed in Nassau County:
Casey v. Larsen, et al., Index No. 13699/2011, and Minneapolis
Retail Meat Cutters and Food Handlers Pension Fund v. Goodrich
Corp., et al., Index No. 14366/2011. On November 7, 2011, upon
plaintiffs' motions, all eleven actions were consolidated into In
re Goodrich Shareholders Litigation, Index No. 13699/2011 in the
Supreme Court for Nassau County and, on November 9, plaintiffs
filed a Consolidated Amended Class Action Complaint (Consolidated
Complaint) in that court.
The Consolidated Complaint purports to be brought on behalf of a
putative class of Goodrich shareholders and names Goodrich, its
directors, UTC and a merger subsidiary as defendants. The
Consolidated Complaint generally alleges that, in approving the
proposed transaction, the Goodrich directors breached their
fiduciary duties of care, loyalty, good faith and fair dealing
owed to the putative class. The Consolidated Complaint further
alleges that UTC, the merger subsidiary and Goodrich aided and
abetted the Goodrich directors in the breach of their fiduciary
duties. In addition to damages, the Consolidated Complaint seeks,
among other things, injunctive relief barring the named defendants
from consummating the Merger, as well as attorneys' fees and
costs. Goodrich and its directors believe that these consolidated
lawsuits and the underlying claims are without merit.
The parties to the consolidated action have reached an agreement
in principle, which is intended to resolve all issues in this
litigation. On February 6, 2012, the parties entered into a
Memorandum of Understanding (MOU) memorializing the key terms of
that agreement. Pursuant to the MOU, Goodrich has made various
additional disclosures in its Definitive Proxy Statement related
to the Merger, and UTC agreed to forebear from exercising certain
rights under the Merger Agreement.
The effect of UTC's forbearance is to shorten the period of
written notice Goodrich must give to UTC prior to making a Company
Adverse Recommendation Change or terminating the Merger Agreement
pursuant to its Section 8.1(c) in light of a Company Superior
Proposal (as those terms are defined in the Merger Agreement) from
five calendar days to three business days, and the period of prior
written notice Goodrich must give to UTC of its intention to make
a Company Adverse Recommendation Change or terminate the Merger
Agreement in light of any change to the financial or other
material terms of a subsequent Company Superior Proposal from the
longer of (i) three business days or (ii) the period remaining
under the initial five calendar-day notice, to the longer of (i)
two business days or (ii) the period remaining under the initial
three business-day notice.
The MOU will not affect the merger consideration to be paid to
shareholders of Goodrich pursuant to the Merger Agreement or the
timing of the special meeting of Goodrich's shareholders scheduled
for March 13, 2012 to vote upon a proposal to adopt the Merger
Agreement. The settlement is subject to approval by the New York
Supreme Court for Nassau County.
HANCOCK HOLDING: Unit Inks $6.8-Mil. Settlement in Fla. Suit
------------------------------------------------------------
A unit of Hancock Holding Company entered into an agreement to pay
$6.8 million in exchange for the release of all claims in a class
action pending in Florida, according to the Company's February 23,
2012 Form 8-K filing with the U.S. Securities and Exchange
Commission .
Like many other banks, Whitney Bank is a defendant in a class
action lawsuit (Angelique LaCour v. Whitney Bank, D. (M.D. Fla.))
alleging that it improperly assessed overdraft fees on consumer
and business deposit accounts owned by persons and entities that
maintained those accounts, within the class period, at Whitney
National Bank, or any of the entities that it acquired during the
class period before its merger with Hancock Bank of Louisiana, due
to the order in which it posted or processed debit card
transactions against such deposit accounts. Plaintiff alleges
that these posting practices resulted in excessive overdraft fees
being imposed by the Company. While the Company admits no wrong
doing, in order to fully and finally resolve the litigation and
avoid the significant costs and expenses that would be involved in
defending the case as well as the distraction caused by the
litigation, Whitney Bank has entered into an agreement in
principal whereby Whitney would pay the sum of $6.8 million in
exchange for a full and complete release of all claims brought in
the pending action. The proposed settlement is contingent on
several factors, including final court approval and sufficient
class participation. For accounting purposes, the Company
establishes an accrual for contingent litigation losses for any
legal matter when payments associated with the claims become
probable and the costs can be reasonably estimated. The Company
accrued for the proposed settlement in the 4th quarter of 2011.
HYUNDAI MOTOR: Faces Class Action Over Defective Sonata Brakes
--------------------------------------------------------------
Courthouse News Service reports that Hyundai Sonatas from 2006 to
2010 have defective brakes and Hyundai won't back up its warranty,
a class action claims in Westchester County Court.
A copy of the Complaint in Marshall, et al. v. Hyundai Motor
America, Index No. 53222/2012 (N.Y. Sup. Ct., Westchester Cty.),
is available at:
http://www.courthousenews.com/2012/03/07/Hyundai.pdf
The Plaintiffs are represented by:
Gary S. Graifman, Esq.
Michael L. Braunstein, Esq.
KANTROWITZ, GOLDHAMER & GRAIFMAN, P.C.
747 Chestnut Ridge Road
Chestnut Ridge, NY 10977
Telephone: (845) 356-2570
- and -
Gary E. Mason, Esq.
Nicholas A. Migliaccio, Esq.
WHITFIELD BRYSON & MASON, LLP
1625 Massachusetts Ave. NW, Suite 605
Washington, DC 20036
Telephone: (202) 429-2290
E-mail: gmason@wbmllp.com
nmigliaccio@wbmllp.com
INTEL CORPORATION: Continues to Defend Unfair Trade Practices Suit
------------------------------------------------------------------
Intel Corporation continues to defend class action lawsuits
alleging unfair trade practices, according to the Company's
February 23, 2012 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
At least 82 separate class actions have been filed in the U.S.
District Courts for the Northern District of California, Southern
District of California, District of Idaho, District of Nebraska,
District of New Mexico, District of Maine, and District of
Delaware, as well as in various California, Kansas, and Tennessee
state courts. These actions generally repeat the allegations made
in a now-settled lawsuit filed against Intel by Advanced Micro
Devices, Inc., in June 2005 in the U.S. District Court for the
District of Delaware (AMD litigation). Like the AMD litigation,
these class-action suits allege that Intel engaged in various
actions in violation of the Sherman Act and other laws by, among
other things, providing discounts and rebates to the Company's
manufacturer and distributor customers conditioned on exclusive or
near-exclusive dealings that allegedly unfairly interfered with
AMD's ability to sell its microprocessors, interfering with
certain AMD product launches, and interfering with AMD's
participation in certain industry standards-setting groups. The
class actions allege various consumer injuries, including that
consumers in various states have been injured by paying higher
prices for computers containing the Company's microprocessors.
The Company disputes the class-action claims and intends to defend
the lawsuits vigorously.
All of the federal class actions and the Kansas and Tennessee
state court class actions have been transferred by the
Multidistrict Litigation Panel to the U.S. District Court in
Delaware for all pre-trial proceedings and discovery (MDL
proceedings). The Delaware district court has appointed a Special
Master to address issues in the MDL proceedings, as assigned by
the court. In January 2010, the plaintiffs in the Delaware action
filed a motion for sanctions for the Company's alleged failure to
preserve evidence. This motion largely copies a motion previously
filed by AMD in the AMD litigation, which has settled. The
plaintiffs in the MDL proceedings also moved for certification of
a class of members who purchased certain PCs containing products
sold by Intel. In July 2010, the Special Master issued a Report
and Recommendation (Class Report) denying the motion to certify a
class. The MDL plaintiffs filed objections to the Special Master's
Class Report, and a hearing on these objections was held in March
2011. The Delaware district court has not yet ruled on those
objections. All California class actions have been consolidated
in the Superior Court of California in Santa Clara County. The
plaintiffs in the California actions have moved for class
certification, which the Company is in the process of opposing.
At the Company's request, the court in the California actions has
agreed to delay ruling on this motion until after the Delaware
district court rules on the similar motion in the MDL proceedings.
Based on the procedural posture and the nature of the cases,
including, but not limited to, the fact that the Special Master's
Class Report is on review in the Delaware district court, the
Company is unable to make a reasonable estimate of the potential
loss or range of losses, if any, arising from these matters.
JC PENNEY: Faces Class Action Over False Advertising on Jewelry
---------------------------------------------------------------
Courthouse News Service reports that a federal class action claims
JC Penney misrepresents the jewelry it sells, including diamonds.
A copy of the Complaint in Torres, et al. v. JC Penney
Corporation, Inc., et al., Case No. 12-cv-01105 (N.D. Calif.), is
available at:
http://www.courthousenews.com/2012/03/07/Penney.pdf
The Plaintiffs are represented by:
G. Richard Baker, Esq.
BAKER LAW PC
524 Union Street, #213
San Francisco, CA 94133
Telephone: (415) 295-4814
E-mail: richard@bakerlawpc.com
- and -
Bert J. Miano, Esq.
MIANO LAW PC
Black Diamond Building
2229 First Avenue North
Birmingham, AL 35203
Telephone: (205) 714-7199
E-mail: bmiano@mianolaw.com
LINCOLN NATIONAL: Continues to Defend "Bezich" Suit in Indiana
--------------------------------------------------------------
Lincoln National Corporation continues to defend itself in a
putative national class action filed by Peter S. Bezich, according
to the Company's February 23, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
On June 13, 2009, a single named plaintiff filed a putative
national class action in the Circuit Court of Allen County,
Indiana, captioned Peter S. Bezich v. LNL, No. 02C01-0906-PL73,
asserting he was charged a cost-of-insurance fee that exceeded the
applicable mortality charge, and that this fee breached the terms
of the insurance contract. The parties are conducting fact
discovery, and no class certification motion has yet been filed.
The Company disputes the allegations and is vigorously defending
this matter.
LOCKER BRAND: Recalls 59,600 Rx Lockers Due to Latch Failure
------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Locker Brand Inc. of Henderson, Nevada, announced a voluntary
recall of about 59,600 medicine bottle storage containers.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The medicine container can open by applying pressure to the latch
when it is locked. This could result in unauthorized access to
medicine bottles in the container.
No incidents or injuries have been reported.
The Rx Locker is a medicine bottle storage container. It is made
of orange plastic with a white top resembling four pill
containers. It has a metal, three-number combination lock on the
front. Production batch numbers are printed on the bottom of the
container. The recalled containers were manufactured between May
2010 to December 2010 and can be identified by the last six
numbers in the production batch number. Recalled batch numbers
end with: 052 010, 062 010, 082 010 and 122 010. Pictures of the
recalled products are available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12128.html
The recalled products were manufactured in China and sold at Bed
Bath & Beyond, CVS, Walgreens and the Locker Brand Web site from
June 2010 through October 2011 for about $15.
Consumers should immediately stop using this product and contact
Locker Brand for a free return mailer. When the product is
returned, Rx Locker will provide a full refund. For additional
information, contact Locker Brand toll-free at (888) 491-6617
between 9:00 a.m. and 5:00 p.m. Pacific Time Monday through
Friday, e-mail the firm at admin@lockerbrand.com, or visit the
firm's Web site at http://www.rxlocker.com/
MATTEL INC: Bid to Dismiss Amended MGA Trade Secret Suit Pending
----------------------------------------------------------------
Mattel Inc.'s motion to dismiss MGA Entertainment, Inc.'s first
amended complaint which included a single claim for alleged
violations of a federal antitrust statute is pending, Mattel
disclosed in its February 23, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
In April 2004, Mattel filed a lawsuit in Los Angeles County
Superior Court against Carter Bryant ("Bryant"), a former Mattel
design employee. The suit alleges that Bryant aided and assisted
a Mattel competitor, MGA Entertainment, Inc. ("MGA"), during the
time he was employed by Mattel, in violation of his contractual
and other duties to Mattel. In September 2004, Bryant asserted
counterclaims against Mattel, including counterclaims in which
Bryant sought, as a putative class action representative, to
invalidate Mattel's Confidential Information and Proprietary
Inventions Agreements with its employees. Bryant also removed
Mattel's suit to the United States District Court for the Central
District of California. In December 2004, MGA intervened as a
party-defendant in Mattel's action against Bryant, asserting that
its rights to Bratz properties are at stake in the litigation.
Separately, in November 2004, Bryant filed an action against
Mattel in the United States District Court for the Central
District of California. The action sought a judicial declaration
that Bryant's purported conveyance of rights in Bratz was proper
and that he did not misappropriate Mattel property in creating
Bratz.
In April 2005, MGA filed suit against Mattel in the United States
District Court for the Central District of California. MGA's
action alleges claims of trade dress infringement, trade dress
dilution, false designation of origin, unfair competition, and
unjust enrichment. The suit alleges, among other things, that
certain products, themes, packaging, and/or television commercials
in various Mattel product lines have infringed upon products,
themes, packaging, and/or television commercials for various MGA
product lines, including Bratz. The complaint also asserts that
various alleged Mattel acts with respect to unidentified
retailers, distributors, and licensees have damaged MGA and that
various alleged acts by industry organizations, purportedly
induced by Mattel, have damaged MGA. MGA's suit alleges that MGA
has been damaged in an amount "believed to reach or exceed tens of
millions of dollars" and further seeks punitive damages,
disgorgement of Mattel's profits and injunctive relief.
In June 2006, the three cases were consolidated in the United
States District Court for the Central District of California. On
July 17, 2006, the Court issued an order dismissing all claims
that Bryant had asserted against Mattel, including Bryant's
purported counterclaims to invalidate Mattel's Confidential
Information and Proprietary Inventions Agreements with its
employees, and Bryant's claims for declaratory relief.
In November 2006, Mattel asked the Court for leave to file an
Amended Complaint that included not only additional claims against
Bryant, but also included claims for copyright infringement, RICO
violations, misappropriation of trade secrets, intentional
interference with contract, aiding and abetting breach of
fiduciary duty and breach of duty of loyalty, and unfair
competition, among others, against MGA, its CEO Isaac Larian,
certain MGA affiliates and an MGA employee. The RICO claim
alleged that MGA stole Bratz and then, by recruiting and hiring
key Mattel employees and directing them to bring with them Mattel
confidential and proprietary information, unfairly competed
against Mattel using Mattel's trade secrets, confidential
information, and key employees to build their business. On
January 12, 2007, the Court granted Mattel leave to file these
claims as counterclaims in the consolidated cases, which Mattel
did that same day.
Mattel sought to try all of its claims in a single trial, but in
February 2007, the Court decided that the consolidated cases would
be tried in two phases, with the first trial to determine claims
and defenses related to Mattel's ownership of Bratz works and
whether MGA infringed those works. On May 19, 2008, Bryant
reached a settlement agreement with Mattel and is no longer a
defendant in the litigation. In the public stipulation entered by
Mattel and Bryant in connection with the resolution, Bryant agreed
that he was and would continue to be bound by all prior and future
Court Orders relating to Bratz ownership and infringement,
including the Court's summary judgment rulings.
The first phase of the first trial, which began on May 27, 2008,
resulted in a unanimous jury verdict on July 17, 2008 in favor of
Mattel. The jury found that almost all of the Bratz design
drawings and other works in question were created by Bryant while
he was employed at Mattel; that MGA and Isaac Larian intentionally
interfered with the contractual duties owed by Bryant to Mattel,
aided and abetted Bryant's breaches of his duty of loyalty to
Mattel, aided and abetted Bryant's breaches of the fiduciary
duties he owed to Mattel, and converted Mattel property for their
own use. The same jury determined that defendants MGA, Larian,
and MGA Entertainment (HK) Limited infringed Mattel's copyrights
in the Bratz design drawings and other Bratz works, and awarded
Mattel total damages of approximately $100 million against the
defendants. On December 3, 2008, the Court issued a series of
orders rejecting MGA's equitable defenses and granting Mattel's
motions for equitable relief, including an order enjoining the MGA
party defendants from manufacturing, marketing, or selling certain
Bratz fashion dolls or from using the "Bratz" name. The Court
stayed the effect of the December 3, 2008 injunctive orders until
further order of the Court and entered a further specified stay of
the injunctive orders on January 7, 2009.
The parties filed and argued additional motions for post-trial
relief, including a request by MGA to enter judgment as a matter
of law on Mattel's claims in MGA's favor and to reduce the jury's
damages award to Mattel. Mattel additionally moved for the
appointment of a receiver. On April 27, 2009, the Court entered
an order confirming that Bratz works found by the jury to have
been created by Bryant during his Mattel employment were Mattel's
property and that hundreds of Bratz female fashion dolls infringe
Mattel's copyrights. The Court also upheld the jury's award of
damages in the amount of $100 million and ordered an accounting of
post-trial Bratz sales. The Court further vacated the stay of the
December 3, 2008 orders, except to the extent specified by the
Court's January 7, 2009 modification.
MGA appealed the Court's equitable orders to the Court of Appeals
for the Ninth Circuit. On December 9, 2009, the Ninth Circuit
heard oral argument on MGA's appeal and issued an order staying
the District Court's equitable orders pending a further order to
be issued by the Ninth Circuit. The Ninth Circuit opinion
vacating the relief ordered by the District Court was issued on
July 22, 2010. The Ninth Circuit stated that, because of several
jury instruction errors it identified, a significant portion - if
not all - of the jury verdict and damage award should be vacated.
In its opinion, the Ninth Circuit found that the District Court
erred in concluding that Mattel's Invention agreement
unambiguously applied to "ideas;" that it should have considered
extrinsic evidence in determining the application of the
agreement; and if the conclusion turns on conflicting evidence, it
should have been up to the jury to decide. The Ninth Circuit also
concluded that the District Judge erred in transferring the entire
brand to Mattel based on misappropriated names and that the Court
should have submitted to the jury, rather than deciding itself,
whether Bryant's agreement assigned works created outside the
scope of his employment and whether Bryant's creation of the Bratz
designs and sculpt was outside of his employment. The Court then
went on to address copyright issues which would be raised after a
retrial, since Mattel "might well convince a properly instructed
jury" that it owns Bryant's designs and sculpt. The Ninth Circuit
stated that the sculpt itself was entitled only to "thin"
copyright protection against virtually identical works, while the
Bratz sketches were entitled to "broad" protection against
substantially similar works; in applying the broad protection,
however, the Ninth Circuit found that the lower court had erred in
failing to filter out all of the unprotectable elements of
Bryant's sketches. This mistake, the Court said, caused the lower
court to conclude that all Bratz dolls were substantially similar
to Bryant's original sketches.
Judge Stephen Larson, who presided over the first trial, retired
from the bench during the course of the appeal, and the case was
transferred to Judge David O. Carter. After the transfer, Judge
Carter granted Mattel leave to file a Fourth Amended Answer and
Counterclaims which focused on RICO, trade secret and other
claims, and added additional parties, and subsequently granted in
part and denied in part a defense motion to dismiss those
counterclaims. Later, on August 16, 2010, MGA asserted several new
claims against Mattel in response to Mattel's Fourth Amended
Answer and Counterclaims, including claims for alleged trade
secret misappropriation, an alleged violation of RICO, and
wrongful injunction. Mattel moved to strike and/or dismiss these
claims, as well as certain MGA allegations regarding Mattel's
motives for filing suit. The Court granted that motion as to the
wrongful injunction claim, which it dismissed with prejudice, and
as to the allegations about Mattel's motives, which it struck. The
Court denied the motion as to MGA's trade secret misappropriation
claim and its claim for violations of RICO.
The Court resolved summary judgment motions in late 2010. Among
other rulings, the Court dismissed both parties' RICO claims;
dismissed Mattel's claim for breach of fiduciary duty and portions
of other claims as "preempted" by the trade secrets act; dismissed
MGA's trade dress infringement claims; dismissed MGA's unjust
enrichment claim; dismissed MGA's common law unfair competition
claim; and dismissed portions of Mattel's copyright infringement
claim as to "later generation" Bratz dolls.
Trial of all remaining claims began in early January 2011. During
the trial, and before the case was submitted to the jury, the
Court granted MGA's motions for judgment as to Mattel's claims for
aiding and abetting breach of duty of loyalty and conversion. The
Court also granted a defense motion for judgment on portions of
Mattel's claim for misappropriation of trade secrets relating to
thefts by former Mattel employees located in Mexico.
The jury reached verdicts on the remaining claims in April 2011.
In those verdicts, the jury ruled against Mattel on its claims for
ownership of Bratz-related works, for copyright infringement, and
for misappropriation of trade secrets. The jury ruled for MGA on
its claim of trade secret misappropriation as to 26 of its claimed
trade secrets and awarded $88.5 million in damages. The jury
ruled against MGA as to 88 of its claimed trade secrets. The jury
found that Mattel's misappropriation was willful and malicious.
In early August 2011, the Court ruled on post-trial motions. The
Court rejected MGA's unfair competition claims and also rejected
Mattel's equitable defenses to MGA's misappropriation of trade
secrets claim. The Court reduced the jury's damages award of
$88.5 million to $85.0 million. The Court awarded MGA an
additional $85.0 million in punitive damages and approximately
$140 million in attorney's fees and costs. The Court entered a
judgment which totals approximately $310 million in favor of MGA.
Mattel has appealed the judgment, and expects to file its opening
appeal brief by February 27, 2012. Mattel does not believe that
it is probable that any of the damages awarded to MGA will be
sustained based on the evidence presented at trial and,
accordingly, a liability has not been accrued for this matter.
In February 2011, MGA commenced litigation in the United States
District Court for the Central District of California alleging
that Mattel's conduct in response to MGA's sale of Bratz violated
both a federal antitrust statute and the California Business &
Professions Code, and constituted abuse of process under
California law. On October 20, 2011, the Court granted Mattel's
motion to dismiss MGA's claims on the grounds, among others, that
they are barred by the doctrine of res judicata and should have
been brought in the prior proceeding. The Court gave MGA leave to
file an amended complaint in compliance with its Order.
On November 10, 2011, MGA filed a first amended complaint which
included a single claim for alleged violations of a federal
antitrust statute. Mattel has filed a motion to dismiss MGA's
amended complaint, on the grounds, among others, that it continues
to be barred by the doctrine of res judicata. Mattel believes
this complaint is without merit and intends to vigorously defend
against it.
MERCK & CO: Virginia Supreme Court Issues Class Action Ruling
-------------------------------------------------------------
Michael P. Tremoglie, writing for Legal Newsline, reports that the
Virginia Supreme Court has issued a ruling in the case of Casey v.
Merck & Co.
The United States Court of Appeals for the Second Circuit had
asked the Virginia court to rule on two issues regarding Virginia
law and a statute of limitations for class actions.
A class action was filed in the U.S. District Court for the Middle
District of Tennessee on Sept. 15, 2005, in the case of Wolfe v.
Merck & Co. The representative plaintiffs in the class action
alleged claims of strict liability, negligence and medical
monitoring against Merck.
The case was transferred to the United States District Court for
the Southern District of New York by the Multidistrict Litigation
Judicial Panel, which consolidated certain Fosamax cases.
The Southern District of New York denied class certification and
dismissed the Wolfe class action Jan. 28, 2008. But, before this
case was dismissed, four Virginia plaintiffs filed individual
state law based actions against Merck in the Southern District of
New York, asserting federal diversity jurisdiction.
Merck moved for summary judgment, alleging that the actions were
"untimely under Virginia's two-year statute of limitations for
personal injuries."
The plaintiffs claimed, in response, that the Wolfe class action,
filed within the two-year limitation period, "tolled the running
of the Virginia statute of limitations on their individual actions
because they would have been members of the proposed class had
certification been granted."
The district court granted Merck's motion. It found that while
the Wolfe was awaiting settlement it did not "toll Virginia's
limitations period for the four plaintiffs' state law claims."
The plaintiffs appealed to the U.S. Court of Appeals for the
Second Circuit. The Appeals court said Virginia law governed
this. It sent the case to the Virginia Supreme Court to determine:
"(1) Does Virginia law permit equitable tolling of a state statute
of limitations due to the pendency of a putative class action in
another jurisdiction?"
"(2) Does Va. Code Ann. Sec. 8.01-229(E)(1) permit tolling of a
state statute of limitations due to the pendency of a putative
class action in another jurisdiction?"
The Virginia Supreme Court said, "For the filing of an action to
toll the statute of limitations from running on a subsequently
filed action pursuant to [statutory tolling], there must be
identity of the parties in the two lawsuits . . . there is no
identity of parties between the named plaintiff in a putative
class action and the named plaintiff in a subsequent action filed
by a putative class member individually.
"Consequently, a putative class action cannot toll the running of
the statutory period for unnamed putative class members who are
not recognized under Virginia law as plaintiffs or represented
plaintiffs in the original action.
The Virginia Supreme Court responded to the questions asked by the
Appeals Court: " . . . this Court holds that Virginia recognizes
neither equitable nor statutory tolling due to the pendency of a
putative class action in another jurisdiction."
OMNICARE INC: Securities Suits Remain Pending in Kentucky
---------------------------------------------------------
Two putative securities class action lawsuits against OmniCare,
Inc., remain pending in a Kentucky federal court, according to the
Company's February 23, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
On August 24, 2011, a class action complaint entitled Ansfield v.
Omnicare, Inc., et al. was filed on behalf of a putative class of
all purchasers of the Company's common stock from January 10, 2007
through August 5, 2010 against the Company and certain of its
current and former officers in the United States District Court
for the Eastern District of Kentucky, alleging violations of
federal securities law in connection with alleged false and
misleading statements with respect to the Company's compliance
with federal and state Medicare and Medicaid laws and regulations.
On October 21, 2011, a class action complaint entitled
Jacksonville Police & Fire Pension Fund v. Omnicare, Inc. et al.
was filed on behalf of the same putative class of purchasers as is
referenced in the Ansfield complaint, against the Company and
certain of its current and former officers, in the U.S. District
Court for the Eastern District of Kentucky. Plaintiffs allege
substantially the same violations of federal securities law as are
alleged in the Ansfield complaint. Both complaints seek
unspecified money damages. Motions for the appointment of lead
plaintiff and lead counsel in these cases have been filed, fully
briefed and argued and are awaiting decision, following which a
consolidated amended complaint is expected to be filed. The
Company believes that the claims asserted are without merit and
intends to defend against them vigorously.
OMNICARE INC: Awaits Ruling in Calif. Antitrust Suit Appeal
-----------------------------------------------------------
OmniCare, Inc., is awaiting a court ruling on an appeal from the
dismissal of a purported antitrust class action lawsuit filed in
California, according to the Company's February 23, 2012 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
On April 2, 2010, a purported class action lawsuit, entitled
Spindler, et al. v. Johnson & Johnson Corp., Omnicare, Inc. and
Does 1-10, Case No. CV-10-1414, was filed in the United States
District Court for the Northern District of California, San
Francisco Division, against Johnson & Johnson ("J&J"), the Company
and certain unnamed defendants asserting violations of federal
antitrust law and California unfair competition law arising out of
certain arrangements between J&J and the Company. Plaintiffs
allege, among other things, that the Company violated these laws
by entering into agreements with J&J to promote J&J products. On
January 21, 2011, the court dismissed the amended complaint and
granted permission to file a new amended complaint, which was
filed in February 2011. On August 1, 2011, the court dismissed
the second amended complaint and, on October 25, 2011, after
plaintiffs had declined the court's invitation to further amend
the complaint, the district court dismissed the matter with
prejudice. Plaintiffs have filed a notice of appeal with the
Ninth Circuit Court of Appeals. Briefing of the appeal is
scheduled to be completed by April 9, 2012. The Company believes
the claims to be entirely without merit and intends to vigorously
defend the dismissal of those claims on appeal.
OMNICARE INC: Kentucky Court Dismisses IPO-related Suit
-------------------------------------------------------
A Kentucky federal court dismissed a putative class action lawsuit
arising from the initial public offering of OmniCare, Inc.'s
common stock, according to the Company's February 23, 2012 Form
10-K filing with the U.S. Securities and Exchange Commission for
the year ended December 31, 2011.
In February 2006, two substantially similar putative class action
lawsuits were filed in the United States District Court for the
Eastern District of Kentucky, and were consolidated and entitled
Indiana State Dist. Council of Laborers & HOD Carriers Pension &
Welfare Fund v. Omnicare, Inc., et al., No. 2:06cv26. The amended
consolidated complaint was filed against Omnicare, three of its
officers and two of its directors and purported to be brought on
behalf of all open-market purchasers of Omnicare common stock from
August 3, 2005 through July 27, 2006, as well as all purchasers
who bought their shares in the Company's public offering in
December 2005. The complaint contained claims under Sections
10(b) and 20(a) of the Securities Exchange Act of 1934 (and Rule
10b-5) and Section 11 of the Securities Act of 1933 and sought,
among other things, compensatory damages and injunctive relief.
Plaintiffs alleged that Omnicare (i) artificially inflated its
earnings (and failed to file GAAP-compliant financial statements)
by engaging in improper generic drug substitution, improper
revenue recognition and overvaluation of receivables and
inventories; (ii) failed to timely disclose its contractual
dispute with UnitedHealth Group Inc.; (iii) failed to timely
record certain special litigation reserves; and (iv) made other
allegedly false and misleading statements about the Company's
business, prospects and compliance with applicable laws and
regulations. The defendants filed a motion to dismiss the amended
complaint on March 12, 2007, and on October 12, 2007, the court
dismissed the case. On November 9, 2007, plaintiffs appealed the
dismissal to the United States Court of Appeals for the Sixth
Circuit. On October 21, 2009, the Sixth Circuit Court of Appeals
generally affirmed the district court's dismissal, dismissing
plaintiff's claims for violation of Sections 10(b) and 20(a) of
the Securities Exchange Act of 1934 and Rule 10b-5. However, the
appellate court reversed the dismissal for the claim brought for
violation of Section 11 of the Securities Act of 1933, and
returned the case to the district court for further proceedings.
On December 30, 2010, plaintiffs filed a motion in the district
court requesting permission to file a third amended complaint. On
February 4, 2011, the defendants filed a motion to dismiss the
sole remaining claim in plaintiff's second amended complaint. On
July 14, 2011, the court granted both motions and deemed the third
amended complaint filed. This complaint asserts a claim under
Section 11 of the Securities Act of 1933 on behalf of all
purchasers of Omnicare common stock in the December 2005 public
offering. The new complaint alleges that the 2005 registration
statement contained false and misleading statements regarding
Omnicare's policy of compliance with all applicable laws and
regulations with particular emphasis on allegations of violation
of the federal anti-kickback law in connection with three of
Omnicare's acquisitions, Omnicare's contracts with two of its
suppliers and its provision of pharmacist consultant services. On
August 19, 2011, the defendants filed a motion to dismiss
plaintiffs' most recent complaint and on February 13, 2012, the
court dismissed the case and struck the case from the docket.
PITNEY BOWES: Awaits Ruling on Appeal from DPPA Suit Dismissal
--------------------------------------------------------------
Pitney Bowes Inc. is awaiting a court ruling on an appeal from the
dismissal of a consolidated purported class action alleging that a
program created by one of its subsidiaries violated the federal
Drivers Privacy Protection Act, according to the Company's
February 23, 2012 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
The Company's wholly owned subsidiary, Imagitas, Inc., is a
defendant in several purported class actions initially filed in
six different states. These lawsuits have been coordinated in the
United States District Court for the Middle District of Florida,
In re: Imagitas, Driver's Privacy Protection Act Litigation
(Coordinated, May 28, 2007). Each of these lawsuits alleges that
the Imagitas DriverSource program violated the federal Drivers
Privacy Protection Act (DPPA). Under the DriverSource program,
Imagitas entered into contracts with state governments to mail out
automobile registration renewal materials along with third party
advertisements, without revealing the personal information of any
state resident to any advertiser. The DriverSource program
assisted the state in performing its governmental function of
delivering these mailings and funding the costs of them. The
plaintiffs in these actions were seeking statutory damages under
the DPPA. On December 21, 2009, the Eleventh Circuit Court
affirmed the District Court's summary judgment decision in Rine,
et al. v. Imagitas, Inc. (United States District Court, Middle
District of Florida, filed August 1, 2006) which ruled in
Imagitas' favor and dismissed that litigation. That decision is
now final, with no further appeals available. With respect to the
remaining state cases, on December 30, 2011, the District Court
ruled in Imagitas' favor and dismissed the litigation. Plaintiff
has filed a notice of appeal to the Court of Appeals for the
Eleventh Circuit. Based upon the Company's current understanding
of the facts and applicable laws, the Company does not believe
there is a reasonable possibility that any loss has been incurred.
PITNEY BOWES: Continues to Defend Securities Suit in Connecticut
----------------------------------------------------------------
Pitney Bowes Inc. continues to defend itself from a securities
class action lawsuit pending in a Connecticut federal court,
according to the Company's February 23, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On October 28, 2009, the Company and certain of its current and
former officers were named as defendants in NECA-IBEW Health &
Welfare Fund v. Pitney Bowes Inc. et al., a class action lawsuit
filed in the U.S. District Court for the District of Connecticut.
The complaint asserts claims under the Securities Exchange Act of
1934 on behalf of those who purchased the common stock of the
Company during the period between July 30, 2007 and October 29,
2007 alleging that the Company, in essence, missed two financial
projections. Plaintiffs filed an amended complaint on
September 20, 2010. After briefing on the motion to dismiss was
completed, the plaintiffs filed a new amended complaint on
February 17, 2012. The Company intends to move to dismiss this
new amended complaint. Based upon the Company's current
understanding of the facts and applicable laws, the Company does
not believe there is a reasonable possibility that any loss has
been incurred.
RESURGENT CAPITAL: Accused of Deceptive Debt Collection Practices
-----------------------------------------------------------------
Elizabeth J. Contreras, on behalf of herself and all others
similarly situated v. Resurgent Capital Service, L.P., LVNV
Funding LLC, Case No. 3:12-cv-01092 (N.D. Calif., March 5, 2012)
arises from the Defendants' alleged violations of the Fair Debt
Collection Practices Act, the Rosenthal Fair Debt Collection
Practices Act and Section 1788 of the California Civil Code, which
set standards for debt collectors to prevent abusive, deceptive
and unfair collection practices.
The Plaintiff relates that she received a collection letter from
Resurgent acting as an agent for LVNV in connection with her
consumer debt. She contends that the statement in the letter is
deceptive and misleading as the information in the letter is only
a statement of her rights required to be made under the FDCPA and
the CA FDCPA. She argues that the Defendants' representation that
they are providing "Information Regarding Your Legal Rights" is a
half-truth as the information provided only sets forth several of
her rights and not the numerous rights available to her under the
FDCPA and CA FDCPA.
Ms. Contreras is a resident of San Francisco, California.
Resurgent is a limited liability company headquartered in South
Carolina. LVNV purchases portfolios of defaulted debts allegedly
owed by consumers. LVNV directly or indirectly undertakes to
collect defaulted consumer debts. Resurgent, an agent of LVNV,
was hired to collect defaulted consumer debts purchased by LVNV.
The Plaintiff is represented by:
Irving L. Berg, Esq.
THE BERG LAW GROUP
145 Town Center, PMB 493
Corte Madera, CA 94925
Telephone: (415) 924-0742
Facsimile: (415) 891-8208
E-mail: irvberg@comcast.net
ROBERT K. MERICLE: Class Action Settlement Gets Preliminary Okay
----------------------------------------------------------------
Zack Needles, writing for The Legal Intelligencer, reports that
a federal judge has preliminarily approved the $17.75 million
settlement Robert K. Mericle, the builder of two juvenile
detention facilities who allegedly paid millions in "finder's
fees," agreed to in December in a civil suit brought by a class of
juvenile plaintiffs.
SIEMENS CORP: Third Circuit Rejects ERISA Class Action
------------------------------------------------------
Amaris Elliott-Engel, writing for The Legal Intelligencer, reports
that the 3rd U.S. Circuit Court of Appeals rejected a class action
brought against electronics giant Siemens by 277 plaintiffs who
said they were entitled to pension benefits if their employment
ended.
Judge Morton I. Greenberg, writing for a unanimous panel that
included Judges Dolores K. Sloviter and Thomas I. Vanaskie, said
Wednesday in Shaver v. Siemens Corp. that Siemens is entitled to
summary judgment because it did not violate the federal Employee
Retirement Income Security Act of 1974 (ERISA) by not providing
"permanent job separation" pension benefits if the plaintiffs'
employment terminated because of job movement, product line
relocation or location closedown.
All of the plaintiffs worked for Westinghouse before Siemens
acquired a unit of the plaintiffs' old company, according to the
opinion, and the benefits under the Westinghouse plan would not
accrue if the employees got employment with Westinghouse's
successor or if their employment ended after 1998, Greenberg said.
Siemens bought Westinghouse Electric Corp.'s power generation
business unit Nov. 14, 1997, Judge Greenberg said.
While the benefits were maintained during a 13-day transition from
Westinghouse to Siemens, Siemens did not establish or maintain the
plan and thus does not have the responsibility to pay out benefits
under the plan, Judge Greenberg said. Siemens' only
responsibility during those 13 days was to reimburse Westinghouse
after the fact in the event Siemens terminated a "legacy employee
without cause prior to Sept. 1, 1998," according to the opinion.
The circuit court accepted the plaintiffs' argument that the
Westinghouse plan's liabilities transferred to the Siemens plan.
The transfer of liabilities for ERISA plan participants is
important because under ERISA Section 208, plan participants can't
be provided fewer benefits if their plan consolidates with another
plan or transfers its assets and liabilities to another plan,
Greenberg said.
In another part of the opinion, Judge Greenberg said that "Section
208 essentially requires that a plan participant receive no less
benefits upon a hypothetical termination of the successor plan
just following the merger or transfer of assets or liabilities
than the participant would have received upon a hypothetical
termination of his or her original plan just prior to the merger
or transfer."
But while the panel accepted the argument that the liabilities
transferred, the court also said under prior case law and under
ERISA Section 204(g), plan benefits can be protected but the
section "cannot create an entitlement to benefits when no
entitlement exists under the terms of the plan,'" Judge Greenberg
said.
"We find that Section 204(g) does not protect from cutback an
early retirement benefit for a plan participant who has not
satisfied and never can satisfy the conditions for receiving the
benefits that are subject to the cutback," Jude Greenberg said.
The plaintiffs could not fulfill the conditions of getting the
permanent job separation benefits because one of those conditions
was that a successor employer, in this case Siemens, did not offer
continued employment, according to the opinion.
"Because appellees could not satisfy at the time of a hypothetical
termination of the Westinghouse plan nor could they have satisfied
at a later date the conditions for receiving [permanent job
separation] PJS benefits under the Westinghouse plan, Section
204(g) does not protect those benefits upon a hypothetical
termination of the Westinghouse plan," Judge Greenberg said.
"Thus, appellees' benefits upon a hypothetical termination of the
Westinghouse plan just prior to the transfer of liabilities would
not have included PJS benefits."
The Westinghouse permanent job separation benefits provided for
"payment of an employee's normal retirement benefit without
actuarial reduction prior to normal retirement age, an additional
monthly payment of $10 multiplied by the employee's years of
credited service if the employee's special retirement date was on
or before Jan. 1, 1995, and an additional monthly payment of $100
if the employee had 25 years of eligibility service and his
special retirement age was on or before Jan. 1, 1995," the opinion
said.
The decision involves four cases on appeal from the summary
judgment stage.
David B. Rodes of Goldberg Persky & White in Pittsburgh, who
argued the case on behalf of Ronald Shaver and the other
prospective class members, did not respond to a request for
comment immediately Wednesday afternoon.
John T. Tierney of Goldberg Persky and William T. Payne of Stember
Feinstein Doyle Payne & Kravec of Pittsburgh also were plaintiffs'
counsel.
Charles A. Rothfeld -- crothfeld@mayerbrown.com -- of Mayer Brown
in Washington, D.C., who argued the case on behalf of Siemens
Corp., Siemens Westinghouse Retirement Plan for Union Employees,
and Siemens Westinghouse Retirement Plan, did not respond to a
request for comment immediately Wednesday afternoon.
Frederick W. Bode III -- rbode@dmclaw.com -- and Thomas H. May --
tmay@dmclaw.com -- of Dickie McCamey & Chilcote in Pittsburgh;
David F. Dobbs, Danal L. Rust -- drust@mcguirewoods.com -- and
Robert F. Holland -- rholland@mcguirewoods.com -- of McGuire Woods
in Richmond, Va.; and Michael B. Kimberly --
mkimberly@mayerbrown.com -- and Lauren R. Goldman --
lrgoldman@mayerbrown.com -- of Mayer Brown also were counsel for
Siemens.
The American Benefits Council, the National Association of
Manufacturers and the U.S. Chamber of Commerce filed an amici in
the case.
SP AUSNET: Settles Beechworth Bushfire Class Action
---------------------------------------------------
The Sydney Morning Herald reports that victims of the Black
Saturday fires in the north-east Victorian community of Beechworth
will receive up to AUD8.8 million in compensation from one of the
electricity companies whose powerlines are thought to have
triggered the disaster.
Singapore government-owned electricity company SP AusNet said on
March 7 its insurers would pay the sum to plaintiffs of the
bushfire class action in an out-of-court settlement.
"The company continues to reject any assertion of negligence and
strongly holds the belief that it consistently complies with its
regulator obligations," SP Ausnet said in a statement to the
Australian Securities Exchange.
"Consistent with this, the settlement has been reached without
admission of liability by SP AusNet or any other party."
The final payout could take months as the Victorian Supreme court
continues to assess the value of the losses of the Beechworth
residents.
Lawyers for the residents blamed defective powerlines in the rural
areas for sparking the February 2009 fires that ultimately claimed
173 lives. It is considered one of the worst natural disasters in
Australian history.
SP AusNet's out-of-court settlement follows a similar agreement by
Powercor, announced in October, to pay residents and businesses of
Horsham up to AUD40 million.
In January, Powercor filed an appeal to the October judgment,
saying it should not have to pay for volunteer work done by
landowners who did repairs in the aftermath of the blaze.
Under the terms of the March 7 agreement, the defendants to the
suit would pay 40 per cent of the plaintiffs' assessed losses plus
interest of 5 per cent, with a cap of AUD32.85 million, the
company said.
SP AusNet's share of the settlement sum is 27 per cent of assessed
losses -- which works out to about AUD8.8 million. The remainder
of the settlement sum will be paid by the Department of
Sustainability and Environment, Parks Victoria, and tree-trimming
service Eagle Travel Tower Services, SP AusNet said.
The electricity provider said that by agreeing to pay the amount,
the company will avoid a trial scheduled to run for two months in
Wodonga.
SP AusNet serves 1.2 million customers in south-eastern Australia.
The settlement agreement is subject to court approval, which is
expected to occur in early June.
"The Department of Sustainability and Environment and Parks
Victoria welcome the decision by all parties to settle the
Beechworth Bushfire Class Action," a spokeswoman for the
departments said.
SUNTRUST BANKS: Arbitration Clause Enforceable, Court Rules
-----------------------------------------------------------
JDJournal reports that on March 1, the Atlanta-based U.S. Court of
Appeals for the 11th Circuit overturned a 2010 ruling of the
district court and upheld that a bank contract clause prohibiting
account holders from being part of a class action against the
bank, but go for mandatory arbitration in case of disputes, is
enforceable.
The judgment has wide implications on banking practices and
consumer rights of account holders.
In a question of law querying the validity of a class action suit
filed by account holders against the SunTrust Banks, SunTrust had
argued that the contract the bank had with its customers required
customers to resolve disputes individually in private arbitration.
The argument on part of the plaintiffs was that the mode of
signing the contract did not leave customers with a choice when
giving up their rights of bringing class-action suits. Also the
arbitration policy that required customers to foot the legal bills
of the bank in case of the company winning the arbitration
discouraged account holders from disputing infringement of their
legal rights.
The major decision in context of such arbitration clauses that
reduced choices of the victims of big business occurred when the
arbitration clause in AT&T Mobility's customer phone contracts was
upheld by the Supreme Court in April 2011. That set the path for
companies to avoid class-action by enforcing service contracts
requiring customers to waive their rights of class-action.
The recent judgment of the Appeals court is in line with the
earlier judgment of the U.S. Supreme Court on a similar issue.
In the three-judge panel decision, the U.S. Court of Appeals
mentioned that for an arbitration clause to be held invalid on
fairness grounds, "a contract must be so one-sided that no sane
man not acting under a delusion . . . would participate in the
transaction."
The original legal dispute was about SunTrusts Bank manipulating
the sequence of the checking accounts of customers in order to
charge excessive overdraft fees.
While the judgment seems sound from the point of legal mumbo jumbo
and based on precedents and established jurisprudence, it is also
true that with changing times, factors that had low priority in
previously established jurisprudence can change priority. Under
present circumstances, the personal economy or financial ability
of a plaintiff has become a major social factor in deciding
individual choices. The question remains whether the fairness of
an arbitration clause should only be decided on the "sane man"
approach, or whether "sane man in such an economic position," can
also enter the equation while deciding citizen's rights.
It is also mentionable that even in underdeveloped countries which
have their legal system roots in Roman law, English Common Law,
and jurisprudence, any part of a private contract that requires a
citizen to give up his/her rights to sue is held null and void to
the extent of that part.
TD BANK: No Private Right of Action for Money Damages, Judge Rules
------------------------------------------------------------------
Mark Hamblett, writing for Law.com, reports that in a case of
first impression, Southern District Judge P. Kevin Castel found no
private right of action for money damages against a bank in a case
involving a putative class of debtors who sued TD Bank for
freezing their accounts pursuant to a restraint by a third-party
creditor.
Deciding a case of first impression, Southern District Judge P.
Kevin Castel found that New York's Exempt Income Protection Act
does not provide a private right of action for money damages
against a bank in a case involving a putative class of debtors who
sued TD Bank for freezing their accounts pursuant to a restraint
by a third-party creditor.
Debtors Gary Cruz and Claude Pain, the plaintiffs in Cruz v. TD
Bank, N.A., 10 Civ. 8026, claimed TD Bank restrained their
accounts and charged them fees in violation of Article 52 of the
New York Civil Practice Law and Rules as amended by the Exempt
Income Protection Act in 2008. The measure was designed to expand
procedural protections to judgment debtors and broaden the types
of property exempt from restraint by a creditor.
Mr. Cruz had $3,020 in his account at TD Bank and Mr. Pain had
$340 when they received notice from the bank that their accounts
had been frozen and that the bank had charged them administrative
and overdraft fees associated with the restraints.
They filed suit in 2010 alleging the bank honored the restraint of
third-party creditors without obtaining disclosures from the
creditors as to income in the plaintiffs' accounts that might be
exempt, and the bank thus never passed along to the plaintiffs
information on how to claim exemptions.
The exemptions under the act include Social Security and
disability benefits as well as public assistance.
The bank moved for failure to state a claim upon which relief can
be granted.
Judge Castel, in a 27-page opinion, explained the changes in the
law, including CPLR Sec. 5222-a, which requires notifying debtors
of available exemptions and how to claim them.
The Exempt Income Protection Act, he said, also prevents a bank
from restraining a debtor's account unless it receives the notices
and forms from the creditor and mails copies to the debtor. Once
a bank receives the debtor's completed form, the bank must release
all funds unless the creditor objects.
After first ruling that he would not abstain in the case, Judge
Castel addressed the main issue, noting that the plaintiffs
conceded that there is no specific provision of the Exempt Income
Protection Act that gives plaintiffs a right to sue a bank.
The plaintiffs argued that two sections provide a private right of
action by negative inference: Sec. 5222-a(b)(3), which exempts a
bank from liability for inadvertently failing to send required
notices and exemption claim forms to a debtor, and the catch-all
language of Sec. 5222-a(h), which states that "nothing in this
section shall in any way restrict the rights and remedies
otherwise available to a judgment debtor, including but not
limited to, rights to property exemptions under federal and state
law."
But the first provision, Judge Castel said, "contains no language
creating liability," and the second "does not enlarge the rights
of a debtor, nor does it purport to create new liability for a
bank."
Judge Castel said a private right of action is also not consistent
with the legislative scheme of the act, which permits "special
proceedings" for Article 52 enforcement mechanisms, nor is it
consistent with the legislative history or with the act's
available remedies.
Section 5225(b) permits a "special proceeding" by a creditor
against a garnishee to retrieve property; Sec. 5227 permits a
special proceedings by a creditor against "any person" to pay the
debt; and Sec. 5239 permits a special proceeding against a
creditor by "any interested person" pre-restraint to determine
competing rights to property.
But Judge Castel said "these special proceedings do not fairly
imply a post-restraint action against a garnishee bank for money
damages and injunctive relief."
The Exempt Income Protection Act's "new provisions do not create a
process for suing a bank," he said. "Rather, they permit debtors
and creditors to bring claims against one another."
The court went on to grant TD Bank's motion to dismiss common law
claims against it -- conversion, breach of fiduciary duty, fraud,
unjust enrichment and negligence.
Alexander D. Bono of Duane Morris was the lead lawyer for TD Bank.
G. Oliver Koppell, who represented the plaintiffs, said he has
three similar actions pending against other banks -- two in the
Southern District and one in New York state Supreme Court.
"I think it's outrageous to not read a private right of action
into the statute," he said. "It's basically leaving these poor
people stranded because there's no indication the Banking
Department is going to look into this or do any about it."
He added, "We even pointed out that the statute says if they
merely made a negligent error, they're not liable. The
implication of that is that they are liable if they made an
intentional error."
ZYNGA INC: Sued Over False Representations on "Ad-Free" Games
-------------------------------------------------------------
Courthouse News Service reports that a class of Apple customers
who bought "ad-free" versions of Zynga games for their devices say
the applications still have advertisements.
A copy of the Complaint in Ackerman v. Zynga Inc., et al., Case
No. CGC-12-516829 (Calif. Super. Ct., San Francisco Cty.), is
available at:
http://www.courthousenews.com/2012/03/07/zynga.pdf
The Plaintiff is represented by:
Kimberly A. Kralowec, Esq.
Elizabeth I. Newman, Esq.
THE KRALOWEC LAW GROUP
188 The Embarcadero, Suite 800
San Francisco, California
Telephone: (415)546-6800
E-mail: kkralowec@kraloweclaw.com
enewman@kraloweclaw.com
- and -
Kathy A. Wisniewski, Esq.
John W. Rogers, Esq.
THOMPSON COBURN LLP
One US Bank Plaza
St. Louis, MO 63101
Telephone: (314)552-6000
* Payday Lenders Can Opt for Arbitrations, Missouri Court Rules
---------------------------------------------------------------
CBS News reports that the Missouri Supreme Court ruled on March 6
that payday lenders can require that customer disputes be settled
by arbitration instead of through class-action lawsuits.
Some payday and title lenders include wording in their contracts
outlining how they will resolve disputes with customers in
arbitration, and some such agreements include wording preventing
costumers from filing class-action lawsuits.
In two decisions on March 6, the high court said it's not unfair
for a payday loan contract to require arbitration to settle
disputes. Businesses often prefer arbitration -- rather than then
relying on a judge or jury -- to settle disputes because it can be
less costly and time-consuming than litigation.
The decisions come after the U.S. Supreme Court ruled last year
that federal laws allowing companies to require arbitration trump
contrary state laws. That case did not involve payday lenders,
but rather a California couple who had sued AT&T Mobility after
they were charged sales tax for cellphones they had been told were
free.
In one of the Missouri cases, the court decided 4-3 that the
class-action waiver was allowable, but agreed with a lower court
that other terms of the arbitration agreement were unfair. The
court voted to send the case -- involving a woman who sued a title
lender -- back to a lower court to determine how the arbitration
agreement as a whole should be enforced under state contracting
law.
Writing the Missouri court's majority opinion, Chief Justice
Richard Teitelman called the arbitration agreement as a whole
"extremely one-sided" because, among other things, it required
customers to pay their own legal expenses for the proceedings.
The agreement also allowed the title company to go to court to
repossess the plaintiff's car, which was collateral for the loan.
"In the context of a title loan transaction, this is a
particularly onerous provision because among the lender's chief
remedies in the event of default is either judicial or self-help
repossession," Mr. Teitelman wrote. "The title company reserves
its right to obtain its primary remedies through the court system"
while the plaintiff could only go to arbitration.
That case had previously been appealed to the U.S. Supreme Court,
which last year sent the case back to Missouri's justices to be
reconsidered in light of the decision involving AT&T.
In a second case, the Supreme Court voted 7-0 to reverse a lower
court decision that had ruled against an arbitration clause
because it required customers to waive their right to file a
class-action lawsuit. The high court also sent that case back,
saying that a trial court should have decided whether the
agreement was enforceable under state contracting law.
*********
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 * * *