/raid1/www/Hosts/bankrupt/CAR_Public/120313.mbx
C L A S S A C T I O N R E P O R T E R
Tuesday, March 13, 2012, Vol. 14, No. 51
Headlines
ABERCROMBIE & FITCH: Faces Class Action Over Voided Gift Cards
AEROPLAN: Quebec Court Allows Class Action to Proceed
AMERICAN INT'L: Class Action Settlement Gets Formal Approval
APPLE INC: Faces Suit in Calif. Over Siri Feature in iPhone 4S
BABBO: Mario Batali to Contribute to Class Action Settlement
CAPITAL FINANCIAL: Accused of Unlicensed Debt Collection in Ill.
CC MEDIA: Dispositive Motions Filed in "Live Rock Concerts" MDL
CH ENERGY: Being Sold for Too Little, New York Suit Claims
CHINA EDUCATION: Discovery in Consolidated Securities Suit Stayed
CISCO SYSTEMS: Shareholder Suits in Calif. Consolidated in Dec.
CITY OF PRINCE ALBERT: May Face Class Action Over Tainted Water
CLEAR CHANNEL: Dispositive Bids Filed in "Live Rock Concerts" MDL
CNA FINANCIAL: Still Awaits Final Approval of MDL Settlement
CSX CORP: Still Defends Fuel Surcharge Antitrust Litigation
DISCOVER FINANCIAL: Accused of Making Repeated & Harassing Calls
DISCOVER CARD: Still Awaits OK of Protection Fee Suit Settlement
DISCOVER CARD: "Bradley" Suit Still Pending in Calif.
DJO FINANCE: Suit Over Drug Pain Pump Still Pending in Canada
EPICOR SOFTWARE: Calif. Suit to Proceed to Discovery This Year
FMC CORP: Hydrogen Peroxide-Related Suits in Canada Still Dormant
FORD MOTOR CREDIT: Appeal in Class Suit vs. "Agrawal" Pending
FORD MOTOR: Appeal in Apartheid Litigation Remains Pending
FORD MOTOR: Appeal in Sales Procedure Suit Remains Rending
FORD MOTOR: Summary Judgment Granted in Calif. Antitrust Suit
HAPPINESS IS PET: Class Action Plaintiffs Expected to Grow
JC PENNEY: Falsely Advertised Jewelry Products, Class Suit Says
LENOVO: Recalls 50,500 ThinkCentre Desktop M70z & M90z Computers
LORILLARD INC: Awaits Ruling on Motions to Dismiss Kansas Suit
LORILLARD INC: "Cleary" Class Suit vs. Unit Has Been Concluded
LORILLARD INC: Continues to Defend Product Liability Suits
LORILLARD INC: Fee Application in "Scott" Suit Remains Pending
LORILLARD INC: Hearing in "Brown" Suit vs. Unit Set for March
MANULIFE FINANCIAL: Class Action Trial Begins in Barbados
PEP BOYS: Faces Overtime Class Action in California
SOUTHWEST AIRLINES: Faces Class Action Over Free Drink Coupons
STATE OF ARIZONA: Sued Over Inadequate Medical Care in Prisons
UMBRO USA: Recalls 240 Boys' Jackets Due to Entrapment Hazard
WELLS FARGO: Faces Class Action Over Mortgage "Tax Service Fee"
YONGYE INTERNATIONAL: N.Y. Class Action Voluntarily Dismissed
*********
ABERCROMBIE & FITCH: Faces Class Action Over Voided Gift Cards
--------------------------------------------------------------
Jonathan Stempel, writing for Reuters, reports that Abercrombie &
Fitch Co was ordered on March 7 to face a class-action lawsuit by
unhappy shoppers who claimed the clothing retailer voided holiday
gift cards that said they had "no expiration date."
The decision by U.S. District Judge Gary Feinerman in Chicago came
even as federal courts grow less willing to certify classes of
plaintiffs, following last June's U.S. Supreme Court
decertification of a large group of Wal-Mart Stores Inc employees
in a gender bias case.
Abercrombie, which caters mainly to teens and young adults, had in
a December 2009 promotion issued nearly 200,000 gift cards valued
at $25 each to shoppers who spent at least $100 on a single
purchase.
According to court papers, Abercrombie voided the cards around
Jan. 30, 2010, explaining that the cards were enclosed in sleeves
containing that expiration date.
In court papers, the New Albany, Ohio-based company insisted that
the cardholders be forced to sue separately -- which often raises
legal costs and results in lower recoveries -- because they were
too different from one another to sue as a group.
It said some people got their cards in stores and others online,
and some with the sleeve and others without. Abercrombie also
said it would be impossible to find some plaintiffs.
But Judge Feinerman said it was fair to certify a class of
plaintiffs who still hold the cards, and plaintiffs who threw out
their cards after being told they had expired or were void.
"The class in this case consists primarily of individuals holding
an Abercrombie promotional gift card whose value was voided on or
around January 30, 2010. That criterion is as objective as they
come," Judge Feinerman wrote.
Anyone claiming to have thrown out a card could submit an
"appropriate affidavit" to that effect, he added.
According to the complaint, lead plaintiff Tiffany Boundas, a
resident of Willowbrook, Illinois, tried in April 2010 to redeem
$75 of cards that she got from a friend at an Abercrombie store in
nearby Oak Brook, but the store refused to accept them.
James Shedden, a lawyer for Ms. Boundas, did not immediately
respond to a request for comment. Abercrombie did not immediately
return a call seeking comment.
The case is Boundas et al v. Abercrombie & Fitch Stores Inc, U.S.
District Court, Northern District of Illinois, No. 10-04866.
AEROPLAN: Quebec Court Allows Class Action to Proceed
-----------------------------------------------------
Aeroplan, a subsidiary of Aimia, on March 7 disclosed that the
Superior Court of Quebec authorized a petitioner to bring a class
action against Aeroplan contesting the changes announced in
October 2006 to Aeroplan's mileage accumulation and expiry rules.
The petitioner's request to bring a class action was filed in July
2009 and was heard on May 9 and 10, 2011.
The next step in the process is for the petitioner to publish a
notice of the judgment authorizing the class action and to file
and serve the claim on the merits.
"We do not expect a hearing on the merits for at least two years,"
Aeroplan said. "Aeroplan has strong arguments against the class
action and will vigorously defend against it."
The petitioner's class action lawsuit asks for the reinstatement
of expired miles, reimbursement of amounts already expended by
Aeroplan members to reinstate their expired miles, $50 in
compensatory damages and an undetermined amount in exemplary
damages on behalf of each class member.
In the meantime, it remains business as usual at Aeroplan.
AMERICAN INT'L: Class Action Settlement Gets Formal Approval
------------------------------------------------------------
Sheena Harrison, writing for Business Insurance, reports that a
$450 million settlement of a class action suit brought against
American International Group Inc. for its alleged underreporting
of workers compensation premiums has been formally approved.
U.S. District Court Judge Robert Gettleman approved the settlement
in an order and memorandum on Feb. 28. The money is to be paid by
New York-based AIG to 1,300 other commercial insurers.
The insurers had alleged that they paid states more than their
fair share of residual market assessments because AIG was assigned
an improperly small share of high-risk workers comp policies.
While Judge Gettleman granted a final approval of the settlement
in December, the order was delayed until last week's order and
memorandum.
Boston-based Liberty Mutual Group Inc. and two of its subsidiaries
-- Safeco Insurance Co. and Ohio Casualty Insurance Co. -- had
objected to the settlement. In part, they argued that the amount
was a "product of collusion and that it was discounted to account
for AIG's claims against the class members who had also been
accused of underreporting," court records show.
But Judge Gettleman said the settlement should stand because the
objectors, which will receive about 22% of the settlement,
represent only a small portion of the 1,300 insurers in the case.
"Thus, using the number of class members as a metric, there has
been almost no opposition to the settlement. This indicates that
the class members consider the settlement to be in their best
interest," Judge Gettleman wrote in the most recent order.
Judge Gettleman also ordered AIG to pay $14.8 million in attorney
fees to Safeco and Ohio Casualty, and another $2 million in fees
to Liberty Mutual.
Liberty Mutual said in December that it plans to review and appeal
Judge Gettleman's final order.
The case dates back to 2006, when then-New York Attorney General
Eliot Spitzer accused AIG of underreporting workers comp premiums
over several decades to avoid paying its fair share of residual
market assessments.
The National Workers Compensation Reinsurance Pool, operated by
Boca Raton, Fla.-based NCCI Holdings Inc., sued AIG in 2007,
alleging it violated the Racketeer Influenced and Corrupt
Organizations Act.
APPLE INC: Faces Suit in Calif. Over Siri Feature in iPhone 4S
--------------------------------------------------------------
Frank M. Fazio, Individually and on Behalf of All Others Similarly
Situated v. Apple, Inc., a California corporation, Case No. 5:12-
cv-01127 (N.D. Calif., March 6, 2012) is a consumer class action
brought on behalf of those who purchased, for use and not resale,
Apple's iPhone 4S.
Through an extensive and comprehensive nationwide marketing
campaign, Apple has conveyed the misleading and deceptive message
that the iPhone 4S's Siri feature, a so-called voice-activated
assistant, performs useful functions and otherwise works as
advertised, Mr. Fazio contends. He alleges that the
advertisements regarding the Siri feature are fundamentally and
designedly false and misleading because notwithstanding Apple's
extensive multi-million dollar advertising campaign showcasing the
Siri feature, and the fact that the iPhone 4S is more expensive
than the iPhone 4, the Siri feature does not perform as
advertised, rendering the iPhone 4S merely a more expensive iPhone
4.
Mr. Fazio is a resident of the state of New York. In November
2011, he purchased an iPhone 4S in Brooklyn, New York. He
contends that he would not have paid the price he paid for the
iPhone4S, if he had not seen Apple's advertisements and
representations.
Apple, a California corporation, is the designer and manufacturer
of the iPhone 4S. Apple transacts substantial business throughout
the state of California, through advertising, marketing, and
ownership of Apple retail stores in several California locations.
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
Facsimile: (415) 288-4534
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
Facsimile: (561) 750-3364
E-mail: pgeller@rgrdlaw.com
sdavidson@rgrdlaw.com
mdearman@rgrdlaw.com
kbarber@rgrdlaw.com
- and -
Robert M. Rothman, Esq.
ROBBINS GELLER RUDMAN & DOWD LLP
58 South Service Road, Suite 200
Melville, NY 11747
Telephone: (631) 367-7100
Facsimile: (631) 367-1173
E-mail: RRothman@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
Facsimile: (312) 641-5504
E-mail: b.barnow@barnowlaw.com
e.schork@barnowlaw.com
BABBO: Mario Batali to Contribute to Class Action Settlement
------------------------------------------------------------
Bruce Golding, writing for The New York Post, reports that
celebrity chef Mario Batali has agreed to fork over a whopping
$5.25 million to settle tip-skimming allegations at eight Italian-
style restaurants he co-owns with business partner Joseph
Bastianich.
The pending deal -- which could cover about 1,100 current and
former workers at eateries including Babbo, Esca and Lupo -- is
believed to be the largest-ever in a New York wage-and-tip suit.
The amount is a pinch larger than the $5.1 million that the
Lenny's sandwich-shop chain agreed to pay out last year, said
lawyer Lou Pechman, who in 2009 won $3.15 million for workers at
Sparks Steak House in the biggest settlement with a single
restaurant.
It also means Mr. Bastianich will have to eat his words for
publicly vowing "to fight this to every inch of the law, because
we know we're right" after he and Mr. Batali were slapped with the
class-action complaint in 2010.
Mr. Bastianich -- son of longtime public-TV cooking instructor
Lidia Bastianich -- was subsequently accused of encouraging
workers at Babbo to retaliate against waitress Stephanie Capsolas
and kitchen runner Hernan Ricardo Alvarado for filing the suit.
Last year, Mr. Bastianich told The Post that he and Mr. Batali
would never open another restaurant in New York, saying: "Money-
hungry lawyers, through frivolous lawsuits, are shaking down the
very foundation of Manhattan's restaurant industry."
Neither Messrs. Bastianich nor Batali responded to requests for
comment on March 6, and lawyers on both sides issued an identical
statement saying only: "The matter has been resolved to the
satisfaction of all parties."
The suit alleged that Messrs. Batali and Bastianich
"misappropriated" 4 to 5 percent of each shift's wine and drink
sales from the workers' tip pool, took an unlawful "tip credit"
that pushed pay below minimum wage and failed to pay extra for
shifts lasting more than 10 hours.
According to papers filed in Manhattan federal court, the
settlement -- which is awaiting a judge's approval -- was cooked
up during an all-day mediation session last year.
"A trial on damages, even on a representative basis, would be
costly and would defer further closure," the papers say.
"Any judgment would likely be appealed, thereby extending the
duration of the litigation. The settlement, on the other hand,
makes monetary relief available to class members in an prompt and
efficient matter."
The filing says those eligible to join the settlement include
anyone who worked at the restaurants as "captains, servers,
waiters, bussers, back waiters, bartenders and/or barbacks from
July 22, 2004 to Feb. 14, 2012."
"Class members will receive a proportional share of the fund based
on the number of hours they worked, the restaurant at which they
worked, the percentage of total tips received during their
employment, and whether they opted in to the collective," the
papers say.
In addition to 10 named plaintiffs, 117 people have joined the
case since it was certified as a class-action case and notices
were sent out last year.
CAPITAL FINANCIAL: Accused of Unlicensed Debt Collection in Ill.
----------------------------------------------------------------
Steven Reynolds, individually and on behalf of the class defined
herein, and People of the State of Illinois ex rel. Steven
Reynolds v. Capital Financial Credit, L.L.C., Case No. 2012-CH-
08007 (Ill. Cir. Ct., Cook Cty., March 6, 2012) seeks redress for
the conduct of the Defendant in taking collection actions
prohibited by the Illinois Collection Agency Act.
Although unlicensed under the ICAA, Capital Financial collected
debts from debtors located in Illinois by means of interstate
communication, including telephone, mail, or facsimile
transmission from a location in another state, Mr. Reynolds
contends.
Mr. Reynolds is resident of Illinois.
Capital Financial is a limited liability company chartered under
the law of Georgia. The Defendant purchases or claims to purchase
charged-off consumer debts and enforces the debts against the
consumers by filing collection lawsuits and otherwise, in Illinois
and particularly in Cook County.
The Plaintiff is represented by:
Daniel A. Edelman, Esq.
Cathleen M. Combs, Esq.
James O. Latturner, Esq.
EDELMAN, COMBS, LATTURNER & GOODWIN, LLC
120 S. LaSalle Street, 18th Floor
Chicago, IL 60603
Telephone: (312) 739-4200
Facsimile: (312) 419-0379
E-mail: courtecl@edcombs.com
ccombs@edcombs.com
jlatturner@edcombs.com
CC MEDIA: Dispositive Motions Filed in "Live Rock Concerts" MDL
---------------------------------------------------------------
Dispositive motions have been filed in the multidistrict
litigation over allegations of "live rock concerts" monopoly,
according to CC Media Holdings, Inc.'s February 21, 2012, Form 10-
K filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
Certain of the Company's subsidiaries are co-defendants with Live
Nation (which was spun off as an independent company in December
2005) in 22 putative class actions filed by different named
plaintiffs in various district courts throughout the country
beginning in May 2006. These actions generally allege that the
defendants monopolized or attempted to monopolize the market for
"live rock concerts" in violation of Section 2 of the Sherman Act.
Plaintiffs claim that they paid higher ticket prices for
defendants' "rock concerts" as a result of defendants' conduct.
They seek damages in an undetermined amount. On April 17, 2006,
the Judicial Panel for Multidistrict Litigation centralized these
class action proceedings in the Central District of California.
The district court has certified classes in five "template" cases
involving five regional markets: Los Angeles, Boston, New York
City, Chicago and Denver. Discovery has closed, and dispositive
motions have been filed.
CH ENERGY: Being Sold for Too Little, New York Suit Claims
----------------------------------------------------------
David B. Dunn, individually and on behalf of all others similarly
situated v. Steven V. Lant, Margarita K. Dilley, Steven M. Fetter,
Stanley L. Grubel, Manuel J. Iraola, E. Michel Kruse, Edward T.
Tokar, Jeffrey D. Tranen, Ernest R. Verebelyi, CH Energy Group,
Inc., FortisUS, Inc., and Cascade Acquisition Sub, Inc., Case No.
650665/2012 (N.Y. Sup. Ct., March 6, 2012) is brought on behalf of
the public stockholders of CH Energy against its Board of
Directors for their breaches of fiduciary duties arising out of
their attempt to sell the Company to FortisUS by means of an
unfair process and for an unfair price.
Pursuant to a merger agreement dated February 20, 2012, the
Defendants agreed to, among other things, a strict no-solicitation
provision that prevents the Company from soliciting other
potential acquirors or even in continuing discussions and
negotiations with potential acquirors, Mr. Dunn alleges. He
contends that the merger agreement's provisions substantially and
improperly limit the Board's ability to act with respect to
investigating and pursuing superior proposals and alternatives
including a sale of all or part of CH Energy.
The Plaintiff is a shareholder of CH Energy common stock.
CH Energy, a New York corporation, engages in electric and
regulated natural gas utility, and fuel distribution businesses in
the United States. The Individual Defendants are directors and
officers of the Company. Fortis is a Delaware corporation and a
subsidiary of Fortis Inc., an electricity and natural gas
distribution utility in Canada. Cascade is a New York corporation
wholly owned by Fortis that was created for the purposes of
effectuating the Proposed Transaction.
The Plaintiff is represented by:
Shannon L. Hopkins, Esq.
Joseph Levi, Esq.
LEVI & KORSINSKY LLP
30 Broad Street, 30th Floor
New York, NY 10004
Telephone: (212) 363-7500
Facsimile: (212) 363-7171
E-mail: shopkins@zlk.com
jlevi@zlk.com
CHINA EDUCATION: Discovery in Consolidated Securities Suit Stayed
-----------------------------------------------------------------
Discovery in a consolidated securities class action lawsuit
against China Education Alliance, Inc., is currently stayed,
according to the Company's February 21, 2012, Form 10-Q/A filing
with the U.S. Securities and Exchange Commission for the quarter
ended June 30, 2011.
The Company is presently involved in two putative class action
lawsuits filed in the U.S. District Court for the Central District
of California. The first action, Apicella v. China Education
Alliance, Inc., et al., No. 10-cv-09239 (CAS)(JCx), was filed on
December 2, 2010; the second action, Clemens v. China Education
Alliance, Inc., et al., No. 10-cv-09987 (JFW) (AGRx), was filed on
December 28, 2010. On March 2, 2011, both actions were
consolidated in In re China Education Alliance, Inc. Securities
Litigation, No. 10-cv-09239 (CAS) (JCx) (C.D. Cal.). The
Consolidated Amended Complaint alleged that the Company and
certain of its current and former officers and directors are
liable under Section 10(b) of the Securities Exchange Act of 1934
and SEC Rule 10b-5 for allegedly false and misleading statements
and omissions in the Company's public filings between 2008 and
2010 and in an investor conference call in December 2010. The
Consolidated Amended Complaint also asserted claims under Section
20(a) of the Securities Exchange Act of 1934 against the current
and former officers and directors as persons who allegedly
controlled the Company during the time the allegedly false and
misleading statements and omissions were made.
The Court denied the Company's motion to dismiss the Consolidated
Amended Complaint on October 11, 2011, and granted (with leave to
replead) a former director's motion to dismiss the Consolidated
Amended Complaint on November 14, 2011. On December 5, 2011, the
plaintiffs in the class action filed a Consolidated Second Amended
Complaint alleging claims under Section 10(b) of the Securities
Exchange Act of 1934 and SEC Rule 10b-5 against the Company and
certain of its current and former officers and directors, and
alleging claims under Section 20(a) of the Securities Exchange Act
of 1934 against certain current and former officers and directors.
The Company answered the Consolidated Second Amended Complaint on
January 5, 2012, but discovery is currently stayed while
individual defendants respond as well.
CISCO SYSTEMS: Shareholder Suits in Calif. Consolidated in Dec.
---------------------------------------------------------------
Purported shareholder class action lawsuits pending in California
were consolidated in December 2011, according to Cisco Systems,
Inc.'s February 21, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended
January 28, 2012.
On March 31, 2011, and April 12, 2011, purported shareholder class
action lawsuits were filed in the United States District Court for
the Northern District of California against the Company and
certain of its officers and directors. The lawsuits have been
consolidated, and an amended consolidated complaint was filed on
December 2, 2011. The consolidated action is purportedly brought
on behalf of purchasers of the Company's publicly traded
securities between February 3, 2010, and May 11, 2011. Plaintiffs
allege that defendants made false and misleading statements,
purport to assert claims for violations of the federal securities
laws, and seek unspecified compensatory damages and other relief.
The Company believes the claims are without merit and intends to
defend the actions vigorously. While the Company believes there
is no legal basis for liability, due to the uncertainty
surrounding the litigation process, the Company is unable to
reasonably estimate a range of loss, if any, at this time.
CITY OF PRINCE ALBERT: May Face Class Action Over Tainted Water
---------------------------------------------------------------
Brent Bosker, writing for CJME, reports that the City of Prince
Albert could be defending how it handled its tainted drinking
water situation in court.
Regina based lawyer, Tony Merchant with the Merchant Law Group
said on March 7 he is looking into launching a class action
lawsuit against the city on behalf of residents and businesses
that have become ill or suffered financial hardship during the
city's water problems.
The city's water woes go back to early February when a valve at
the water treatment plant didn't fully close, resulting in
untreated water from the North Saskatchewan River entering the
system.
A precautionary water advisory was issued by the city, which was
upgraded to an order on Feb. 7 after test samples at the plant
revealed giardia cysts and trace amounts of cryptosporidium in the
water supply.
"Everything we've seen seems to indicate negligence and a
mishandling by the city," Mr. Merchant said.
However, Merchant wasn't prepared to discuss specific allegations
until they finish assessing the information and make a decision on
whether or not to proceed.
A dozen residents in Prince Albert have contacted the law firm and
Merchant said they are encouraging, others, as well as businesses
to come forward too.
"The action is valid even if it's only the nuisance of the
boiling, if we can show wrong doing, but we're particularly
interested in people who got sick or had special and
individualistic problems that we can rely on in succeeding in a
class action lawsuit."
"If somebody's damages are only going to be $25 you could never
take that to court, but if there are thousands of people who are
entitled to $25, now you can take it to court," he said.
"That's the very nature of class proceedings. That's what the
legislation intended, that minor wrong doings will be compensable
and we launch those kinds of actions when there meritorious."
He said launching the action will depend on the quality of the
claims they get, not how many.
"We just have to be satisfied that it's a good action, a sold
action and then we would pursue it just as we pursued an action in
the Battlefords," he said.
Merchant's firm was behind a successful class action launched
after thousands became ill when cryptosporidium bacteria found its
way into North Battleford's drinking water in 2001.
In Prince Albert, only a single case of giardia has been
confirmed, but it can't be proven if the toddler's illness was
caused by the water.
CLEAR CHANNEL: Dispositive Bids Filed in "Live Rock Concerts" MDL
-----------------------------------------------------------------
Dispositive motions have been filed in the multidistrict
litigation over allegations of "live rock concerts" monopoly,
according to Clear Channel Communications, Inc.'s February 21,
2012, Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
The Company and its subsidiary are co-defendants with Live Nation
(which was spun off as an independent company in December 2005) in
22 putative class actions filed by different named plaintiffs in
various district courts throughout the country beginning in May
2006. These actions generally allege that the defendants
monopolized or attempted to monopolize the market for "live rock
concerts" in violation of Section 2 of the Sherman Act.
Plaintiffs claim that they paid higher ticket prices for
defendants' "rock concerts" as a result of defendants' conduct.
They seek damages in an undetermined amount. On April 17, 2006,
the Judicial Panel for Multidistrict Litigation centralized these
class action proceedings in the Central District of California.
The district court has certified classes in five "template" cases
involving five regional markets: Los Angeles, Boston, New York
City, Chicago and Denver. Discovery has closed, and dispositive
motions have been filed.
In the Master Separation and Distribution Agreement between the
Company and Live Nation that was entered into in connection with
the spin-off of Live Nation in December 2005, Live Nation agreed,
among other things, to assume responsibility for legal actions
existing at the time of, or initiated after, the spin-off in which
the Company is a defendant if such actions relate in any material
respect to the business of Live Nation. Pursuant to the
Agreement, Live Nation also agreed to indemnify the Company with
respect to all liabilities assumed by Live Nation, including those
pertaining to the claims in the pending lawsuits.
CNA FINANCIAL: Still Awaits Final Approval of MDL Settlement
------------------------------------------------------------
In August 2005, CNA Financial Corporation and certain insurance
subsidiaries were joined as defendants, along with other insurers
and brokers, in multidistrict litigation pending in the United
States District Court for the District of New Jersey, In re
Insurance Brokerage Antitrust Litigation, Civil No. 04-5184 (GEB).
The plaintiffs' consolidated class action complaint alleged bid
rigging and improprieties in the payment of contingent commissions
in connection with the sale of insurance. After various motions
and preliminary court rulings providing for further proceedings,
all parties executed final settlement documents and the plaintiffs
filed a motion for preliminary approval of the settlement in May
2011. In June 2011, the Court entered an order preliminarily
approving the settlement. A fairness hearing was held in
September 2011 to determine final approval of the settlement. The
Court took the matter under advisement and will issue a ruling in
due course.
As currently structured, the Company says the settlement will not
have a material impact on its results of operations. In addition,
the Company does not believe it has any material ongoing exposure
relating to this matter.
No further updates were reported in 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.
CSX CORP: Still Defends Fuel Surcharge Antitrust Litigation
-----------------------------------------------------------
CSX Corporation continues to defend class action lawsuits against
its subsidiary over its fuel surcharge practices, 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 30, 2011.
Class action lawsuits first filed in May 2007 have been
consolidated and are pending in federal court in the District of
Columbia against the Company's principal operating subsidiary, CSX
Transportation, Inc., and three other U.S.-based Class I
railroads. The court has not yet ruled on whether it is
appropriate to certify the case as a class action.
The lawsuits contain substantially similar allegations to the
effect that the defendants' fuel surcharge practices relating to
contract and unregulated traffic resulted from an illegal
conspiracy in violation of antitrust laws. The lawsuits seek
unquantified treble damages (three times the amount of actual
damages) allegedly sustained by purported class members,
attorneys' fees and other relief.
All but three of the lawsuits purport to be filed on behalf of a
class of shippers that allegedly purchased rail freight
transportation services from the defendants through the use of
contracts or through other means exempt from rate regulation
during defined periods commencing as early as June 2003 and that
were assessed fuel surcharges. Three of the lawsuits purport to
be on behalf of indirect purchasers of rail services. The court
denied the defendants' motion to dismiss the direct purchasers'
claims. The court dismissed all of the indirect purchasers'
causes of action seeking money damages, but did not dismiss their
request for injunctive relief. The dismissal was upheld on
appeal. Plaintiffs then petitioned the United States Supreme
Court to hear the case. The Supreme Court denied the petition in
December 2010.
One additional lawsuit was filed, but not served, by an individual
shipper. CSXT entered into a tolling agreement with this shipper
whereby the shipper agreed to dismiss the lawsuit against CSXT
without prejudice and CSXT agreed to extend the statute of
limitations for the claims asserted until the end of 2010. That
agreement has been extended to the end of 2012.
CSXT believes that its fuel surcharge practices are lawful.
Accordingly, CSXT intends to vigorously defend itself against the
purported class actions, which it believes are without merit.
While CSXT cannot predict the outcome of the private lawsuits, or
of any government investigations, charges or additional litigation
that may be filed in the future, the Company currently believes
that these matters will not have a material adverse effect on any
of its results of operations, financial condition and liquidity.
Penalties for violating antitrust laws can be severe, involving
both potential criminal and civil liability. If a material
adverse outcome were to occur and be sustained, it could have a
material adverse impact on the Company's financial condition,
results of operations or liquidity.
CSX Corporation, based in Jacksonville, Fla., is a leading
transportation company providing rail, intermodal and rail-to-
truck transload services. The Company's transportation network
spans approximately 21,000 miles with service to 23 eastern states
and the District of Columbia, and connects to more than 70 ocean,
river and lake ports.
DISCOVER FINANCIAL: Accused of Making Repeated & Harassing Calls
----------------------------------------------------------------
Andrew Steinfeld, on behalf of himself and all others similarly
situated v. Discover Financial Services, DFS Services, LLC, and
Discover Bank, Case No. 4:12-cv-01118 (N.D. Calif., March 6, 2012)
is brought for injunctive relief and damages resulting from
Discover's alleged illegal actions.
The Defendants have knowingly, willfully, and negligently
contacted the Plaintiff and Class Members on their cellular
telephones without their prior express consent, in violation of
the Telephone Consumer Protection Act, Mr. Steinfeld contends. He
alleges that he received repeated, harassing calls at all hours of
the day, and that because the calls were prerecorded, he had no
ability to request that the calls end or to voice his complaints
to a real person.
Mr. Steinfeld is a resident of San Francisco, California.
Discover Financial Services is a Delaware corporation and the
parent company of DFS Services and Discover Bank.
The Plaintiff is represented by:
Jonathan D. Selbin, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: jselbin@lchb.com
- and -
Daniel M. Hutchinson, Esq.
Kristen Law Sagafi, Esq.
LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Telephone: (415) 956-1000
Facsimile: (415) 956-1008
E-mail: dhutchinson@lchb.com
ksagafi@lchb.com
- and -
David P. Meyer, Esq.
Matthew R. Wilson, Esq.
MEYER WILSON CO., LPA
1320 DublinRoad, Ste. 100
Columbus, OH 43215
Telephone: (614) 224-6000
Facsimile: (614) 224-6066
E-mail: dmeyer@meyerwilson.com
mwilson@meyerwilson.com
DISCOVER CARD: Still Awaits OK of Protection Fee Suit Settlement
----------------------------------------------------------------
Discover Card Execution Note Trust is still awaiting court
approval of its global settlement of eight class action lawsuits
over its payment protection fee product, according to the
Company's February 21, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
November 30, 2011.
As of April 30, 2011, there were eight putative class action cases
pending in relation to the sale of Discover's payment protection
fee product. Each of these lawsuits challenges Discover's
marketing practices with respect to marketing its payment
protection fee product to its cardmembers under various state laws
and the Truth in Lending Act. The plaintiffs seek monetary
remedies including unspecified damages and restitution, attorneys'
fees and costs, and various forms of injunctive relief including
an order rescinding the payment protection fee product enrollments
of all class members. All of the cases have been transferred to
the U.S. District Court for the Northern District of Illinois. In
June 2011, Discover and class counsel entered into a preliminary
global settlement of all of the pending class actions. The
settlement is subject to judicial approval.
No further updates were reported in the Company's latest SEC
filing.
DISCOVER CARD: "Bradley" Suit Still Pending in Calif.
-----------------------------------------------------
Discover Financial Services continues to defend itself against a
class action lawsuit commenced by Walter Bradley, according to
Discover Card Execution Note Trust's February 21, 2012, Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended November 30, 2011.
On November 30, 2011, a class action lawsuit was filed against
Discover Financial Services by a Discover Bank cardmember in the
U.S. District Court for the Northern District of California
(Walter Bradley et al. v. Discover Financial Services). The
plaintiff alleges that Discover contacted him, and members of the
class he seeks to represent, on their cellular telephones without
their express consent in violation of the Telephone Consumer
Protection Act ("TCPA"). Plaintiff seeks statutory damages for
alleged negligent and willful violations of the TCPA, attorneys'
fees, costs and injunctive relief. The TCPA provides for
statutory damages of $500 for each violation ($1,500 for willful
violations). Discover Bank is not in a position at this time to
assess the likely outcome or its exposure, if any, with respect to
this matter, but will seek to vigorously defend against all claims
asserted by the plaintiff.
No further updates were reported in the Company's latest SEC
filing.
DJO FINANCE: Suit Over Drug Pain Pump Still Pending in Canada
-------------------------------------------------------------
DJO Finance LLC continues to defend a class action lawsuit in
Canada related to a disposable drug infusion pump product,
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.
The Company is currently named as one of several defendants in a
number of product liability lawsuits involving approximately 87
plaintiffs in U.S. cases and a lawsuit in Canada which has been
granted class action status, related to a disposable drug infusion
pump product (pain pump) manufactured by two third party
manufacturers that the Company distributed through its Bracing and
Vascular segment. The Company sold pumps manufactured by one
manufacturer from 1999 to 2003 and then sold pumps manufactured by
a second manufacturer from 2003 to 2009. The Company discontinued
its sale of these products in the second quarter of 2009. These
cases have been brought against the manufacturers and certain
distributors of these pumps, and in some cases, the manufacturers
of the anesthetics used in these pumps. All of these lawsuits
allege that the use of these pumps with certain anesthetics for
prolonged periods after certain shoulder surgeries has resulted in
cartilage damage to the plaintiffs. The lawsuits allege damages
ranging from unspecified amounts to claims of up to $10 million.
Many of the lawsuits which have been filed in the past three years
have named multiple pain pump manufacturers and distributors
without having established which manufacturer manufactured or sold
the pump in issue. In the past three years, the Company has been
dismissed from more than 350 cases when product identification was
later established showing that it did not sell the pump in issue.
At present, the Company is named in approximately 60 lawsuits in
which product identification has yet to be determined and, as a
result, the Company believes that it will be dismissed from a
meaningful number of such cases in the future. In the past two
years, the Company has entered into settlements with plaintiffs in
approximately 60 pain pump lawsuits. Of these, the Company has
settled approximately 34 cases in joint settlements involving its
first manufacturer and it has settled approximately 26 cases
involving its second manufacturer in which the manufacturer's
carrier has made some contribution to the Company's settlement
amount or any joint settlement, but for which the Company is
seeking indemnity for the balance of its costs.
As of December 31, 2011, the range of potential loss is not
estimable.
Vista, California-based DJO Finance LLC is a developer,
manufacturer and distributor of medical devices that provide
solutions for musculoskeletal health, vascular health and pain
management.
EPICOR SOFTWARE: Calif. Suit to Proceed to Discovery This Year
--------------------------------------------------------------
A consolidated merger-related lawsuit in California is expected to
proceed to discovery in early 2012, according to Epicor Software
Corporation's February 21, 2012, Form 10-Q filing with the U.S.
Securities and Exchange Commission for the quarter ended December
31, 2011.
On March 25, 2011 ("Inception"), Eagle Parent, Inc. ("Eagle") was
formed under Delaware law at the direction of Apax Partners, L.P.
and Apax Partners, LLC solely for the purpose of acquiring
Activant Group Inc. ("AGI"), the parent company of Activant
Solutions Inc., the Predecessor for reporting purposes, (the
"Predecessor" or "Activant"), and Epicor Software Corporation
("Legacy Epicor"). On April 4, 2011, Eagle entered into an
Agreement and Plan of Merger with AGI, Activant and certain other
parties pursuant to which Eagle agreed to acquire AGI and
Activant. Also on April 4, 2011, Eagle entered into an Agreement
and Plan of Merger with Legacy Epicor and certain other parties,
pursuant to which Eagle agreed to acquire Legacy Epicor. On
May 16, 2011, Eagle consummated the acquisitions of AGI, Activant
and Legacy Epicor, following which, Legacy Epicor, AGI and
Activant became wholly-owned subsidiaries of Eagle. These
acquisitions and the related transactions are referred to
collectively as the "acquisition" or "acquisitions." Prior to
May 16, 2011, Eagle did not engage in any business except for
activities related to its formation, the acquisitions and
arranging the related financing. Prior to the acquisitions, there
were no related party relationships between Eagle and AGI,
Activant, or Legacy Epicor.
Following the announcement in April 2011 of the Merger Agreement
with affiliates of Apax Partners, four (4) putative stockholder
class action lawsuits were filed in the Superior Court of
California, Orange County, and two (2) such lawsuits were filed in
Delaware Chancery Court. The actions filed in California are
entitled Kline v. Epicor Software Corp. et al.,(filed Apr. 6,
2011); Tola v. Epicor Software Corp. et al., (filed Apr. 8, 2011);
Watt v. Epicor Software Corp. et al., (filed Apr. 11, 2011),
Frazer v. Epicor Software et al., (filed Apr. 15, 2011). The
actions pending in Delaware are entitled Field Family Trust Co. v.
Epicor Software Corp. et al., (filed Apr. 12, 2011) and Hull v.
Klaus et al.,(filed Apr. 22, 2011). Amended complaints were filed
in the Tola and Field Family Trust actions on
April 13, 2011, and April 14, 2011, respectively. Plaintiff Kline
dismissed his lawsuit on April 18, 2011, and shortly thereafter
filed an action in federal district court. On May 11, 2011, the
Superior Court for the County of Orange entered an Order
consolidating the Tola, Watt, and Frazer cases pursuant to a joint
stipulation of the parties.
The state court lawsuits alleged that the Legacy Epicor directors
breached their fiduciary duties of loyalty and due care, among
others, by seeking to complete the sale of Legacy Epicor to funds
advised by Apax through an allegedly unfair process and for an
unfair price and by omitting material information from the
Solicitation/Recommendation Statement on Schedule 14D-9 that
Legacy Epicor filed on April 11, 2011, with the SEC. The
complaints also alleged that Legacy Epicor, Apax Partners, L.P.
and Element Merger Sub, Inc. aided and abetted the directors in
the alleged breach of fiduciary duties. The plaintiffs sought
certification as a class and relief that included, among other
things, an order enjoining the tender offer and merger, rescission
of the merger, and payment of plaintiff's attorneys' fees and
costs. On April 25, 2011, plaintiff Hull filed a motion in
Delaware Chancery Court for a preliminary injunction seeking to
enjoin the parties from taking any action to consummate the
transaction. On April 28, 2011, plaintiff Hull withdrew this
motion. On May 2, 2011, after engaging in discovery, plaintiffs
advised that they did not intend to seek injunctive relief in
connection with the merger, but would instead file an amended
complaint seeking damages in California Superior Court following
the consummation of the tender offer. On May 11, 2011, the
Superior Court for the County of Orange entered an Order
consolidating the Tola, Watt, and Frazer cases pursuant to a joint
stipulation of the parties. Plaintiffs filed a Second Amended
Complaint on September 1, 2011, and the Company filed a demurrer
(motion to dismiss) to this amended complaint on September 29,
2011. The demurrers were heard on December 12, 2011, and the
Court overruled them. The matter is expected to proceed to
discovery in early 2012.
Based in Irvine, California, Epicor Software delivers business
software solutions to the manufacturing, distribution, retail,
hospitality and services industries.
FMC CORP: Hydrogen Peroxide-Related Suits in Canada Still Dormant
-----------------------------------------------------------------
In 2005 after public disclosures of the U.S. federal grand jury
investigation into the hydrogen peroxide industry (which resulted
in no charges brought against FMC Corporation) and the filing of
various class actions in U.S. federal and state courts, which have
all been settled, putative class actions against the Company and
five other major hydrogen peroxide producers were filed in
provincial courts in Ontario, Quebec and British Columbia under
the laws of Canada. The other five defendants have settled these
claims for a total of approximately $20.6 million. On
September 28, 2009, the Ontario Superior Court of Justice
certified a class of direct and indirect purchasers of hydrogen
peroxide from 1994 to 2005. The Company's motion for leave to
appeal the class certification decision was denied in June 2010.
Since then, the case has been largely dormant. Neither side has
produced documents, although the parties have exchanged document
requests as well as information concerning document retention and
storage. Since the proceedings are in the preliminary stages with
respect to the merits, the Company says it is unable to develop a
reasonable estimate of its potential exposure of loss at this
time. The Company intends to vigorously defend these matters.
No further updates were reported in 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.
FORD MOTOR CREDIT: Appeal in Class Suit vs. "Agrawal" Pending
-------------------------------------------------------------
Ford Motor Credit Company LLC's appeal in the class action lawsuit
it commenced against Sudesh Agrawal remains pending, 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.
On January 18, 2011, a state trial court judge in Cuyahoga County,
Ohio, certified a nationwide class action, Ford Motor Credit
Company v. Sudesh Agrawal, with an Ohio subclass in a counterclaim
arising out of a collection action. Class claimants allege breach
of contract, fraud, and statutory violations for Ford Credit's
lease-end excess wear and use charges. Class claimants allege
that the standard applied by Ford Credit in determining the
condition of vehicles at lease-end is different than the standard
set forth in claimants' leases. A three-member panel of the Court
of Appeals of Ohio, Eighth Appellate District, affirmed nationwide
class certification and certification of an Ohio subclass. Ford
Credit is appealing the matter.
The Company says litigation is subject to many uncertainties and
the outcome is not predictable. It is reasonably possible that
matters could be decided unfavorably to the Company. Although the
amount of liability at December 31, 2011, with respect to
litigation matters cannot be ascertained, the Company believes
that any resulting liability should not materially affect its
operations, financial condition, and liquidity.
FORD MOTOR: Appeal in Apartheid Litigation Remains Pending
----------------------------------------------------------
Along with two other prominent multinational companies, Ford Motor
Company is a defendant in purported class action lawsuits seeking
unspecified damages on behalf of South African citizens who
suffered violence and oppression under South Africa's apartheid
regime. The lawsuits allege that the defendant companies aided
and abetted the apartheid regime and its human rights violations.
These cases, collectively referred to as In re South African
Apartheid Litigation, were initially filed in 2002 and 2003, and
are being handled together as coordinated "multidistrict
litigation" in the U.S. District Court for the Southern District
of New York. The District Court dismissed these cases in 2004,
but in 2007 the U.S. Court of Appeals for the Second Circuit
reversed and remanded the cases to the District Court for further
proceedings. Amended complaints were filed during 2008; motions
to dismiss have been granted in part and denied in part, and
defendants' appeal to the U.S. Court of Appeals is pending.
No further updates were reported in 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.
FORD MOTOR: Appeal in Sales Procedure Suit Remains Rending
----------------------------------------------------------
Ford Motor Company's appeal in a class action lawsuit over its
medium/heavy truck sales procedure remains pending, the Company
disclosed in its February 21, 2012, Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended
December 31, 2011.
A Medium/Heavy Truck Sales Procedure Class Action pending in the
Ohio state court system alleges that Ford breached its Sales and
Service Agreement with Ford truck dealers by failing to publish to
all Ford dealers all price concessions that were approved for any
dealer. The trial court certified a nationwide class consisting
of all Ford dealers who purchased from Ford any 600-series or
higher truck from 1987 to 1997, and granted plaintiffs' motion for
summary judgment on liability. In February 2011, the jury awarded
$4.5 million in damages to the named plaintiff dealer, as
previously reported. In June 2011, the trial court applied the
jury's findings with regard to the named plaintiff to all dealers
in the class, entering a judgment of approximately $2 billion in
damages (comprised of about $800 million in damages, and $1.2
billion in pre-judgment interest). The trial court also denied
the Company's motion to decertify the class. The Company has
appealed, and it believes the law supports its position.
FORD MOTOR: Summary Judgment Granted in Calif. Antitrust Suit
-------------------------------------------------------------
A California court has recently granted Ford Motor Company's
motion for summary judgment, 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.
Eighty-three purported class actions on behalf of all purchasers
of new motor vehicles in the United States since January 1, 2001,
have been filed in various state and federal courts against
numerous defendants, including the Company. The complaints
allege, among other things, that vehicle manufacturers, aided by
dealer associations, conspired to prevent the sale to U.S.
citizens of vehicles produced for the Canadian market and sold by
dealers in Canada at lower prices than vehicles sold in the United
States. The complaints seek injunctive relief under federal
antitrust law and treble damages under federal and state antitrust
laws. The federal actions were consolidated for coordinated
pretrial proceedings in the U.S. District Court for the District
of Maine and have been dismissed. Cases remain pending in state
courts in Florida, New Mexico, Tennessee, and Wisconsin. In
California, where a statewide class had been certified, the court
recently granted Ford's motion for summary judgment; an appeal by
the plaintiffs is possible.
HAPPINESS IS PET: Class Action Plaintiffs Expected to Grow
----------------------------------------------------------
WLS 890 Am reports that the list of plaintiffs in a class action
filed against the Happiness Is Pets chain is likely to grow.
Ed Clinton says his phone has been ringing a lot, with unhappy dog
owners on the other end of the line.
The Chicago attorney filed a class action lawsuit in mid-February
on behalf of six people who assert they were misled by employees
of the Happiness Is Pets chain, including its Naperville store,
when they bought puppies that later developed serious health
problems.
The list of plaintiffs is likely to grow if the case moves into
the next phase, as Clinton and his clients expect it will.
"We've been contacted by many people, but we have to go through a
process of vetting them and sorting out whether they are
appropriate class members," Mr. Clinton said, adding that he is
working to establish how many cases of canine distemper can be
traced to the pet shop. "I think that distemper is the main
issue."
In some cases, he said, potential litigants don't qualify because
the statute of limitations has expired.
The Naperville attorney representing store owner Ronald Berning
said he and his client "probably" will respond to the complaint.
"It'll still be a couple weeks before we do so," David Fish of The
Fish Law Firm said on March 5. "We're still working on our
strategy."
Until there is some response to the complaint, Mr. Clinton is
holding off on adding more names to the suit.
"Do have more people? Yes," he said. "Am I going to add them?
It's a definite maybe."
Mr. Fish has said that the lawsuit "has no merit" and believes it
will be dismissed.
Mr. Berning has emphasized that the illnesses constitute "an
extremely isolated incident," and expressed confidence that the
problem was caught early.
"We were assured by our veterinarian that we have exceeded the
time period for incubation and that no puppies in the store are
affected," Mr. Berning wrote in an e-mail Jan. 23.
Four cases to date
The owners of at least four puppies bought at Happiness Is Pets in
recent months say their dogs were diagnosed with distemper,
including one that died.
The Wilson family of Downers Grove reported that Lily, a 4-month-
old yellow Labrador they had purchased at the pet shop, succumbed
Jan. 9. Other puppies believed to be impacted by the outbreak at
the store are recovering from the highly contagious and sometimes
fatal virus.
The dachshund from Aurora named Dakota, nearly 6 months old,
appears to be on the mend.
"Her tear production continues to be an issue resulting in a film
buildup on her eyes," her owner Bryan Phillips, one of the suit's
plaintiffs, wrote in an e-mail. "I've also had her re-vaccinated
since the accuracy of her pet record is in question."
The good news is that Dakota will probably be OK.
"The vet believes the distemper virus is no longer in her system
and if she was going to succumb to it, it would have happened by
now," wrote Mr. Phillips, who had the cost of his dog refunded but
used a veterinarian who is not on the store's list of affiliated
facilities, so he is covering the mounting bills out of his own
pocket. "This is amazing because so few puppies survive
distemper."
Ellie, a goldendoodle that went home in December with Brittany
Michnick, may be out of the woods as well. When she was in the
throes of distemper a month ago, Ellie showed symptoms of a severe
respiratory ailment and was twitching and having seizures about 20
times a day, Ms. Michnick said.
"She's definitely acting more like a puppy now," said
Ms. Michnick, a West Chicago resident who received her dog's
positive diagnosis for distemper on Feb. 10.
After settling with the Berning family for $2,269.07 -- to cover
the cost of the dog and all of her veterinary bills, toys, food
and Ms. Michnick's lost income after she needed a day off to care
for Ellie -- she signed an agreement not to pursue legal action
against Happiness Is Pets.
The store agreed to initiate the paperwork for a refund when
Lissett Dzieglo and Mark Jillich notified the management that
their miniature pinscher puppy, Gunner, was found to have
distemper as well, but the Naperville couple joined the class
action.
They noticed the tiny dog developed a persistent cough just a few
days after they brought him home from Happiness Is Pets.
Once they learned what they were dealing with, they moved into a
more aggressive treatment, Ms. Dzieglo said. Over the past month,
the repeated rounds of antibiotics appear to have led to
improvement.
"He still has his cough. Right now we're trying to see if it will
subside completely," said Ms. Dzieglo, adding that Gunner is still
sneezing, but the seizures have ceased. "As of now, we're hoping
that it will be something that he makes a full recovery from."
Animal activists such as Naperville's Dee Santucci, a protest
organizer for The Puppy Mill Project, place the blame for the
puppies' misery, and its substantial expense, on careless
retailers and breeders, alleging they cut corners to maximize
their bottom line. They also take deliberate steps to cover the
true health condition of puppies that may be ill, critics charge.
"The pet store owners are making huge profits at the expense of
the animals and their neighbors during very difficult financial
times, causing financial and emotional hardship (that) is
unconscionable," Ms. Santucci wrote in an e-mail to The Sun.
Mr. Fish has defended Mr. Berning, saying that his client was
appointed to a state task force to oversee pet shops. Because of
that, Mr. Berning has worked to create laws that protect store-
sold puppies, he said.
Mr. Fish also points out that the chain provides a health warranty
for every puppy it sells. The document, initialed by customers to
indicate their acceptance, gives comprehensive protection and free
veterinary care at one of the store's five partner clinics in the
pets' first two weeks home from the store. It provides limited
coverage against "life-threatening congenital defects" for their
first year of life.
No matter how completely their pets recover, the dogs' owners say
what they have experienced in puppyhood will leave a mark.
"This whole ordeal has altered Dakota's development with
socialization. We have to keep her in quarantine from other dogs
and we cannot seek out (obedience) training services,"
Mr. Phillips wrote. "I feel like Dakota and our home is a
biohazard. We'll have to see how many long term effects there are
from this disease as time progresses."
Ms. Dzieglo and Mr. Jillich are eager to wean Gunner off his
medications so he can begin his shots.
"He's trying to actually to be a puppy now," Ms. Dzieglo said.
"It's rough, because he's tired."
JC PENNEY: Falsely Advertised Jewelry Products, Class Suit Says
---------------------------------------------------------------
Maria Torres, Gabriel Rojas, and Ian Kerner, individually and on
behalf of all others similarly situated v. JC Penney Corporation,
Inc., and JC Penney Company Inc., Case No. 4:12-cv-01105 (N.D.
Calif., March 6, 2012) assert that the Defendants engaged in the
unfair, unlawful, deceptive, and fraudulent practice of falsely
advertising their jewelry.
Specifically, JC Penney failed to disclose the use of rhodium as a
plating or finish, failed to properly identify the country of
origin, failed to properly disclose the size of diamonds in its
jewelry, misrepresented the number of diamonds in its jewelry,
failed to disclose the use of hollow or rolled gold, and otherwise
failed to comply with the Federal Trade Commission Guides for the
Jewelry Industry, the Plaintiffs allege.
Ms. Torres is a resident of Van Nuys, California. Mr. Rojas is a
resident of Corona, California. Mr. Kerner is a resident of West
Hollywood, California.
J.C. Penney Company is a foreign corporation headquartered in
Plano, Texas. J.C. Penney Corporation is a subsidiary of J.C.
Penney Company.
The Plaintiffs are represented by:
G. Richard Baker, Esq.
BAKER LAW PC
524 Union Street, #213
San Francisco, CA 94133
Telephone: (415) 295-4814
Facsimile: (800) 886-6556
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
Facsimile: (205) 714-7177
E-mail: bmiano@mianolaw.com
LENOVO: Recalls 50,500 ThinkCentre Desktop M70z & M90z Computers
----------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
Lenovo, of Morrisville, North Carolina, announced a voluntary
recall of about 50,500 units of Lenovo ThinkCentre M70z and M90z
desktop computers. Consumers should stop using recalled products
immediately unless otherwise instructed. It is illegal to resell
or attempt to resell a recalled consumer product.
A defect in an internal component in the power supply can overheat
and pose a fire hazard.
The firm received reports of one fire incident and one smoke
incident in the U.S. No injuries have been reported.
The recalled all-in-one desktop computers, or PCs, are flat-panel
monitors with the PC integrated into the monitor housing itself.
The power supplies are also inside the monitor or PC housing. The
computer chassis has a matte black finish with the brand name
"ThinkCentre" in the lower left hand corner of the monitor front.
The recalled desktop model numbers are M90z and M70z along with
the serial number and manufacturing date code can be found on a
label on the underside of the unit.
Models Date Codes
------------- ------------
M70z and M90z 1001 to 1012
M70z and M90z 1101 to 1112
M70z and M90z 001 to 012
M70z and M90z 101 to 112
Only certain of the M70z and M90z computers built in this time
frame are affected. Consumers will need to check the serial
number on their computer with Lenovo to determine if it is subject
to this recall. Pictures of the recalled products are available
at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12129.html
The recalled products were manufactured in Mexico and sold online
at Lenovo's Web site, by telephone and direct sales through Lenovo
authorized distributors nationwide from May 2010 through January
2012 for about $500 for the M70z model and $800 for the M90z
model.
Consumers should immediately stop using the computers, unplug the
power supply and contact the firm to determine if your computer is
included in the recall and to schedule an appointment for a free
replacement of the power supply. For additional information,
contact Lenovo toll-free at (855)248-2194 anytime, or visit the
firm's Web site at http://www.lenovo.com/aiopsurecall/
LORILLARD INC: Awaits Ruling on Motions to Dismiss Kansas Suit
--------------------------------------------------------------
Lorillard, Inc. is awaiting a court decision on motions to dismiss
an antitrust class action lawsuit in Kansas filed against its
subsidiary, 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.
Approximately 30 antitrust lawsuits were filed in 2000 and 2001 on
behalf of putative classes of consumers in various state courts
against cigarette manufacturers. The lawsuits all alleged that
the defendants entered into agreements to fix the wholesale prices
of cigarettes in violation of state antitrust laws which permit
indirect purchasers, such as retailers and consumers, to sue under
price fixing or consumer fraud statutes. More than 20 states
permit such lawsuits. Lorillard Tobacco was a defendant in all
but one of these indirect purchaser cases. Lorillard, Inc. was
not named as a defendant in any of these cases. Four indirect
purchaser lawsuits, in New York, Florida, New Mexico and Michigan,
thereafter were dismissed by courts in those states. The actions
in all other states, except for Kansas, were either voluntarily
dismissed or dismissed by the courts.
In the Kansas case, the District Court of Seward County certified
a class of Kansas indirect purchasers in 2002. In July 2006, the
Court issued an order confirming that fact discovery was closed,
with the exception of privilege issues that the Court determined,
based on a Special Master's report, justified further fact
discovery. In October 2007, the Court denied all of the
defendants' privilege claims, and the Kansas Supreme Court
thereafter denied a petition seeking to overturn that ruling. All
of the defendants have filed motions for summary judgment seeking
dismissal of the Kansas lawsuit, which motions were argued in
January 2012.
As of February 9, 2012, the District Court of Seward County had
not ruled on the motions.
LORILLARD INC: "Cleary" Class Suit vs. Unit Has Been Concluded
--------------------------------------------------------------
The class action lawsuit involving a Lorillard, Inc. subsidiary,
captioned Cleary v. Philip Morris Incorporated, et al., has been
concluded, 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 a Class Action Case, Cleary v. Philip Morris Incorporated, et
al. (U.S. District Court, Northern District, Illinois, filed
June 3, 1998), a court allowed plaintiffs to amend their complaint
in an existing class action to assert claims on behalf of a
subclass of individuals who purchased "light" cigarettes from the
defendants, but it subsequently dismissed the "light" cigarettes
claims asserted against Lorillard Tobacco Company. In June 2010,
the court dismissed plaintiffs' remaining claims, and it entered
final judgment in defendants' favor. In August 2011, the U.S.
Court of Appeals for the Seventh Circuit affirmed the final
judgment entered in defendants' favor. In November 2011, the U.S.
Court of Appeals for the Seventh Circuit denied plaintiffs' motion
for reconsideration of the order affirming the dismissal of the
case. Plaintiffs did not pursue an appeal to the U.S. Supreme
Court, and the case was concluded. Lorillard Tobacco was a
defendant in Cleary. Lorillard, Inc. was not a defendant in
Cleary.
LORILLARD INC: Continues to Defend Product Liability Suits
----------------------------------------------------------
Lorillard, Inc. continues to defend two product liability class
action lawsuits involving its subsidiary and former parent,
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.
For periods presented in the Annual Report on Form 10-K prior to
June 10, 2008, Lorillard, Inc. was a wholly-owned subsidiary of
Loews Corporation, a publicly traded company listed on the New
York Stock Exchange. The Company's results of operations and
financial condition were included as a separate reporting segment
in Loews's financial statements and filings with the SEC.
Beginning in 2002 and through June 10, 2008, Loews had also issued
a separate class of its common stock, referred to as the "Carolina
Group Stock," to track the economic performance of Loews's 100%
interest in Lorillard, Inc. and certain liabilities, costs and
expenses of Loews and Lorillard arising out of or related to
tobacco or tobacco-related businesses. On June 10, 2008, the
Company began operating as an independent, publicly traded company
pursuant to its separation from Loews (the "Separation").
In connection with the Separation, Lorillard entered into a
separation agreement with Loews on May 7, 2008 (the "Separation
Agreement"), and agreed to indemnify Loews and its officers,
directors, employees and agents against all costs and expenses
arising out of third party claims (including, without limitation,
attorneys' fees, interest, penalties and costs of investigation or
preparation for defense), judgments, fines, losses, claims,
damages, liabilities, taxes, demands, assessments and amounts paid
in settlement based on, arising out of or resulting from, among
other things, Loews's ownership of or the operation of Lorillard
and its assets and properties, and its operation or conduct of its
businesses at any time prior to or following the Separation
(including with respect to any product liability claims).
Loews is a defendant in two pending product liability cases, both
of which are purported Class Action Cases. Lorillard Tobacco
Company also is a defendant in both of the product liability cases
in which Loews is involved. Pursuant to the Separation Agreement,
Lorillard is required to indemnify Loews for the amount of any
losses and any legal or other fees with respect to such cases.
LORILLARD INC: Fee Application in "Scott" Suit Remains Pending
--------------------------------------------------------------
An application for attorneys' fees, for costs and expenses, and
for an award to class representatives remains pending in the
lawsuit captioned Scott v. The American Tobacco Company, et al.,
according to Lorillard, Inc.'s February 21, 2012, Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2011.
In one Class Action Case against Lorillard Tobacco Company, Scott
v. The American Tobacco Company, et al. (District Court, Orleans
Parish, Louisiana, filed May 24, 1996), a Louisiana jury awarded
damages to the certified class in 2004. The jury's award was
reduced on two separate occasions in response to defendants'
appeals, but defendants exhausted their appeals and have paid the
final judgment. In August 2011, Lorillard Tobacco paid
approximately $69.7 million, or one-fourth of the award, to
satisfy its portion of the final judgment and the interest that
accrued while appeals were pending.
In 1997, Scott was certified a class action on behalf of certain
cigarette smokers resident in the State of Louisiana who desire to
participate in medical monitoring or smoking cessation programs
and who began smoking prior to September 1, 1988, or who began
smoking prior to May 24, 1996, and allege that defendants
undermined compliance with the warnings on cigarette packages.
In the fourth quarter of 2007, Lorillard, Inc. recorded a pretax
provision of approximately $66 million for this matter which was
included in selling, general and administrative expenses on the
consolidated statements of income and was reclassified from other
liabilities to accrued liabilities in the second quarter of 2010
on the consolidated balance sheets.
Counsel for the certified class has filed a motion for attorneys'
fees, for costs and expenses, and for an award to the class
representatives. Plaintiffs' counsel contends they incurred
approximately $59.0 million in attorneys' fees, and further
contend that the value of those fees, given the age of the case,
is approximately $92.0 million. Plaintiffs' counsel request that
a multiplier as high as seven be applied to any award ordered by
the court. Plaintiffs' counsel ask the court to order defendants
to pay an award in excess of $300.0 million, but request in the
alternative that they be awarded, from the fund awarded to the
class, 33%-40% of the amount of that fund. In addition,
plaintiffs' counsel seeks approximately $13.4 million in costs and
expenses. Plaintiffs' counsel further request that the court
order a "substantial" award of an unspecified amount to the two
class representatives for their services.
As of February 9, 2012, the court had not ruled on plaintiffs'
counsels' applications.
LORILLARD INC: Hearing in "Brown" Suit vs. Unit Set for March
-------------------------------------------------------------
Argument of a motion for class decertification in a class action
lawsuit against a Lorillard, Inc. subsidiary is scheduled for
March 2012, 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 a Class Action Case pending against Lorillard Tobacco Company,
Brown v. The American Tobacco Company, Inc., et al. (Superior
Court, San Diego County, California, filed June 10, 1997), the
California Supreme Court in 2009 vacated an order that had
previously decertified a class and returned Brown to the trial
court for further activity. The class in Brown is composed of
residents of California who smoked at least one of defendants'
cigarettes between June 10, 1993, and April 23, 2001, and who were
exposed to defendants' marketing and advertising activities in
California. The trial court has permitted plaintiffs to assert
claims based on the alleged misrepresentation, concealment and
fraudulent marketing of "light" or "ultra-light" cigarettes.
In January 2012, defendants filed a motion for class
decertification. The court has scheduled argument of this motion
for March 2012. Trial is set for October 5, 2012. Lorillard,
Inc. is not a defendant in Brown.
MANULIFE FINANCIAL: Class Action Trial Begins in Barbados
---------------------------------------------------------
Tara Perkins, writing for The Globe and Mail, reports that about
8,000 people in Barbados -- 3 per cent of island's population --
are suing Manulife Financial Corp., alleging that it bilked them
of money they should have received when the insurer became a
public company.
A trial to determine the outcome of the class-action lawsuit began
in Toronto last week, after lawyers assembled five boxes stacked
with about 1,500 documents. Both current Manulife chief executive
officer Don Guloien and former CEO Dominic D'Alessandro are
expected to testify.
The unusual case pits residents of the sun-drenched Caribbean
nation, which is a five-hour flight from Toronto, against Canada's
second-largest insurer by stock market value. The key issue at
play is the ownership rights that policy holders have in mutual
insurance companies when they "demutualize," or convert to a
traditional corporate structure.
The case comes to trial just as Ottawa is in the process of
determining the rules by which Canada's property and casualty
insurers will be allowed to demutualize. And it's yet another
headache for Manulife, which was walloped during the stock market
meltdown of 2008 and is coping with the financially damaging
prospect of low interest rates for years to come.
Mutual insurers are essentially owned by their participating
policy holders. In a demutualization, their ownership is
converted into shares of the company. Manulife paid out
$8.3-billion in cash and shares to participating policy holders
around the world, primarily in Canada, when it demutualized in
1999 -- about three years after selling its operations in
Barbados.
The lawsuit alleges that Manulife already knew that it would be
demutualizing when it did the sale, yet took no steps to protect
the Barbadian policy holders' rights to a piece of the action.
Among the thousands of plaintiffs in the class is Wismar Greaves,
who bought three participating policies from Manulife before he
became Supervisor of Insurance in the Barbados Ministry of
Finance.
The trial, which is expected to be lengthy, began on March 5 and
will be heard during the weeks to come by Mr. Justice Frank
Newbould of the Ontario Superior Court. Before going to trial,
class-action suits must go through many preliminaries, including
certification, and there is generally a long wait for a judge.
This one was further delayed because one of the key lawyers for
the plaintiffs had a stroke.
The suit alleges that Manulife knew back in 1994, when it hired
Mr. D'Alessandro away from his post as CEO of Laurentian Bank,
that it would likely be demutualizing. The lawsuit alleges that
when Manulife sold its operations in Barbados, its executives took
deliberate actions that prevented participating policy holders in
that country from receiving payouts.
"There is no doubt that there was some internal debate within
Manulife on this point," Linda Rothstein, one of the lawyers for
the class, told the judge.
A lawyer for Manulife told the court that the class members had no
right to demutualization benefits because they were no longer
holding policies with Manulife when it announced it was
demutualizing. Mr. D'Alessandro was still cautiously exploring
many avenues for the company back in 1996 and 1997, and it is
possible for firms to demutualize without paying distributions,
she said.
Manulife began operating in Barbados in the 1890s. A century
later, when it sold the business to Life of Barbados, it was the
leading provider of life insurance in the country.
PEP BOYS: Faces Overtime Class Action in California
---------------------------------------------------
Courthouse News Service reports that Pep Boys stiffs workers for
overtime and doesn't pay them for all the hours they work, a class
action claims in Superior Court.
A copy of the Complaint in Gonzalez v. Pep Boys, et al., Case No.
RIC 1203286 (Calif. Super. Ct., Riverside Cty.), is available at:
http://www.courthousenews.com/2012/03/08/PepBoys.pdf
The Plaintiff is represented by:
Brian J. Mankin, Esq.
Michael T. Tam, Esq.
James H. Olson, Esq.
FERNANDEZ & LAUBY LLP
4590 Allstate Drive
Riverside, CA 92501
Telephone: (951) 320-1444
E-mail: bjm@fernandezlauby.com
SOUTHWEST AIRLINES: Faces Class Action Over Free Drink Coupons
--------------------------------------------------------------
Jack Bouboushian at Courthouse News Service reports that Southwest
Airlines must face a second class action related to the free drink
coupons that it no longer honors, a federal judge ruled.
For a number of years, Southwest Airlines offered free drink
coupons to business-class customers and frequent fliers in the
Rapid Rewards program. The coupons, which did feature expiration
dates, were redeemable on any Southwest flight for drinks that
would otherwise cost $5.
In August 2010, however, Southwest announced that its flexible
policy was hurting the company. "To help purge the system of
these excess coupons, we will start enforcing expiration dates on
coupons over the course of the next year," Southwest CEO
Mike Hafner said in company blog post.
"Beginning [Thurs] day, Southwest Airlines will only accept
Business Select drink coupons on the day of travel which allows
customers to use the coupon for the flight it was purchased," Mr.
Hafner continued.
Future coupons for frequent fliers would include an expiration
date going forward, and older coupons without expiration dates
would be accepted through August 2011.
In November 2011, Adam Levitt and Herbert Malone filed a class
action on behalf of all persons with unredeemed Southwest drink
coupons that were obtained with the purchase of Business Select
tickets. They asserted claims for breach of contract, unjust
enrichment, and violations of the Illinois and Pennsylvania
Consumer Fraud Acts.
Citing pre-emption under the Airline Deregulation Act (ADA), U.S.
District Judge Matthew Kennelly dismissed all but the breach-of-
contract claim on March 5.
"The ADA provides that a state may not enact or enforce a law,
regulation, or other provision having the force and effect of law
related to a price, route, or service of an air carrier that may
provide air transportation under this subpart," Judge Kennelly
said. "It is not necessary for a state statute to refer expressly
to airlines in order for a claim under the statute involving an
airline's services to be preempted."
Southwest had also moved to stay the case pending the outcome of a
class action it faces in Alabama, but Judge Kennelly refused after
finding that the Alabama case, captioned Grimsley v. Southwest
Airlines Co., apparently plans to cover frequent fliers only.
"As plaintiffs argue, it appears likely that the arguments in the
present case will concern the legal implications of plaintiffs'
alleged purchases of individual airline tickets that came with the
coupons, whereas those in Grimsley will focus on whether any
provision of the Southwest Airlines Rapid Rewards Program allows
Southwest to revoke a coupon," the judge said.
"Finally, the Southwest blog post that announced the company's
decision to cease honoring the coupons includes separate
paragraphs describing the changes for Business Select and Rapid
Rewards customers and the differing terms that will apply in the
future to the two types of coupons," Judge Kennelly concluded.
A copy of the Memorandum Opinion and Order in Levitt, et al. v.
Southwest Airlines Co., Case No. 11-cv-08176 (N.D. Ill.), is
available at http://is.gd/PcA4zX
STATE OF ARIZONA: Sued Over Inadequate Medical Care in Prisons
--------------------------------------------------------------
Jamie Ross at Courthouse News Service reports that Arizona
provides "grossly inadequate" medical care to prisoners,
subjecting them to "including unnecessary pain and suffering,
preventable injury, amputation, disfigurement, and death," inmates
and an advocacy group say in a federal class action.
The 78-page complaint rehearses a litany of abuses inside state
prisons.
It claims Arizona Department of Corrections Director Charles Ryan
and the state's Interim Director of Health Services Richard Pratt
provide prisoners with health care that "is grossly inadequate and
subjects all prisoners to a substantial risk of serious harm,
including unnecessary pain and suffering, preventable injury,
amputation, disfigurement, and death."
The complaint continues: "For years, the health care provided by
defendants in Arizona's prisons has fallen short of minimum
constitutional requirements and failed to meet prisoners' basic
health needs. Critically ill prisoners have begged prison
officials for treatment, only to be told 'be patient,' 'it's all
in your head,' or 'pray' to be cured. Despite warnings from their
own employees, prisoners and their family members, and advocates
about the risk of serious injury and death to prisoners,
defendants are deliberately indifferent to the substantial risk of
pain and suffering to prisoners, including deaths, which occur due
to defendants' failure to provide minimally adequate health care,
in violation of the Eighth Amendment."
Plaintiffs, including the Arizona Center for Disability Law, say
prison staff members are not properly trained to handle medical
emergencies, "and as a result of this failure to respond properly
and timely to emergencies, prisoners suffer avoidable harm and
injuries, including unnecessary deaths."
The complaint states: "In July 2010, correctional officers at the
Tucson prison stood by and watched a severely mentally ill
prisoner named Tony Lester bleed to death after his second suicide
attempt. Mr. Lester, who had paranoid schizophrenia, multiple
personality disorder, and auditory hallucinations, had been taken
off suicide watch, taken off his medications, and housed in the
general population, where he was given a hygiene kit that included
a razor. He used the razor blade to slit his throat, groin, and
wrists, and he wrote the word 'VOICES' in his blood on an
envelope. An ADC internal investigation found that the four
responding officers stood by and did not administer any basic
first aid. One officer told investigators he didn't want to be
'wallowing through' Mr. Lester's blood, and another said his
limited training did not teach him how to stop bleeding. When an
internal investigator asked one officer, 'So you guys just stood
around for 23 minutes and watched this guy bleed to death?', the
officer stated that his response was to call Mr. Lester's name and
to try to elicit a reaction."
The class, which consists of Arizona prisoners, claims that
Messrs. Ryan and Pratt have "ignored repeated warnings of the
inadequacies of the health care system and of the dangerous
conditions in their isolation units that they received from inmate
grievances, reports from outside groups, and complaints from
prison personnel, including their own staff."
The lawsuit cites a series of e-mails sent by the deputy medical
director for psychiatry at the Eyman prison to Mr. Ryan and former
health services director Michael Adu-Tutu, which stated that
prisoners "are not receiving a reasonable level of psychiatric
care. We are out of compliance with our own policies regarding
minimum frequency of contact with a provider, as well as community
standards for adequate care. The lack of treatment represents an
escalating danger to the community, the staff and the inmates."
According to the class: "Defendants have a policy and practice of
failing to provide timely access to health care and are
deliberately indifferent to the risk of harm and injury to
prisoners that results from this systemic failure. To request
health care, prisoners must submit a HNR form, describing the need
for medical, dental, or mental health attention, regardless of
whether they have informed medical staff about their symptoms.
Prisoners face numerous barriers in submitting this required form:
oftentimes, there are no HNR forms in living units; staff give
prisoners photocopies of HNR forms that are later rejected for not
being originals; correctional officers refuse to provide forms to
prisoners or discourage them from filing them; and officers read
completed HNRs and tell prisoners they are not sick, and refuse to
accept or forward the HNR to health care personnel."
Even if the HNR is completed and sent to medical staff, prisoners
may face weeks of delay before receiving medical care, or may be
placed on a waiting list, the complaint states. The situation is
worsened because there "are no standardized protocols or
timeframes dictating deadlines by which a prisoner requesting care
must receive a face-to-face appointment with a nurse, doctor, or
other clinician," the class claims.
The class seeks declaratory judgment that the defendants violate
prisoners' constitutional rights, and an order requiring
defendants to "develop and implement, as soon as practical, a plan
to eliminate the substantial risk of serious harm that prisoner
plaintiffs and members of the plaintiff class suffer due to
defendants' inadequate medical, mental health, and dental care,
and due to defendants' isolation policies."
A copy of the Complaint in Gamez, et al. v. Ryan, et al., Case No.
10-cv-02070 (D. Ariz.), is available t:
http://www.courthousenews.com/2012/03/08/AZPrisons.pdf
The Plaintiffs are represented by:
Daniel J. Pochoda, Esq.
James Duff Lyall, Esq.
ACLU FOUNDATION OF ARIZONA
3707 N. 7th Street, Suite 235
Phoenix, AZ 85014
Telephone: (602) 650-1854
E-mail: dpochoda@acluaz.org
jlyall@acluaz.org
- and -
Jennifer Alewelt, Esq.
Ruth Szanto, Esq.
ARIZONA CENTER FOR DISABILITY LAW
5025 East Washington St. Suite 202
Phoenix, AZ 85034
Telephone (602) 274-6287
E-mail: jalewelt@azdisabilitylaw.org
rszanto@azdisabilitylaw.org
- and -
Donald Specter, Esq.
Alison Hardy, Esq.
Sara Norman, Esq.
Corene Kendrick, Esq.
PRISON LAW OFFICE
1917 Fifth Street
Berkeley, CA 94710
Telephone: (510) 280-2621
E-mail: dspecter@prisonlaw.com
ahardy@prisonlaw.com
snorman@prisonlaw.com
ckendrick@prisonlaw.com
- and -
David C. Fathi, Esq.
Amy Fettig, Esq.
ACLU NATIONAL PRISON PROJECT
915 15th St. N.W., 7th Floor
Washington, D.C. 20005
Telephone: (202) 548-6603
E-mail: dfathi@npp-aclu.org
afettig@npp-aclu.org
- and -
Daniel C. Barr, Esq.
Jill L. Ripke, Esq.
James A. Ahlers, Esq.
Kirstin T. Eidenbach, Esq.
John H. Gray, Esq.
Thomas D. Ryerson, Esq.
Matthew B. Du Mee, Esq.
PERKINS COIE LLP
2901 N. Central Ave., Suite 2000
Phoenix, AZ 85012-2788
Telephone: (602) 351-8000
E-mail: dbarr@perkinscoie.com
jripke@perkinscoie.com
jahlers@perkinscoie.com
keidenbach@perkinscoie.com
jhgray@perkinscoie.com
tryerson@perkinscoie.com
mdumee@perkinscoie.com
- and -
Caroline Mitchell, Esq.
Douglas Roberts, Esq.
JONES DAY
555 California St., 26th Floor
San Francisco, CA 94104
Telephone: (415) 875-5712
E-mail: cnmitchell@jonesday.com
douglasroberts@jonesday.com
UMBRO USA: Recalls 240 Boys' Jackets Due to Entrapment Hazard
-------------------------------------------------------------
The U.S. Consumer Product Safety Commission, in cooperation with
manufacturer, Hong Kong Genexy Group Co. Ltd., of Hong Kong, and
distributor, Umbro USA, of Beaverton, Oregon, announced a
voluntary recall of about 240 Umbro Boys' outerwear jackets.
Consumers should stop using recalled products immediately unless
otherwise instructed. It is illegal to resell or attempt to
resell a recalled consumer product.
The boys' jacket has a retractable elastic drawstring at the waist
with a toggle that could become snagged or caught in small spaces
or doorways, which poses an entrapment hazard to children. In
February 1996, CPSC issued guidelines
[http://www.cpsc.gov/cpscpub/pubs/208.pdf]about drawstrings in
children's upper outerwear. In 1997, those guidelines were
incorporated into a voluntary standard. Then in July 2011, based
on the guidelines and voluntary standard, CPSC issued a federal
regulation. CPSC's actions demonstrate a commitment to help
prevent children from strangling or getting entangled on neck and
waist drawstrings in upper outerwear, such as jackets and
sweatshirts.
No incidents or injuries have been reported.
This recall involves boys' nylon jackets sold in sizes medium to
extra large that can fit children through size 14. "Umbro" is
printed on the front upper right side of the jackets. The bottom
of the jacket has a drawstring with toggles. The jackets were
sold in five color combinations: black, black/royal,
black/Tabasco, black/cedar, and navy. A picture of the recalled
products is available at:
http://www.cpsc.gov/cpscpub/prerel/prhtml12/12130.html
The recalled products were manufactured in China and sold at Ross
Stores nationwide from April 2011 through January 2012 for about
$8.
Consumers should immediately remove the drawstring and return the
jacket to Umbro for a full refund. For additional information,
contact Umbro toll-free at (866) 217-6800 between 7:00 a.m. and
4:00 p.m. Pacific Time Monday through Friday or visit the firm's
Web site at http://www.umbro.com/
WELLS FARGO: Faces Class Action Over Mortgage "Tax Service Fee"
---------------------------------------------------------------
Courthouse News Service reports that Wells Fargo Bank charges
mortgage borrowers a "tax service fee" though it does not provide
any tax services, a customer claims in a federal class action.
A copy of the Complaint in Gutierrez v. Wells Fargo Bank N.A.
d/b/a Wells Fargo Home Mortgage, et al., Case No. 12-cv-01135
(N.D. Calif.), is available at:
http://www.courthousenews.com/2012/03/08/WellsFargo.pdf
The Plaintiff is represented by:
Timothy G. Blood, Esq.
Leslie E. Hurst, Esq.
Paula M. Roach, Esq.
BLOOD HURST & O'REARDON, LLP
701 B Street, Suite 1700
San Diego, CA 92101
Telephone: (619) 338-1100
E-mail: tblood@bholaw.com
lhurst@bholaw.com
proach@bholaw.com
YONGYE INTERNATIONAL: N.Y. Class Action Voluntarily Dismissed
-------------------------------------------------------------
Yongye International, Inc., a developer, manufacturer, and
distributor of crop nutrient products in the People's Republic of
China, on March 8 disclosed that the previously announced class
action lawsuit filed against the Company by Robbins Geller Rudman
& Dowd LLP in the United States District Court Southern District
of New York in May 2011 was voluntarily dismissed by the lead
plaintiffs, with prejudice to themselves as named plaintiffs, on
March 5, 2012.
Yongye did not incur any material legal fees, charges or costs
related to this class action lawsuit or its voluntary dismissal.
Mr. Zishen Wu, Chairman and Chief Executive Officer of Yongye
stated, "We are pleased to announce the dismissal of this lawsuit.
We are dedicated to transparency and best practices regarding all
matters of corporate governance and financial reporting. Moving
forward, we will continue to focus on the development of our
business and delivering positive results for our shareholders."
*********
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.
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