/raid1/www/Hosts/bankrupt/CAR_Public/120319.mbx
C L A S S A C T I O N R E P O R T E R
Monday, March 19, 2012, Vol. 14, No. 55
Headlines
AB ELECTROLUX: More Than 1,000 Workers Join Class Action
ABERCROMBIE & FITCH: Judge Certifies Gift Card Class Action
APPLE: Faces Class Action Over False Advertising on Siri
BMW: Hovanes Files Objection to Class Action Settlement
BP: Fishery Service Oil Spill Data Will Be Kept Confidential
CAREER EDUCATION: Faces Securities Class Suit in Illinois
CAREER EDUCATION: Awaits Court Approval of "Amador" Settlement
CAREER EDUCATION: Awaits Ruling in "Lilley" Class Suit Appeal
CAREER EDUCATION: Bid to Decertify Class in "Surrett" Suit Pending
CAREER EDUCATION: Awaits Ruling in "Vasquez" Class Cert. Request
CAREER EDUCATION: Settlement Negotiations in "Fahey" Suit Ongoing
CAREER EDUCATION: Employment Suits Settlement Approved in December
CITIBANK NA: Failed to Timely Reconvey Deed of Trust, Suit Claims
CITY OF COLLINSVILLE, WI: Sued Over Vehicle Impound Fee System
DISCOVER BANK: Sued Over Bogus Credit-Card Agreements
EL PASO CORPORATION: Continues to Defend Shareholder Class Actions
FLORIDA COASTAL SCHOOL: Seeks Dismissal of Class Action
IMPERIAL TOBACCO: Says Not Liable in Smokers' Class Action
JAMBA JUICE: Sued Over Misleading "All Natural" Smoothie Ads
KINROSS GOLD: Faces Shareholder Class Action Over Tasiast Mine
LKQ CORPORATION: Inks Deal to Settle Aftermarket Suppliers Suit
MERCK & CO: To Pay $5.1 Mil. in Vytorin Shareholder Class Suit
MERCK & CO: Rottenstein Balks at Fosamax Class Action Ruling
MIDAMERICAN ENERGY: Awaits 9th Circuit Ruling in "Kivalina" Case
MOODY'S CORPORATION: Consolidated Securities Suit Remains Pending
N.C. BAPTIST HOSPITAL: Wants Employees to Pay Settlement Taxes
PRICELINE.COM INCORPORATED: Hotel Occupancy Suits Remain Pending
PRICELINE.COM INCORPORATED: Appeal in "Christe" Suit Dismissed
RADIANT TECH: Plumb-PEX Settlement Notification Program Begins
ROVI CORP: Gets Approval to Settle Sonic Acquisition Litigation
STATE OF TENNESSEE: Congressman Files Voting Roll Class Action
STUBHUB INC: Accused of Selling Invalid Tickets in California
SYMANTEC CORP: Norton Antivirus Program Class Action to Proceed
UNITED PARCEL: Awaits Final Approval of Barber Auto Suit Deal
UNITED PARCEL: Continues to Defend Class Suits in Canada
UNITED PARCEL: Continues to Defend Price-Fixing Class Suit
WACHOVIA CORPORATION: June 1 Settlement Fairness Hearing Set
WISCONSIN POWER: Parent Continues to Defend Pension-Related Suit
*********
AB ELECTROLUX: More Than 1,000 Workers Join Class Action
--------------------------------------------------------
The Associated Press reports that up to 1,500 former employees of
a now-shuttered washer and dryer plant in Webster City are
expected to join a class-action lawsuit seeking back pay for time
spent putting on protective equipment before their shifts.
U.S. District Judge Mark Bennett on March 9 ordered appliance-
maker AB Electrolux to produce names and addresses of hourly
production workers at the plant between December 2008 and December
2011 so they can be notified of their ability to join the case.
Lawyers say that about 1,000 of them have already expressed an
interest.
Workers say the company required employees to arrive 15 minutes
before their shifts to put on equipment such as armguards and
gloves without pay. The company is fighting the case.
The plant closed last March after its work was moved to Mexico.
ABERCROMBIE & FITCH: Judge Certifies Gift Card Class Action
-----------------------------------------------------------
Jack Bouboushian at Courthouse News Service reports that a federal
judge certified a nationwide class action that claims Abercrombie
& Fitch stopped honoring promotional gift cards that were never
supposed to expire.
Abercrombie ran a promotion in December 2009 offering a $25 gift
card to customers who bought at least $100 worth of merchandise in
a single transaction. The gift cards stated: "This gift card is
redeemable at all Abercrombie & Fitch locations. . . . No
expiration date."
Dorothy Stojka received three promotional gift cards worth a total
of $75 and gave them to Tiffany Boundas, who attempted to redeem
them in April 2010 at Abercrombie store in Oak Brook, Ill.
But the store demurred, explaining that Abercrombie had voided the
cards on Jan. 30, 2010. According to Abercrombie, each card was
enclosed in a sleeve that said, "$25 gift card expires 1/30/10."
Ms. Stojka and Ms. Boundas filed a class action against
Abercrombie in the Northern District of Illinois, alleging that it
committed breach of contract when it voided the gift cards.
U.S. District Judge Gary Feinerman certified the class last week
and appointed Ms. Boundas as the class representative.
"I contracts were formed, they were identical, with the only open
question being whether the cards expired on January 30, 2010, in
which case Abercrombie did not breach, or never expired, in which
case it did," Judge Feinerman said.
"Abercrombie's reference to individuals who 'knew the Promotion
Cards expired on January 30' does not advance its cause," he
added. "Because the question whether the cards expired has yet to
be decided, no cardholder could know that the cards expired in
January 2010. The category of individuals Abercrombie means to
describe are those who believed the cards expired on January 30,
2010. Even if that category includes more than a handful of
persons-and there is no evidence of record that anybody held that
belief-their inclusion in the class does not pose an individual
issue, let alone one that predominates over the common issues."
Judge Feinerman also said Abercrombie exaggerated the difficulty
of ascertaining who actually received the promotional gift cards.
Although class members' actual identities are not presently known,
"it is enough that the class be ascertainable."
"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," Judge Feinerman said. "That criterion
is as objective as they come. The class also includes individuals
who threw away their cards because they were told that the
balances had been voided. That criterion is not as objective as
actually holding a physical card, but anybody claiming class
membership on that basis will be required to submit an appropriate
affidavit."
Abercrombie could also give notice at its 300 nationwide locations
or on its Web site, the decision states.
A copy of the Memorandum Opinion and Order in Boundas, et al. v.
Abercrombie & Fitch Stores, Inc., Case No. 10-cv-04866 (N.D.
Ill.), is available at:
http://www.courthousenews.com/2012/03/14/abercrombie.pdf
APPLE: Faces Class Action Over False Advertising on Siri
--------------------------------------------------------
Damon Poeter, writing for PC Magazine, reports that a New York man
is suing the iPhone-maker for what he alleges are intentionally
misleading Apple ads promoting Siri's capabilities.
Frank Fazio filed a class-action suit on March 6 with the U.S.
District Court in San Jose, Calif., claiming that in its marketing
efforts, Apple is primarily differentiating the iPhone 4S from
earlier iPhone models with the addition of its new voice-activated
digital assistant. The problem, the suit alleges, is that Siri
doesn't come close to performing the functions as well or as
consistently as Apple advertises it doing.
The suit alleges:
"Through an extensive and comprehensive nationwide marketing
campaign, Defendant 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.
"For example, in many of Apple's television advertisements,
individuals are shown using Siri to make appointments, find
restaurants, and even learn the guitar chords to classic rock
songs or how to tie a tie. In the commercials, all of these tasks
are done with ease with the assistance of the iPhone 4S's Siri
feature, a represented functionality contrary to the actual
operating results and performance of Siri."
Mr. Fazio, who is represented by Robbins Geller, lists several
Apple ads and online marketing materials that he alleges his own
experience using Siri has shown him to contain false portrayals of
the technology's functionality.
"Promptly after the purchase of his iPhone 4S, Plaintiff realized
that Siri was not performing as advertised," the suit states.
"For instance, when Plaintiff asked Siri for directions to a
certain place, or to locate a store, Siri either did not
understand what Plaintiff was asking, or, after a very long wait
time, responded with the wrong answer."
Mr. Fazio alleges that Apple's ads promoting Siri on the iPhone 4S
are "fundamentally and designedly false and misleading," thus
"rendering the iPhone 4S merely a more expensive iPhone 4."
The suit further claims that "continuous Siri usage dramatically
increases an iPhone 4S users' monthly data usage, and can easily
push users over their monthly data plans," while dismissing
Apple's notification that Siri is in "beta" as being "buried in
Apple's Web site."
Mr. Fazio claims Apple's advertising violates California's
Consumers Legal Remedies Act and the state's Unfair Competition
Law.
Apple had not responded to a request for comment on March 12.
BMW: Hovanes Files Objection to Class Action Settlement
-------------------------------------------------------
The Los Angeles, CA based Law Offices of Hovanes Margarian has
filed a 149 page objection to the class action settlement terms in
Nguyen v. BMW of North America, LLC. The class action is based on
allegations that an estimated 200,000 BMW vehicles equipped with
twin turbo engines have a faulty high pressure fuel pump which
renders the vehicles unsafe. After nearly two years of litigation
the parties have reached a settlement agreement wherein each
affected class member will receive a free replacement of the high
pressure fuel pump pursuant to an ongoing recall, plus payments
ranging from $50 to $400 or an $800 BMW voucher. In his
Objection, Mr. Margarian argues that these terms are inadequate as
they undercut class members' rights pursuant to Federal and State
Lemon Laws which entitled consumers to significant, if not full,
refunds of all their payments when a vehicle is deemed to be
defective. Furthermore, the settlement agreement not only
circumvents these laws but also asks class members to waive their
legal rights without being properly advised. According to
Mr. Margarian, the settlement class should be re-evaluated and
divided into sub-categories consisting of class members who
qualify for statutory Lemon Law repurchases, class members who
qualify for significantly larger diminution of value damage
awards, and class members who qualify for recoveries within a
smaller range of sums. In total, Mr. Margarian requests that the
total class recovery be increased from an estimated $42 million
dollar sum pursuant to the average expected payout based on the
settlement agreement to a whopping $1 billion and $140 million
dollar sum. Furthermore, Mr. Margarian requests to be certified
as class co-counsel in these proceedings to contribute his
expertise in determining a more fair and appropriate resolution
for the class members. The Objection to the proposed class
settlement in Nguyen v. BMW of North America, LLC, Case No. 3:10-
cv-02257-SI, is scheduled for oral arguments in the U.S. District
Court for the Northern District of California before the Honorable
Susan Illston on March 16, 2012 in San Francisco, CA.
Hovanes Margarian, Esq. has been counsel on over one thousand
consumer fraud and automobile warranty breach cases and litigated
cases against a wide range of corporate giants. His clients
consist primarily of consumers whose rights have been violated
through unlawful business practices.
Contact: Hovanes Margarian, Esq.
The Law Offices of Hovanes Margarian
The Consumer Protection Advocates
13425 Ventura Blvd., Suite 303
Sherman Oaks, CA 91423
Telephone: (818) 990-0418
E-mail: info@margarianlaw.com
Web site: http://www.MargarianLaw.com
BP: Fishery Service Oil Spill Data Will Be Kept Confidential
------------------------------------------------------------
Sabrina Canfield at Courthouse News Service reports that All
National Marine Fisheries Service documents produced for the
Deepwater Horizon oil spill litigation are to be kept confidential
and will not be used for data, a federal magistrate judge ruled on
March 13.
U.S. Magistrate Judge Sally Shushan's order states that "the PSC
[plaintiff steering committee], BP and the United States agree
that any documents produced by the National Marine Fisheries
Service ('NMFS'), pursuant to the joint request of BP and the PSC,
shall be treated as 'confidential.' The parties further agree
that BP and the PSC seek only the data requested on March 12, 2012
and the documents need not be processed to be marked
'confidential' nor are the parties interested in production of
metadata."
Judge Shushan's order refers to U.S. District Judge Carl Barbier's
Nov. 2, 2010 order to protect confidentiality in this litigation.
Judge Barbier and Magistrate Judge Shushan are overseeing the
consolidated litigation.
Attorneys could not immediately be reached for comment March 13.
A copy of the Order in In re: Oil Spill by the Oil Rig "Deepwater
Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179
(E.D. La.), is available at:
http://www.courthousenews.com/2012/03/14/FisheryConf.pdf
CAREER EDUCATION: Faces Securities Class Suit in Illinois
---------------------------------------------------------
Career Education Corporation is facing a securities class action
lawsuit in an Illinois federal court, according to the Company's
February 27, 2012 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On January 13, 2012, a class action complaint was filed in the
United States District Court for the Northern District of Illinois
naming as defendants Career Education Corporation, its Board of
Directors, Michael Graham, Gary McCullough, Colleen O'Sullivan,
and Edward Snyder. Plaintiff claims that the defendants violated
Section 10(b) of the Securities Exchange Act of 1934 (the
"Exchange Act") by making material misstatements in and omitting
material information from the Company's public disclosures
concerning its schools' job placement rates and its compliance
with accreditation policies. Plaintiff further claims that the
individual defendants violated Section 20(a) of the Exchange Act
by virtue of their positions as control persons of the Company.
Plaintiff asks for unspecified amounts in damages, interest, and
costs, as well as ancillary relief. Plaintiff seeks damages on
behalf of all persons who purchased the Company's common stock
between January 1, 2009, and November 1, 2011. Defendants
currently have until March 30, 2012, to answer or move to dismiss
the complaint.
Because of the many questions of fact and law that have already
arisen and that may arise in the future, the outcome of this legal
proceeding is uncertain at this point, the Company said. Based on
information available to the Company at present, it said it cannot
reasonably estimate a range of potential loss, if any, for this
action because of the inherent difficulty in assessing the
appropriate measure of damages and the number of potential class
members who might be entitled to recover damages, if the Company
was to be found liable. Accordingly, the Company has not
recognized any liability associated with this action.
CAREER EDUCATION: Awaits Court Approval of "Amador" Settlement
--------------------------------------------------------------
Career Education Corporation is awaiting final approval of a
settlement of lawsuits filed by current and former students of the
California Culinary Academy ("CCA"), according to the Company's
February 27, 2012 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On September 27, 2007, Allison Amador and 36 other current and
former students of the CCA filed a complaint in the California
Superior Court in San Francisco. Plaintiffs plead their original
complaint as a putative class action and allege four causes of
action: fraud; constructive fraud; violation of the California
Unfair Competition Law; and violation of the California Consumer
Legal Remedies Act. Plaintiffs contend that CCA made a variety of
misrepresentations to them, primarily oral, during the admissions
process. The alleged misrepresentations relate generally to the
school's reputation, the value of the education, the
competitiveness of the admissions process, and the students'
employment prospects upon graduation, including the accuracy of
statistics published by CCA.
On April 3, 2008, the same counsel representing plaintiffs in the
Amador action filed the Adams action on behalf of Jennifer Adams
and several other unnamed members of the Amador putative class.
The Adams action also is styled as a class action and is based on
the same allegations underlying the Amador action and attempts to
plead the same four causes of action pled in the Amador action.
The Adams action has been deemed related to the Amador action and
is being handled by the same judge. The Adams action has been
stayed.
In October 2010, the parties reached agreement on all the material
terms of a settlement and executed a formal settlement agreement
as of November 1, 2010. The settlement is subject to court
approval. The monetary component of the settlement involves
payment by the Company of approximately $40.8 million to pay
claims by all students who enrolled in CCA and/or graduated from
CCA from September 28, 2003 through October 8, 2008. The payment
includes plaintiffs' attorneys' fees and certain expenses to be
incurred in connection with the implementation of the settlement.
During 2010, the Company recorded a charge of $40.8 million which
represents its best estimate of the loss related to this matter.
The settlement has been preliminarily approved by the Court and
the parties are in the process of implementing the settlement
terms. The Company disbursed $40.0 million during the first
quarter of 2011, as required by the terms of the agreement.
The deadline for filing claims and/or opting out of the settlement
was June 6, 2011. Approximately 242 students opted out of the
settlement and of those, about 167 were class members.
On July 25, 2011, the Company filed a motion seeking an order
disallowing the requests submitted on behalf of 46 of the students
purporting to opt out of the settlement in order to preserve their
right to pursue individual claims. This motion alleges that these
opt outs were untimely or otherwise improperly submitted. On
July 25, 2011, the Company filed a second motion relating to the
opt-out process. This motion was filed based on concerns about
plaintiffs' counsel's apparent role in either soliciting,
encouraging or advising class members to opt out of the
settlement, and in filing a lawsuit on their behalf while the
settlement approval process is pending. This motion seeks a
variety of relief, including the right to rescind the settlement,
opposing plaintiffs' counsel's adequacy and fees, and other
equitable relief to attempt to remedy the effect of these
activities. The Court has not ruled on the motion for final
approval of the settlement but did enter an order disallowing the
42 improper opt outs. The Court tentatively ruled on plaintiffs'
counsel's attorneys' fees but reserved ruling on the Company's
motion to disallow a portion of those fees. The Court also
required plaintiffs' counsel to provide a supplemental notice to
the remaining opt outs (at their expense), giving those opt outs
the opportunity to participate in the settlement. The deadline to
respond to the supplemental notice is March 12, 2012, and the
continued hearing on final approval of the settlement is April 13,
2012. If the settlement is not approved or is rescinded on
April 13, 2012, then the class action litigation may be
reinstated.
CAREER EDUCATION: Awaits Ruling in "Lilley" Class Suit Appeal
-------------------------------------------------------------
Career Education Corporation is awaiting a ruling on the appeal
from an order certifying a class in the Lilley class action
lawsuit, according to the Company's February 27, 2012 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
On February 11, 2008, a class action complaint was filed in the
Circuit Court of Madison County, Illinois, naming as defendants
Career Education Corporation and Sanford-Brown College, Inc.
Plaintiffs filed amended complaints on September 5, 2008 and
September 24, 2010. The five plaintiffs named in the amended
complaint are former students who attended a medical assistant
program at Sanford-Brown College located in Collinsville,
Illinois. The class is alleged to be all persons who enrolled in
that program since July 1, 2003. The amended class action
complaint asserts claims for alleged violations of the Illinois
Private Business and Vocational Schools Act, for alleged unfair
conduct and deceptive conduct under the Illinois Consumer Fraud
and Deceptive Business Practices Act, as well as common law claims
of fraudulent misrepresentation and fraudulent omission.
In the amended complaint filed on September 24, 2010, the
plaintiffs allege that the school's enrollment agreements
contained false and misleading information regarding placement
statistics, job opportunities and salaries and that Admissions,
Financial Aid and Career Services personnel used standardized
materials that allegedly contained false and/or deceptive
information. Plaintiffs also allege that the school misused a
standardized admissions test to determine program placement when
the test was not intended for that purpose; failed to provide
allegedly statutorily required loan repayment information; and
misrepresented the transferability of credits. Plaintiffs seek
compensatory, treble and punitive damages, disgorgement and
restitution of all tuition monies received from medical assistant
students, attorneys' fees, costs and injunctive relief.
Defendants filed a motion to dismiss the amended complaint on
October 20, 2010. On October 27, 2010 the Court granted
defendants' motion with respect to plaintiffs' fraudulent omission
claims. The Court denied the motion with respect to the statutory
claims under the Private Schools Act and the Illinois Consumer
Fraud Act and the common law fraudulent misrepresentation claim.
By Order dated December 3, 2010, the Court certified a class
consisting of all persons who attended SBC in Collinsville,
Illinois and enrolled in the Medical Assisting Program during the
period from July 1, 2003 through November 29, 2010. This class
consists of approximately 2,300 members. Defendants filed a
petition for leave to appeal the trial court's class certification
order to the Fifth District Court of Appeals. On February 10,
2011, the Fifth District Court of Appeals granted defendants'
petition for leave to appeal. Oral argument was heard on the
appeal on October 4, 2011. While that appeal is pending, all
proceedings in the Circuit Court are stayed.
Because of the many questions of fact and law that have already
arisen and that may arise in the future, the outcome of this legal
proceeding is uncertain at this point. Based on information
available to the Company at present, it said it cannot reasonably
estimate a range of potential loss, if any, for this action
because of the inherent difficulty in assessing the appropriate
measure of damages and the number of potential class members who
might be entitled to recover damages, if the Company was to be
found liable. Accordingly, the Company has not recognized any
liability associated with this action.
CAREER EDUCATION: Bid to Decertify Class in "Surrett" Suit Pending
------------------------------------------------------------------
A motion to decertify the class in the lawsuit captioned Surrett,
et al. v. Western Culinary Institute, Ltd. and Career Education
Corporation, is pending, according to the Company's February 27,
2012 Form 10-K filing with the U.S. Securities and Exchange
Commission for the year ended December 31, 2011.
On March 5, 2008, original named plaintiffs Shannon Gozzi and
Megan Koehnen filed a complaint in Portland, Oregon in the Circuit
Court of the State of Oregon in and for Multnomah County.
Plaintiffs filed the complaint individually and as a putative
class action and alleged two claims for equitable relief:
violation of Oregon's Unlawful Trade Practices Act ("UTPA") and
unjust enrichment. Plaintiffs filed an amended complaint on
April 10, 2008, which added two claims for money damages: fraud
and breach of contract. Plaintiffs allege that Western Culinary
Institute, Ltd. ("WCI") made a variety of misrepresentations to
them, relating generally to WCI's placement statistics, students'
employment prospects upon graduation from WCI, the value and
quality of an education at WCI, and the amount of tuition students
could expect to pay as compared to salaries they may earn after
graduation. WCI subsequently moved to dismiss certain of
plaintiffs' claims under Oregon's UTPA; that motion was granted on
September 12, 2008. On February 5, 2010, the Court entered a
formal Order granting class certification on part of plaintiff's
UTPA and fraud claims purportedly based on omissions, denying
certification of the rest of those claims and denying
certification of the breach of contract and unjust enrichment
claims. The class consists of students who enrolled at WCI
between March 5, 2006 and March 1, 2010, excluding those who
dropped out or were dismissed from the school for academic
reasons.
Because Ms. Schuster was not a member of the certified class (she
enrolled before March 5, 2006), plaintiff's counsel recently
substituted in a new class representative for her named Nathan
Surrett pursuant to a stipulation among the parties which
provided, among other things, that WCI retains the right to
challenge whether the new class representative is adequate (with
plaintiff retaining the burden of proof on that issue).
Plaintiffs filed a Fifth Amended Complaint on December 7, 2010,
which included individual and class allegations. Class notice was
sent out on April 22, 2011, and the opt-out period expired on
June 20, 2011. The class consists of approximately 2,330 members.
The class is seeking tuition refunds, interest and certain fees
paid in connection with their enrollment at WCI.
The parties are currently engaged in merits discovery. WCI and
CEC filed a motion for summary judgment and a motion to decertify
the class. No trial date has been set.
Because of the many questions of fact and law that have already
arisen, and that may arise in the future, the outcome of this
legal proceeding is uncertain at this point. Based on information
available to the Company at present, it said it cannot reasonably
estimate a range of potential loss, if any, for this action
because of the inherent difficulty in assessing the appropriate
measure of damages and the number of class members who might be
entitled to recover damages, if the Company is to be found liable.
Accordingly, the Company has not recognized any liability
associated with this action.
CAREER EDUCATION: Awaits Ruling in "Vasquez" Class Cert. Request
----------------------------------------------------------------
Career Education Corporation is awaiting a court ruling on a class
certification motion in the putative class action lawsuit titled
Vasquez, et al. v. California School of Culinary Arts, Inc. and
Career Education Corporation, according to the Company's
February 27, 2012 Form 10-K filing with the U.S. Securities and
Exchange Commission for the year ended December 31, 2011.
On June 23, 2008, a putative class action lawsuit was filed in the
Los Angeles County Superior Court entitled Daniel Vasquez and
Cherish Herndon v. California School of Culinary Arts, Inc. and
Career Education Corporation. The plaintiffs allege causes of
action for fraud, constructive fraud, violation of the California
Unfair Competition Law and violation of the California Consumer
Legal Remedies Act. The plaintiffs allege improper conduct in
connection with the admissions process during the alleged class
period. The alleged class is defined as including "all persons
who purchased educational services from California School of
Culinary Arts, Inc. ("CSCA"), or graduated from CSCA, within the
limitations periods applicable to the herein alleged causes of
action (including, without limitation, the period following the
filing of the action)." Defendants successfully demurred to the
constructive fraud claim and the Court has dismissed it.
Defendants also successfully demurred to plaintiffs' claims based
on alleged violations of California's former Educational Reform
Act.
The plaintiffs have filed a fourth amended complaint, in which
they assert the same claims against the Company, but have added
claims against approximately 15 student lenders. The plaintiffs
subsequently dismissed all of the student lenders.
The parties are engaged in class discovery. Plaintiffs filed a
motion for class certification, and the Company filed an
opposition on September 16, 2011. After limited additional
discovery allowed by the Court, plaintiffs filed their reply and
the Court conducted a hearing on January 31, 2012. The parties
are awaiting a ruling on the class certification motion.
Plaintiffs' counsel have filed six separate but related "mass
actions" entitled Banks, et al. v. California School of Culinary
Arts, Los Angeles County Superior Court (by 316 individuals);
Abrica v. California School of Culinary Arts, Los Angeles County
Superior Court (by 373 individuals), Aguilar, et al. v. California
School of Culinary Arts, Los Angeles County Superior Court (by 88
individuals), Alday v. California School of Culinary Arts, Los
Angeles Superior Court (by 73 individuals), Ackerman, et al. v.
California School of Culinary Arts, Los Angeles County Superior
Court (by 27 individuals), and Arechiga, et al. v. California
School of Culinary Arts, Los Angeles County Superior Court (by 60
individuals). All six cases are being prosecuted on behalf of
hundreds of individual former students. The allegations are the
same as those asserted in the Vasquez class action case. The
individual plaintiffs in these cases seek compensatory and
punitive damages, disgorgement and restitution of tuition monies
received, attorneys' fees, costs and injunctive relief. All of
these cases have been or are expected to be deemed related. Once
deemed related, they will be transferred to the Judge handling the
Vasquez class action. Each case has been stayed or will be stayed
upon transfer pending a ruling on class certification in the
Vasquez case.
Because of the many questions of fact and law that have already
arisen and that may arise in the future, the outcome of these
legal proceedings is uncertain at this point. Based on
information available to the Company at present, it said it cannot
reasonably estimate a range of potential loss, if any, for these
actions because the Company's possible liability depends on an
assessment of the appropriate measure of damages, if the Company
is to be found liable and whether, in the case of the Vasquez
action, a class is certified and, if so, the size of any such
class. Accordingly, the Company has not recognized any liability
associated with these actions.
CAREER EDUCATION: Settlement Negotiations in "Fahey" Suit Ongoing
-----------------------------------------------------------------
Negotiations on a settlement in the putative class action lawsuits
entitled Fahey, et al. v. Career Education Corporation and Rojas,
et al. v. Career Education Corporation are ongoing, according to
Career Education Corporation's February 27, 2012 Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2011.
On August 4, 2010, a putative class action lawsuit was filed in
the Circuit Court of Cook County, Illinois, by Sheila Fahey
alleging that she had received an unauthorized text message
advertisement in violation of the Telephone Consumer Protection
Act (the "TCPA"). On September 3, 2010, the Company removed this
case to the U.S. District Court for the Northern District of
Illinois. On November 22, 2010, the Company filed a motion to
dismiss the Fahey case. That motion is still pending. The Court
has stayed any further activity on the Fahey case until resolution
of an appeal in the Seventh Circuit of a case involving issues
similar to those raised in the Company's motion to dismiss. The
appeal has been resolved and the Company anticipates that the
Court will lift the stay of proceedings in Fahey shortly and
consolidate this case with the Rojas matter.
On August 18, 2010, the same counsel representing plaintiffs in
the Fahey action filed a similar lawsuit in the U.S. District
Court for the Northern District of Illinois on behalf of Sergio
Rojas alleging similar violations of the TCPA. Rojas, like Fahey,
seeks class certification of his claims. The alleged classes are
defined to include persons who received unauthorized text message
advertisements from the Company. Rojas and Fahey each seek an
award trebling the statutory damages to the class members,
together with costs and reasonable attorneys' fees.
On September 7, 2011, the Rojas Court issued an order staying
further proceedings while the parties entered into settlement
negotiations on these cases. The parties in the Rojas and Fahey
cases have made progress toward reaching a settlement, but certain
issues remain unresolved. Most recently the parties met for a
full day of mediation on January 20, 2012, to work out the terms
of a final settlement agreement. Those discussions are
continuing. The Court has continued the stay of discovery and all
other proceedings pending the resolution of these mediated
settlement discussions. Based on the information available to the
Company, it has recorded a charge of $6.0 million in the fourth
quarter of 2011 which represents its best estimate of the loss
related to this matter.
CAREER EDUCATION: Employment Suits Settlement Approved in December
------------------------------------------------------------------
Career Education Corporation received in December court approval
of a settlement in a consolidated action complaint and a putative
class action lawsuit alleging failure to pay working hours,
according to the Company's February 27, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On or about December 20, 2010, Edward J. Kelly, Jon Pizzica, and
Christopher Steinbrunn filed a collective action complaint in the
United States District Court for the Western District of
Pennsylvania against Career Education Corporation alleging that
the Company has violated the Fair Labor Standards Act by failing
to pay plaintiffs for all of the hours that they worked, including
overtime hours (the "Kelly lawsuit"). Plaintiffs formerly worked
as Admissions Representatives at Le Cordon Bleu Institute of
Culinary Arts, Inc. in Pittsburgh, Pennsylvania ("LCB-
Pittsburgh"). The Kelly lawsuit is brought on behalf of all
current and former Admissions Representatives at all of the
Company's culinary arts strategic business units for the period
commencing three years prior to the filing of the collective
action complaint to the present. In their complaint, plaintiffs
in the Kelly lawsuit seek unspecified back overtime pay,
attorneys' fees and costs, and liquidated and/or compensatory
damages. In addition to the three named plaintiffs, 11 other
former Admissions Representatives who worked at LCB-Pittsburgh
joined the litigation.
On April 19, 2011, the Company, without admitting any liability,
reached an agreement in principle to settle both the Kelly lawsuit
and a related Pennsylvania state court class action lawsuit. The
settlement covers only the 60 individuals who worked in
Pennsylvania as Admissions Representatives at LCB-Pittsburgh
during the three-year statute of limitations period. In
connection with the settlement, the plaintiffs filed an amended
complaint on August 1, 2011, which effectively consolidated the
collective action complaint with the related state court class
action complaint. On August 16, 2011, the parties filed a motion
for preliminary approval of the class and collective action
settlement with the federal court. The Court preliminarily
approved the settlement on August 19, 2011. Pursuant to the
settlement, notice of the settlement was sent to the 60 class
members on or about September 9, 2011. A total of 42 class
members joined the settlement after receiving notice. No class
members opted-out of the settlement or objected to the settlement.
On December 19, 2011 the Court issued an order approving the
settlement, including the releases of wage and hour claims of
class members, and dismissing the Kelly lawsuit with prejudice.
Pursuant to the settlement agreement, the Company will make
payments of attorneys' fees and costs to plaintiffs' counsel and
payments of the settlement amounts to participating class members
in February 2012. The related state court lawsuit will be
dismissed with prejudice after those settlement payments are made.
The Company recorded a charge of $0.2 million in connection with
the settlement.
CITIBANK NA: Failed to Timely Reconvey Deed of Trust, Suit Claims
-----------------------------------------------------------------
Inna Kuzmenko, Individually and on behalf of all others similarly
situated and the California general public v. Citibank, N.A.;
Citibank (West) Federal Savings Bank; Citimortgage, Inc.; and
Citibank Service Corporation, Case No. 4:12-cv-01227 (N.D. Calif.,
March 12, 2012) is based upon the Defendants' alleged failure to
perform the duties mandated by Section 2941 of the Civil Code,
thus, impeding the transfer of real estate and causing damage to
the Plaintiff and all members of the class as well as to the
general public of the state of California.
Ms. Kuzmenko alleges that the Defendants failed to timely reconvey
to her the Deed of Trust of a real estate property even if she
already paid her loan at Citibank West. She contends that a
failure to reconvey and record the reconveyance, in a timely
manner, leaves the title with a cloud on it and carries serious
risk of damage to the borrower.
Ms. Kuzmenko borrowed money from Citibank West in December 2003,
and executed a Deed of Trust in favor of Citibank West against her
real property located at 2262 42nd Avenue, in San Francisco,
California, to secure repayment of her obligations. She asserts
that in March 2005, those obligations were satisfied.
Citibank Service, Citibank West and CitiMortgage are subsidiaries
of Citibank, N.A., which is a nationally-chartered bank.
The Plaintiff is represented by:
Bruce W. Leppla, Esq.
Katherine Lehe, 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: bleppla@lchb.com
klehe@lchb.com
- and -
David S. Stellings, Esq.
LIEFF CABRASER HEIMANN &BERNSTEIN, LLP
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Telephone: (212) 355-9500
Facsimile: (212) 355-9592
E-mail: dstellings@lchb.com
- and -
Robert Eisler, Esq.
GRANT & EISENHOFER, P.A.
123 Justison Street
Wilmington, DE 19801
Telephone: (302) 622-7000
Facsimile: (302) 622-7100
E-mail: reisler@gelaw.com
- and -
James Sabella, Esq.
GRANT & EISENHOFER P.A.
485 Lexington Avenue
New York, NY 10017
Telephone: (646) 722-8500
Facsimile: (646) 722-8501
E-mail: jsabella@gelaw.com
- and -
Steven J. Greenfogel, Esq.
Bruce D. Greenberg, Esq.
LITE DePALMA GREENBERG, LLC
Two Gateway Center, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
Facsimile: (973) 877-3872
E-mail: sgreenfogel@litedepalma.com
bgreenberg@litedepalma.com
- and -
Joel C. Meredith, Esq.
MEREDITH &ASSOCIATES
1521 Locust Street, 8th floor
Philadelphia, PA 19102-3708
Telephone: (215) 564-5182
Facsimile: (215) 569-0958
E-mail: JMeredith@mcgslaw.com
CITY OF COLLINSVILLE, WI: Sued Over Vehicle Impound Fee System
--------------------------------------------------------------
Ramona C. Sanders, writing for STLtoday, reports that the city of
Collinsville's policy to assess a higher fee to release impounded
vehicles used in connection with a serious crime is being
challenged in court. A class-action lawsuit has been filed in
Madison County against the city for the two-tier fee system.
A 2008 city ordinance imposes two different fees for
administrative costs associated with impounding a vehicle. People
that have been arrested by the Collinsville Police Department for
more serious crimes such as driving under the influence of
alcohol, speeding in excess of 40 mph, robbery or burglary are
required to pay a $500 administrative fee to have their cars
released from police custody. Those arrested for lesser crimes
pay a $150 administrative fee. If the person is found to be not
guilty of the crime by a judge, the fee is refundable.
"It's really an issue of fairness," said Collinsville Police Chief
Scott Williams, also the interim city manager. "If somebody does
something that is much less severe -- if you get arrested for a
traffic warrant for an unpaid traffic ticket -- and we tow your
car, I really do view that as different than if you're driving
impaired, under the influence of drugs and alcohol."
Mayor John Miller said that several other Metro East cities have
the same ordinance, which is based on a 1997 state law, and that
the law has been upheld in state appellate court.
"It's been tested in court, there is case file allowing this," Mr.
Miller said. "Several municipalities use it. This is not the
first time it has been tried to be shut down."
Hazelwood resident Amy Kopesky is the only plaintiff named in the
class action lawsuit that was filed in December. The complaint
states that Ms. Kopesky was required to pay a $500 fee following
her Dec. 2, 2010, arrest. It does not state what Ms. Kopesky was
arrested for. Ms. Kopesky could not be reached for comment and
her Edwardsville attorney Brian Polinske did not return telephone
calls.
The complaint states that the ordinance "has no rational basis"
for an administrative fee that is "not connected or related in
whole or part to the cost of towing, towing services or actual
services provided."
However, Mr. Miller said the higher fee is for the additional time
it takes a police officer to process arrests for more serious
crimes.
"The primary reason that policy was put into effect was so that
citizens' taxes aren't being used for inventorying automobiles and
the officer's time for those who are not living up to the laws and
the ordinances of the city," Mr. Miller said. "It takes an
officer off the street -- at that time the city is lacking that
officer."
City attorney Steven Giacoletto filed a motion to dismiss the
complaint last month; his arguments included that Mr. Kopesky
exceeded the one-year statute of limitation to file the complaint,
and similar ordinances have been upheld in other state courts.
DISCOVER BANK: Sued Over Bogus Credit-Card Agreements
-----------------------------------------------------
Reuben Kramer at Courthouse News Service reports that a federal
RICO class action claims Discover Bank told all its collection
attorneys nationwide to use bogus credit-card "agreements" that
"are all dated . . . [and] issued after the date of issuance of
the subject credit cards."
Lead plaintiff Diana Elinich says she got a Discover credit card
in 1999, but when the bank sued her for an alleged credit-card
default, it tried to use a "cardmember agreement" dated 2011,
claiming that that was her contract.
"The 2011 cardmember agreement is not an amendment or a
modification, but an original customer agreement," the complaint
states.
"It is clearly impossible for a contract dated after the date of
the credit card issuance to act as the governing agreement between
the parties."
But that didn't stop Discover from ordering "all of their
collection attorneys throughout the United States of America to
use the false contracts as the governing contracts for credit card
holder[s] who are the subject of collection efforts," according to
the complaint.
Ms. Elinich claims Discover conspired with its collectors to
attach false or "otherwise irrelevant documentation as exhibits"
to collection suits, to intimidate unsophisticated consumers who
assume that an alleged creditor is presenting them with proper
paperwork.
The "after-dated" agreements do not govern the credit cards at
issue, but were appended to the collection efforts because they
were "convenient," Ms. Elinich says.
She claims Discover is trying "to foist upon the victims the
imprimatur of substantiating documentary evidence" when, in fact,
the so-called credit-card agreements don't substantiate much at
all.
Ms. Elinich seeks class damages for RICO violations, violations of
the Fair Debt Collection Practices Act, deceptive trade, and state
consumer-protection law.
She sued Discover Bank, DB Servicing Corporation and Discover's
Cleveland-based collection firm, Weltman, Weinberg & Reis.
A copy of the Complaint in Elinich, et al. v. Discover Bank, et
al., Case No. 12-cv-01227 (E.D. Pa.), is available at:
http://www.courthousenews.com/2012/03/14/Discover.pdf
The Plaintiff is represented by:
Stuart A. Eisenberg, Esq.
Carol B. McCullough, Esq.
MCCULLOUGH EISENBERG, LLC
65 West Street Road, A-105
Warminster, PA 18974
Telephone: (215) 957-6411
EL PASO CORPORATION: Continues to Defend Shareholder Class Actions
------------------------------------------------------------------
El Paso Corporation continues to defend securities class actions
challenging Kinder Morgan, Inc.'s proposed acquisition of the
Company, according El Paso's February 27, 2012 Form 10-K filing
with the U.S. Securities and Exchange Commission for the year
ended December 31, 2011.
Beginning on October 17, 2011, 21 purported shareholder class
actions were filed challenging the proposed acquisition of El Paso
by KMI. The lawsuits were filed against both companies, an
advisor and the El Paso board of directors. The shareholder class
actions generally allege that the El Paso board breached its
fiduciary duties to the shareholders by approving the transaction
and that the two companies aided in the alleged breach. All of
the shareholder class actions seek to enjoin the transaction and a
hearing was held in Delaware Chancery Court in February 2012. The
Company anticipates that a decision regarding the injunction will
be made by the court by early March 2012. Eight of the actions
have been filed and consolidated in state district court in Harris
County, Texas, and 13 have been filed and consolidated in Delaware
Chancery Court. An additional purported class action lawsuit was
filed on behalf of unitholders of El Paso Pipeline Partners, L.P.,
in the Delaware Chancery Court in December 2011 against El Paso
and its board of directors. The lawsuit alleges that the merger
transaction with KMI adversely affected the unitholders of EPB and
that El Paso and its board of directors breached their fiduciary
duties. A motion to dismiss that suit has been filed. The
Company believes these purported shareholder class actions are
without merit and intends to defend against them vigorously.
FLORIDA COASTAL SCHOOL: Seeks Dismissal of Class Action
-------------------------------------------------------
Joe Wilhelm Jr., writing for Daily Record, reports that
Jacksonville-based Florida Coastal School of Law has filed a
motion to dismiss a class action suit that alleges the local law
school has manipulated and misrepresented its postgraduate
employment statistics.
The suit has been moved from state court and assigned to U.S.
District Judge Marcia Cooke in the U.S. District Court in the
Southern District of Florida Miami Division.
Florida Coastal asks that it be moved to the Middle District,
which includes the Jacksonville Division.
"Florida Coastal School of Law has removed to federal court from
state court the lawsuit claiming students were misled by the
school's postgraduation employment statistics we submit annually
for publication," said Peter Goplerud, Florida Coastal dean and
professor, in a statement.
"Most recently, Coastal Law has asked the federal court to dismiss
the lawsuit as meritless, and we have requested, in the
alternative, it be moved to the appropriate venue in the federal
Middle District of Florida," he said.
"As we have assured our students, faculty, staff and alumni from
day one, Florida Coastal School of Law is extremely confident and
stands behind the integrity of the postgraduate employment
information we submit annually for publication to the American Bar
Association and others. Our data is well-researched and
thoroughly vetted, and we will continue to vigorously defend
ourselves against these baseless allegations," said Mr. Goplerud.
The class action against Florida Coastal is one of 14 filed
against law schools across the country through the New York law
firms Strauss Law and The Law Offices of David Anziska.
They claim the suits will bring more transparency to the reporting
of employment statistics by the law schools.
The other law schools with suits against them include New York Law
School; Thomas M. Cooley Law School; Albany Law School; Brooklyn
Law School; Maurice A. Dean School of Law at Hofstra University;
Widener University School of Law; ITT Chicago-Kent College of Law;
DePaul University School of Law; John Marshall School of Law
(Chicago); California Western School of Law; Golden State
University School of Law; Southwestern Law School; and University
of San Francisco School of Law.
The suit against Florida Coastal was filed on behalf of former
students Taylor Casey, Audra Awai, Clifford Klein, Joycelyn
Stinson, Melissa Shipman and Amy Kisz.
The original suit was filed Feb. 1 in Florida's 11th Circuit in
Miami-Dade County.
IMPERIAL TOBACCO: Says Not Liable in Smokers' Class Action
----------------------------------------------------------
Sidhartha Banerjee, writing for The Canadian Press, reports that
tobacco companies embroiled in a historic civil suit kicked off
the trial on March 12 by arguing that smokers who get sick or
can't kick the habit have nobody to blame but themselves.
The landmark class-action case, with up to C$27 billion at stake,
kicked off in a Montreal courtroom where Canada's three biggest
cigarette companies began their battle against a group
representing all of Quebec's 1.8 million smokers.
It is considered the biggest class-action case in Canadian
history. It is also the first time tobacco companies have gone to
trial in a civil suit in Canada.
Two lawsuits are being heard together and they involve separate
groups of Quebec plaintiffs -- some who have gotten seriously ill
from smoking, and others who say they can't quit.
The defendants -- Imperial Tobacco Canada Ltd.; Rothmans, Benson &
Hedges; and JTI-Macdonald -- were heavily armed with lawyers and
public-relations staff as the case finally came to trial, 14 years
after an initial group of plaintiffs filed a suit.
Imperial Tobacco called the case an "opportunistic cash grab."
One by one lawyers made their opening statements, with the
companies arguing that the public has known for decades that
smoking can be harmful. Tobacco firms also tried shifting blame
onto the federal government, which regulates their industry.
The companies said they have always followed federal rules. In
recent years, the government has ordered that graphic warnings be
placed on packaging and has changed the visibility and marketing
rules to curb smoking. One of the lawyers for Imperial pointed to
a series of federal government memos from the 1960s that, she
said, proved the government was aware smoking was harmful.
"Those who decide to start smoking or continue smoking should
assume responsibility for a choice they make -- because no one can
say they don't know about the dangers associated with smoking,"
said lawyer Suzanne Cote, who represents Imperial Tobacco,
Canada's largest tobacco firm.
"Everything Imperial Tobacco has done is legal and in large part
with guidance from the federal government."
The smokers claim they were duped for years by big tobacco
companies who misled the public with slick advertising campaigns,
dubious marketing and skewed research.
One of the lead plaintiffs told reporters March 12 that she
started smoking in the 1960s after being "programmed" by industry
TV advertisements that made cigarettes seem cool.
Cecilia Letourneau started smoking at age 19 in 1964. Despite her
repeated attempts to quit, she said she hasn't succeeded.
"Smoking was in fashion," Ms. Letourneau said in the corridor of
the Montreal courthouse.
"I chose to smoke to show that I was 'in'."
The Quebec case is being closely watched both in Canada and
abroad, said Rob Cunningham of the Canadian Cancer Society.
"It's very difficult for a class action to actually get to trial
against the tobacco industry. Very few in the United States or
the world have actually gotten to that stage," said Mr. Cunnigham,
a lawyer. "The tobacco industry has repeatedly tried to postpone
this trial but they have been unable to delay the inevitable
forever."
Lawyer Bruce Johnston, who is representing Ms. Letourneau, said
the industry's attempt to blame the government is a non-starter.
Mr. Johnston said it's the companies that are liable -- not the
victims or the federal government. He said nothing absolves the
companies for putting out a product that, according to him, they
knew was harmful but found ways to show otherwise.
"Their strategy is, 'If science is against you, then make your own
science,'" said Mr. Johnston, who plans to present some 300
documents as part of his case.
JAMBA JUICE: Sued Over Misleading "All Natural" Smoothie Ads
------------------------------------------------------------
Kevin Anderson, on behalf of himself and all others similarly
situated v. Jamba Juice Company, Case No. 4:12-cv-01213 (N.D.
Calif., March 12, 2012)
In line with its healthy, "better for you" marketing and sales
approach, the Defendant's at-home smoothie kits are each
prominently labeled as "All Natural," Mr. Anderson notes. He
alleges that smoothie kits, however, are not "All Natural" because
they contain unnaturally processed, synthetic and non-natural
ingredients. He contends that as a result of the Defendant's
false, deceptive, and misleading advertising, he and other
consumers did not receive the benefit of their bargain when they
purchased the smoothie kits.
Mr. Anderson is a resident of San Bernardino, California. In
December 2011, he purchased Mango-a-go-go and Razzmatazz smoothie
kits at Food 4 Less, in Corona, California. He says that he
relied on the Defendant's representations that the smoothie kits
were "All Natural."
Jamba Juice Company, a Delaware corporation, owns and operates
retail locations, offering fruit smoothies, fresh squeezed juices,
teas, lattes, organic steel cut oatmeal, wraps, salads,
sandwiches, and a variety of baked goods and snacks on-the-go.
The Plaintiff is represented by:
Rosemary M. Rivas, Esq.
Danielle A. Stoumbos, Esq.
FINKELSTEIN THOMPSON LLP
100 Bush Street, Suite 1450
San Francisco, CA 94104
Telephone: (415) 398-8700
Facsimile: (415) 398-8704
E-mail: rrivas@finkelsteinthompson.com
dstoumbos@finkelsteinthompson.com
KINROSS GOLD: Faces Shareholder Class Action Over Tasiast Mine
--------------------------------------------------------------
Koskie Minsky LLP disclosed that on March 12, 2012, a shareholder
class action was commenced in Toronto against Kinross Gold
Corporation and several of its senior officers. Kinross is a
large gold mining company headquartered in Toronto, Ontario. The
plaintiffs allege there were misrepresentations in Kinross's
public disclosure relating to its Tasiast mine in Mauritania,
Africa. Kinross had acquired the Tasiast mine in September 2010
as part of its acquisition of Red Back Mining Inc. The alleged
misrepresentations include statements relating to the quantity and
quality of gold ore at the Tasiast mine and the results of
Kinross's drilling program at the mine.
The plaintiffs are the Trustees of the Musicians' Pension Fund of
Canada. They have commenced this action on their own behalf and
on behalf of all investors who purchased Kinross shares from
February 16, 2011 through and including January 16, 2012 on the
Toronto Stock Exchange or other secondary market in Canada. The
plaintiffs seek billions of dollars on behalf of shareholders.
"Shareholders have lost billions of dollars as a result of
management's repeated assurances that the mine in Mauritania was a
viable mine with substantial reserves", said Kirk Baert --
kbaert@kmlaw.ca -- a partner with Koskie Minsky LLP in Toronto.
"Now they want to write down C$2.49 billion in goodwill just 18
months after the purchase of the mine. Something is very wrong
here."
According to The Canadian Press, Kinross said on March 13 that a
class-action lawsuit launched by shareholders alleging
misrepresentation involving a mine in Mauritania is without merit.
Shares in the gold miner fell nearly 20% in January after the
company said construction of its Tasiast mine in the West African
country will be delayed by months and a writedown on the project
was expected.
"It's not uncommon for class-action litigation to be brought
against a company following a period of volatility in its share
price," Kinross said in a statement.
"We believe the allegations that have been made are without merit,
and we plan to vigorously oppose and defend against any litigation
that may result."
Kinross said last month it would take an additional six to nine
months of analysis and planning at Tasiast to determine the
optimal processing mix to reduce operating costs.
The review will include a possible change in the ore processing
options at the project because of a halo of low-grade ore
surrounding the higher grade ore at the deposit.
LKQ CORPORATION: Inks Deal to Settle Aftermarket Suppliers Suit
---------------------------------------------------------------
LKQ Corporation, in January, reached a settlement of a class
action lawsuit it filed against several aftermarket product
suppliers, according to the Company's February 27, 2012 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
The Company is a plaintiff in a class action lawsuit against
several aftermarket product suppliers. In January 2012, the
Company reached a settlement with one of the defendants, and a
settlement with the other vendors is subject to court approval.
The Company's recovery is expected to be approximately $15 million
in the aggregate, net of legal fees. The Company said it will
recognize the gains from these settlements when substantially all
uncertainties regarding the timing and the amount of the
settlements are resolved.
MERCK & CO: To Pay $5.1 Mil. in Vytorin Shareholder Class Suit
--------------------------------------------------------------
Pat Murphy, writing for Dolan Media Newswires, reports that Merck
will pay $5.1 million in attorney fees and institute corporate
reforms under the terms of a settlement of a shareholder class
action concerning the alleged suppression of negative clinical
test results for the blockbuster anti-cholesterol drug Vytorin.
U.S. District Judge Thomas Cavanaugh gave final approval to the
settlement Feb. 28.
MERCK & CO: Rottenstein Balks at Fosamax Class Action Ruling
------------------------------------------------------------
The Rottenstein Law Group, which represents clients with claims
stemming from the severe side effects of the bisphosphonate drug
Fosamax, has learned with some disappointment of a significant
setback to four individual lawsuits against Merck & Co., Inc., the
drug's manufacturer.
In September 2005, a putative class of plaintiffs filed a class
action lawsuit against Merck in federal court in Tennessee. When
all federal Fosamax lawsuits were consolidated for purposes of
pretrial procedures, the Judicial Panel on Multidistrict
Litigation transferred the consolidated cases to the United States
District Court for the Southern District of New York.
The federal court in New York denied class certification and
dismissed the putative class action in January 2008. Before this
dismissal, however, four intended class members, each a resident
of Virginia, filed an individual action (based in state-law
claims) against Merck in the Southern District of New York
(asserting federal jurisdiction based on diversity of
citizenship).
Merck moved for dismissal of the individual cases, arguing that
they were time-barred by the applicable law, being that each case
was commenced more than two years after the latest possible date
that each respective plaintiff had sustained his or her alleged
injuries. The District Court granted Merck's motion, dismissing
the four cases. The plaintiffs appealed the dismissals to the
United States Circuit Court for the Second Circuit, arguing (as
they had done unsuccessfully to the District Court) that the time
to start a lawsuit was tolled while the putative class action was
being considered for approval.
The Second Circuit determined that Virginia law governed the
circumstance and accordingly asked Virginia's highest court to
advise it. The Virginia Supreme Court has now ruled, in an
opinion issued on March 2 in Casey v. Merck, Record No. 111438,
that "Virginia recognizes neither equitable nor statutory tolling
due to the pendency of a putative class action in another
jurisdiction." In other words, the four individuals are not
likely to have their day in court.
Despite being the most popular osteoporosis treatment on the
market, Fosamax has been linked to several serious side effects.
In 2004, researchers found a causal connection between Fosamax and
osteonecrosis of the jaw, a condition that causes the jawbone to
literally die because of a lack of blood supply. More recently,
there has been a link between Fosamax and low-impact femur
fractures experienced from standing height or less. Evidence is
mounting that Fosamax and other bisphosphonate drugs prescribed to
treat osteoporosis cause a dramatic increase in the risk of this
kind of rare fracture to the thigh bone.
The Rottenstein Law Group advises anyone with a friend or family
member who has been prescribed Fosamax or another osteoporosis
drug to recommend to that person that he or she consult a
physician immediately, then speak to a qualified Fosamax lawyer.
Affected individuals are advised to keep apprised of the latest
news concerning the Fosamax femur fracture lawsuits by checking
the Fosamax Femur Fracture Lawsuit Information Center for updated
information.
The Rottenstein Law Group is a New York-based law firm that
represents clients in mass tort actions.
MIDAMERICAN ENERGY: Awaits 9th Circuit Ruling in "Kivalina" Case
----------------------------------------------------------------
MidAmerican Energy Holdings Company is awaiting a decision from
the United States Court of Appeals for the Ninth Circuit in the
lawsuit captioned Kivalina v. ExxonMobil Corporation, et al.,
according to the Company's February 27, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
The Company closely monitors ongoing environmental litigation.
Many of the pending cases relate to lawsuits against industry that
attempt to link Greenhouse Gases (GHG) emissions to public or
private harm. The Company believes the cases are without merit,
despite decisions where United States Courts of Appeals reversed
district court rulings dismissing the cases in 2009. The lower
courts initially refrained from adjudicating the cases under the
"political question" doctrine, because of their inherently
political nature. Nevertheless, an adverse ruling in any of these
cases would likely result in increased regulation of GHG emitters,
including the Company's generating facilities, and financial
uncertainty.
In September 2009, the United States Court of Appeals for the
Second Circuit ("Second Circuit") issued its opinion in the case
of Connecticut v. American Electric Power, et al, which remanded
to the lower court a nuisance action by eight states and the City
of New York against five large utility emitters of carbon dioxide.
The United States District Court for the Southern District of New
York ("Southern District of New York") dismissed the case in 2005,
holding that the claims that GHG emissions from the defendants'
coal-fueled generating facilities were causing harmful climate
change and should be enjoined as a public nuisance under federal
common law presented a "political question" that the court lacked
jurisdiction to decide. The Second Circuit rejected this
conclusion and stated the Southern District of New York was not
precluded from determining the case on its merits. In
December 2010, the United States Supreme Court agreed to hear the
case on appeal from the Second Circuit and issued its decision in
June 2011 dismissing the federal common law claim of nuisance and
holding that the Clean Air Act provides a means to seek limits on
emissions of carbon dioxide on power plants.
In October 2009, a three-judge panel in the United States Court of
Appeals for the Fifth Circuit ("Fifth Circuit") issued its opinion
in the case of Ned Comer, et al. v. Murphy Oil USA, et al.,
("Comer I") a putative class action lawsuit against insurance,
oil, coal and chemical companies, based on claims that the
defendants' GHG emissions contributed to global warming that in
turn caused a rise in sea levels and added to the ferocity of
Hurricane Katrina, which combined to damage the plaintiff's
private property, as well as public property. In 2007, the United
States District Court for the Southern District of Mississippi
("Southern District of Mississippi") dismissed the case based on
the lack of standing and further held that the claims were barred
by the political question doctrine. In March 2010, the full court
of the Fifth Circuit agreed to rehear the case; however, in May
2010, the Fifth Circuit dismissed the appeal for failure to have a
quorum, resulting in the Southern District of Mississippi's
decision, holding that property owners did not have standing to
sue for climate change and that climate change was a political
question for the United States Congress, standing as good law.
The plaintiffs filed a petition asking the United States Supreme
Court to direct the Fifth Circuit to reinstate the appeal and
return it to the original panel. In January 2011, the United
States Supreme Court denied the request, resulting in the original
dismissal of the case to stand. However, on May 27, 2011, the
Comer case was refiled ("Comer II") in the Southern District of
Mississippi. The defendants in Comer II have filed a motion to
dismiss, which is pending before the court. The Company was not a
party in Comer I and is not a party in Comer II.
In October 2009, the United States District Court for the Northern
District of California ("Northern District of California") granted
the defendants' motions to dismiss in the case of Native Village
of Kivalina v. ExxonMobil Corporation, et al. The plaintiffs
filed their complaint in February 2008, asserting claims against
24 defendants, including electric generating companies, oil
companies and a coal company, for public nuisance under state and
federal common law based on the defendants' GHG emissions. MEHC
was a named defendant in the Kivalina case. The Northern District
of California dismissed all of the plaintiffs' federal claims,
holding that the court lacked subject matter jurisdiction to hear
the claims under the political question doctrine, and that the
plaintiffs lacked standing to bring their claims. The Northern
District of California declined to hear the state law claims and
the case was dismissed without prejudice to their future
presentation in an appropriate state court. In November 2009, the
plaintiff's appealed the case to the United States Court of
Appeals for the Ninth Circuit ("Ninth Circuit") where briefing has
been completed, but the case has not yet been scheduled for oral
argument. In February 2011, the Ninth Circuit stayed the case,
pending the issuance of the United States Supreme Court's decision
in Connecticut v. American Electric Power, et al. The oral
arguments in Kivalina were held before the Ninth Circuit in
November 2011 and the parties await the court's decision.
MOODY'S CORPORATION: Consolidated Securities Suit Remains Pending
-----------------------------------------------------------------
A consolidated putative securities class action lawsuit filed
against Moody's Corporation remains pending, according to the
Company's February 27, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
Two purported class action complaints have been filed by purported
purchasers of the Company's securities against the Company and
certain of its senior officers, asserting claims under the federal
securities laws. The first was filed by Raphael Nach in the U.S.
District Court for the Northern District of Illinois on July 19,
2007. The second was filed by Teamsters Local 282 Pension Trust
Fund in the U.S. District Court for the Southern District of New
York on September 26, 2007. Both actions have been consolidated
into a single proceeding entitled In re Moody's Corporation
Securities Litigation in the U.S. District Court for the Southern
District of New York. On June 27, 2008, a consolidated amended
complaint was filed, purportedly on behalf of all purchasers of
the Company's securities during the period February 3, 2006
through October 24, 2007. Plaintiffs allege that the defendants
issued false and/or misleading statements concerning the Company's
business conduct, business prospects, business conditions and
financial results relating primarily to MIS's ratings of
structured finance products including RMBS, CDO and constant-
proportion debt obligations. The plaintiffs seek an unspecified
amount of compensatory damages and their reasonable costs and
expenses incurred in connection with the case. The Company moved
for dismissal of the consolidated amended complaint in September
2008. On February 23, 2009, the court issued an opinion
dismissing certain claims and sustaining others. On January 22,
2010, plaintiffs moved to certify a class of individuals who
purchased Moody's Corporation common stock between February 3,
2006 and October 24, 2007, which the Company opposed. On
March 31, 2011, the court issued an opinion denying plaintiffs'
motion to certify the proposed class. On April 14, 2011,
plaintiffs filed a petition in the United States Court of Appeals
for the Second Circuit seeking discretionary permission to appeal
the decision. The Company filed its response to the petition on
April 25, 2011. On July 20, 2011, the Second Circuit issued an
order denying plaintiffs' petition for leave to appeal.
No further updates were disclosed in the Form 10-K.
N.C. BAPTIST HOSPITAL: Wants Employees to Pay Settlement Taxes
--------------------------------------------------------------
Richard Craver, writing for Winston-Salem Journal, reports that
N.C. Baptist Hospital wants current and former employees
benefitting from a federal class-action lawsuit against Baptist to
pay the hospital's tax bill for the $4.07 million settlement that
is due them.
The lawsuit brought to light that Baptist and certain affiliates'
group health plans required their employees to pay more in fees
for health benefits than other corporate clients paid.
According to a legal document filed on March 9 by the class-action
counsel, Baptist wants to deduct its tax liabilities from the net
proceeds available to nearly 15,000 participants.
U.S. District Judge James Beaty Jr. on Feb. 24 approved a final
settlement of $5.38 million, ruling that total was "fair,
reasonable and adequate." That included Baptist agreeing to pay
$438,500 in plaintiffs' attorney fees. The issue of federal taxes
paid on the settlement money by Baptist was not addressed.
The settlement notice to participants said the payment "represents
taxable wages to you. . . . You also will receive a W-2 form
regarding any payment."
Baptist's request could delay when the settlement money is paid.
Settlement money is scheduled to be distributed to participants by
April 24.
It is not known how much money Baptist is requesting for its tax
liability, or what percentage could be deducted from each
participant if the request is approved.
Attorneys for the class-action lawsuit immediately cried foul,
saying Baptist was trying to change the terms of the settlement.
"NCBH's stated intention to take amounts from the common fund for
its own tax liabilities is a unilateral attempt to not only change
the terms of the Phase II settlement, but to renege on the
representations it made to its current and former employees in the
notice," according to the filing by Kenneth Johnson and Robert
Zaytoun, counsel for the class-action lawsuit.
The tax liability "is NCBH's obligation to the IRS as an
employer," according to the filing. "NCBH cannot rationally argue
that payment of its tax liability from the common fund would
benefit any class member."
Randy Loftis Jr., counsel for Baptist, declined to comment on
March 12.
Messrs. Johnson and Zaytoun could not be reached to elaborate on
their filing.
About $4.07 million is projected to be left once all attorney fees
are paid. The five primary plaintiffs will each receive $4,000 in
compensation.
The approval of the settlement was expected to have concluded a
lawsuit filed in January 2009 involving MedCost, which Baptist co-
owns with Carolinas HealthCare System of Charlotte.
The lawsuit involves current and former employees and their
families. Those eligible for the settlement participated in the
plan from March 6, 2002, to May 7, 2009. Plan participants made
contributions of $9 million to $13 million a year beginning in
March 2002, the lawsuit said.
The lawsuit said Baptist "violated the duties, responsibilities
and obligations imposed upon them as a fiduciary" under the
federal Employee Retirement Income Security Act. ERISA prohibits
most employers from using companies they own to provide health
benefits for employees unless they can show they are putting
workers' interests first.
Baptist has denied any wrongdoing and has said that the extra
charges to its employees were justified because employees
benefited from a better overall health-care plan.
Baptist officials said their selection of MedCost was a plan-
sponsor function, not a fiduciary function, and therefore its
actions were not governed by ERISA.
But according to the agreement, the plaintiffs' attorneys
"obtained reliable documentary evidence to suggest that NCBH had a
history of 'self-dealing' with its subsidiary provider network.
Indeed, that evidence indicated NCBH was even offering better
pricing to outside health plans that used the MedCost network than
it was offering its own plan and own employees."
Baptist has agreed to respond to the filing by March 16.
Attorneys for the class-action lawsuit have agreed to respond to
the Baptist filing by March 23.
PRICELINE.COM INCORPORATED: Hotel Occupancy Suits Remain Pending
----------------------------------------------------------------
Several lawsuits, including certified and putative class action
lawsuits, against priceline.com Incorporated relating to payment
of hotel occupancy and other taxes remain pending, according to
the Company's February 27, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
The Company and certain third-party defendant online travel
companies are currently involved in approximately fifty lawsuits,
including certified and putative class actions, brought by or
against U.S. states, cities and counties over issues involving the
payment of hotel occupancy and other taxes (i.e., state and local
sales tax) and the Company's "merchant" hotel business. The
Company's subsidiaries Lowestfare.com LLC and Travelweb LLC are
named in some but not all of these cases. Generally, each
complaint alleges, among other things, that the defendants
violated each jurisdiction's respective hotel occupancy tax
ordinance with respect to the charges and remittance of amounts to
cover taxes under each law. Each complaint typically seeks
compensatory damages, disgorgement, penalties available by law,
attorneys' fees and other relief.
With respect to the principal claims in these matters, the Company
believes that the ordinances at issue do not apply to the service
it provides, namely the facilitation of reservations, and,
therefore, that the Company does not owe the taxes that are
claimed to be owed. Rather, the Company believes that the
ordinances at issue generally impose hotel occupancy and other
taxes on entities that own, operate or control hotels (or similar
businesses) or furnish or provide hotel rooms or similar
accommodations. In addition, in many of these matters,
municipalities have asserted claims for "conversion" --
essentially, that the Company has collected a tax and wrongfully
"pocketed" those tax dollars -- a claim that the Company believes
is without basis and has vigorously contested. The municipalities
that are currently involved in litigation and other proceedings
with the Company, and that may be involved in future proceedings,
have asserted contrary positions and will likely continue to do
so. From time to time, the Company has found it expedient to
settle, and may in the future agree to settle, claims pending in
these matters without conceding that the claims at issue are
meritorious or that the claimed taxes are in fact due to be paid.
In connection with some of these tax audits and assessments, the
Company may be required to pay any assessed taxes, which amounts
may be substantial, prior to being allowed to contest the
assessments and the applicability of the ordinances in judicial
proceedings. This requirement is commonly referred to as "pay to
play" or "pay first." For example, the City of San Francisco
assessed the Company approximately $3.4 million (an amount that
includes interest and penalties) relating to hotel occupancy
taxes, which the Company paid in July 2009. Payment of these
amounts, if any, is not an admission that the Company believes it
is subject to such taxes and, even if such payments are made, the
Company intends to continue to assert its position vigorously.
The Company has successfully argued against a "pay first"
requirement asserted in another California proceeding.
Litigation is subject to uncertainty and there could be adverse
developments in these pending or future cases and proceedings.
For example, in October 2009, a jury in a San Antonio class action
found that the Company and the other online travel companies that
are defendants in the lawsuit "control" hotels for purposes of the
local hotel occupancy tax ordinances at issue and are, therefore,
subject to the requirements of those ordinances. On July 1, 2011,
the court issued findings of fact and conclusions of law in
connection with this case. In addition to ruling that hotel tax
was due from defendants on the markup and service fee, the court
held defendants liable for penalties and interest per the terms of
each city's applicable ordinance, but capped penalties at fifteen
percent (15%) of the total amount of unpaid taxes at the time of
entry of judgment; ordinances without a penalty provision are
assessed a fifteen percent (15%) penalty under the Texas Tax Code.
The Company expects supplemental findings of fact and conclusions
of law to be issued by the court, followed by a judgment. The
Company intends to vigorously pursue an appeal of the judgment on
legal and factual grounds.
An unfavorable outcome or settlement of pending litigation may
encourage the commencement of additional litigation, audit
proceedings or other regulatory inquiries. In addition, an
unfavorable outcome or settlement of these actions or proceedings
could result in substantial liabilities for past and/or future
bookings, including, among other things, interest, penalties,
punitive damages and/or attorney fees and costs. There have been,
and will continue to be, substantial ongoing costs, which may
include "pay first" payments, associated with defending the
Company's position in pending and any future cases or proceedings.
An adverse outcome in one or more of these unresolved proceedings
could have a material adverse effect on the Company's business and
results of operations and could be material to the Company's
earnings or cash flow in any given operating period.
To the extent that any tax authority succeeds in asserting that
the Company has a tax collection responsibility, or the Company
determines that it has such a responsibility, with respect to
future transactions, the Company may collect any such additional
tax obligation from its customers, which would have the effect of
increasing the cost of hotel room reservations to its customers
and, consequently, could make its hotel service less competitive
(i.e., versus the websites of other online travel companies or
hotel company websites) and reduce hotel reservation transactions;
alternatively, the Company could choose to reduce the compensation
for its services on "merchant" hotel transactions. Either step
could have a material adverse effect on the Company's business and
results of operations.
Developments in the Year Ended December 31, 2011
In the year ended December 31, 2011 and as of February 27, 2012,
six of the approximately fifty currently pending lawsuits and
seven of the total number of currently pending administrative
proceedings were commenced. District of Columbia v.
Priceline.com, Inc. (Superior Court for the District of Columbia)
was filed on March 22, 2011; McAllister v. Hotels.com, L.P., et
al. (Circuit Court of Saline County, Arkansas), a putative class
action, was filed on February 22, 2011; County of Volusia, et al.
v. Priceline.com, Inc., et al. (Circuit Court of Volusia County,
Florida) was filed on April 20, 2011; Town of Breckenridge,
Colorado v. Colorado Travel Company, LLC, et al., (Summit County
District Court), a putative class action, was filed on July 25,
2011; County of Nassau v. Expedia, Inc. et al. (Supreme Court of
the State of New York, County of Nassau) was filed on
September 26, 2011. This case previously had been dismissed from
federal court and was refiled as a state court action. State of
Mississippi ex rel. Attorney General Jim Hood v. Priceline.com,
Inc., et al. (Chancery Court for Hinds County, Mississippi) was
filed in December 2011. In addition, County of Kent, Michigan v.
Hotels.com, L.P., et al. (Circuit Court for Kent County) was filed
in November 2011; the Priceline defendants were voluntarily
dismissed in December 2011.
In addition, during the year ended December 31, 2011 and as of
February 27, 2012, appellate rulings and rulings granting
dispositive motions brought by the Company (or another co-
defendant), e.g. motions to dismiss or for summary judgment, were
issued. For example, on June 28, 2011, in St. Louis County, et
al. v. Prestige Travel, Inc., et al. (Circuit Court of St. Louis
County, Missouri; filed July 2009), the Supreme Court of Missouri
affirmed the lower court's dismissal of all claims against the
online travel companies. On October 25, 2011, in City of Houston
v. Hotels.com, L.P. (Harris County, Tex. Dist. Ct., filed on March
5, 2007) (Tex. App., appeal filed April 14, 2010), the Texas 14th
Court of Appeals affirmed the lower court's grant of summary
judgment in favor of the defendants on all claims, holding that
the statutes at issue in that case did not apply to defendants'
hotel reservation facilitation services. In January 2012,
Plaintiffs filed a petition for review before the Texas Supreme
Court. In State of Oklahoma v. Priceline.com, et al. (District
Court of Oklahoma County, Oklahoma, filed November 2010),
defendants' motion to dismiss was granted on March 11, 2011 and
plaintiffs did not appeal. Defendants' motion for summary
judgment was granted on March 24, 2011 in City of Birmingham,
Alabama, et al. v. Orbitz, Inc. et al., (Circuit Court of
Jefferson County, filed December 2009); Plaintiffs have appealed
that ruling to the Alabama Supreme Court. On April 29, 2011, the
Kentucky Court of Appeals affirmed the lower court's dismissal of
all claims against the online travel companies in City of Bowling
Green, Kentucky v. Hotels.com, L.P., et al. (filed in Warren
Circuit Court in March 2009; appeal filed April 2010; motion for
discretionary review filed with Kentucky Supreme Court in May
2011). In February 2012, the Kentucky Supreme Court denied the
plaintiff's motion for discretionary review of the Court of
Appeals' decision. In City of San Diego, California v.
Hotels.com, L.P., et al., JCCP 4472 (Los Angeles Superior Court,
filed February 9, 2006), on September 6, 2011, the court granted
the online travel companies' petition to (i) vacate the hearing
officer's prior ruling that the online travel company defendants
are liable for transient occupancy tax pursuant to San Diego's
ordinance, (ii) issue a new ruling that the online travel company
defendants are not liable for such tax, and (iii) to set aside the
City of San Diego's assessments. With respect to its remaining
claims, the City of San Diego has indicated it will stipulate to a
consent judgment in favor of the online travel companies. The
City has indicated it plans to appeal. In City of Santa Monica v.
Expedia, Inc. et al., JCCP 4472 (Los Angeles Superior Court, filed
June 25, 2010), the court granted the online travel companies'
motion to dismiss all claims without leave to amend; judgment was
entered on July 26, 2011 in favor of the defendants. The case is
currently on appeal. In Township of Lyndhurst, New Jersey v.
priceline.com Inc., et al. (filed in the U.S. District Court for
the District of New Jersey in June 2008) (U.S. Court of Appeals
for the Third Circuit, appeal filed April 2009), the Third Circuit
affirmed the District Court's dismissal of the case. On
August 24, 2011, the Third Circuit also denied the Township's
motion for rehearing. On January 28, 2012, in the City of
Branson, Missouri v. Hotels.com, LP., et al. (Circuit Court of
Greene County, Missouri, filed December 2006), the Court granted
defendants' motion to dismiss all causes of action. In City of
Goodlettsville, Tennessee, et al. v. priceline.com Incorporated,
et al. (U.S. District Court for the Middle District of Tennessee;
filed June 2008), the court granted the defendants' motion for
summary judgment on February 21, 2012.
Rulings granting dispositive motions or granting relief sought by
a plaintiff municipality (or state) also were issued. For
example, on August 3, 2011, in County of Lawrence, Pennsylvania v.
Hotels.com, L.P., et al. (Court of Common Pleas of Lawrence
County, Pennsylvania, filed November 2009) (Commonwealth Court of
Pennsylvania, appeal filed in November 2010), the Court for the
Commonwealth of Pennsylvania reversed the dismissal by the Court
of Common Pleas of Lawrence of the County's declaratory relief
claim, but affirmed the dismissal of the remaining counts. In The
Village of Rosemont, Illinois v. priceline.com, Inc., et al. (U.S.
District Court for the Northern District of Illinois, filed in
July 2009), on October 14, 2011, the court granted plaintiff's
motion for summary judgment. In City of Atlanta, Georgia v.
Hotels.com L.P., et al. (Superior Court of Fulton County, Georgia,
filed March 2006), following the decision by the Georgia Supreme
Court affirming summary judgment in favor of defendants in May
2011, the Superior Court of Fulton County found that there are
unresolved claims in the case for conversion, punitive damages,
and attorneys' fees. That decision is the subject of a motion for
reconsideration filed by defendants on December 29, 2011.
Lastly, in the year ended December 31, 2011 the Company reached
agreements with the respective plaintiffs resolving the claims for
purported back taxes in the following cases: Brevard County,
Florida v. Priceline.com Inc., et al. (U.S. District Court for the
Middle District of Florida, filed October 2009); County of
Genesee, Michigan, et al. v. Hotels.com L.P., et al. (Circuit
Court for the County of Ingham, Michigan, filed in February 2009);
City of Jacksonville v. Hotels.com, L.P., et al., 2006-CA-005393
(Circuit Court for Duval County, filed August 4, 2006); Anne
Gannon v. Hotels.com, L.P., 50 2009 CA 025919 (Circuit Court for
Palm Beach County, filed July 30, 2009); City of Myrtle Beach,
South Carolina v. Hotels.com, L.P., et al. (Court of Common Pleas
for Horry County, South Carolina, filed in February 2007); Town of
Hilton Head Island, South Carolina v. Hotels.com, L.P., et al.
(Court of Common Pleas for Beaufort County, South Carolina, filed
in April 2010) and Horry County, South Carolina, et al. v.
Hotels.com, LP, et al. (Court of Common Pleas, Horry County, South
Carolina; filed in February 2007). These cases have been
dismissed. In addition, County of Monroe, Florida v.
Priceline.com, Inc. et al. (U.S. District Court for the Southern
District of Florida, filed January 2009)(agreement signed August
2010) and the Tourist Development Tax claims asserted by the
County in Priceline.com, Inc. v. Miami-Dade County, Florida, et
al., were dismissed in 2011 pursuant to the August 2010 agreement
reached in the County of Monroe case. As part of each of these
agreements, plaintiffs have agreed to not assert claims based on
the ordinance at issue in the respective action for periods that
range from two to four years. The settlement amounts in these
cases are not material to the Company's results of operations or
cash flow for the year ended December 31, 2011.
PRICELINE.COM INCORPORATED: Appeal in "Christe" Suit Dismissed
--------------------------------------------------------------
An appeal from a court ruling in a lawsuit captioned Chiste, et
al. v. priceline.com Inc., et al., was dismissed in December,
according to the Company's February 27, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
On June 21, 2011 in Chiste, et al. v. priceline.com Inc., et al.
(United States District Court for the Southern District of New
York; filed in December 2008), the court granted the Company's
motion to dismiss all claims against it except the breach of
fiduciary claim. On June 21, 2011, the case was transferred to
the United States District Court for the Northern District of
Illinois for resolution of the remaining claim, which was
consolidated under Peluso v. Orbitz.com, et al., 11 Civ. 4407 on
July 14, 2011. On July 13, 2011, the plaintiffs filed a Notice of
Appeal of the June 21, 2011 decision in the United States Court of
Appeals for the Second Circuit. On July 25, 2011, the Peluso
court granted plaintiff's motion to voluntarily dismiss the claim
against the Company in the Northern District of Illinois. On
December 6, 2011, the Second Circuit dismissed the appeal for lack
of jurisdiction.
The Company intends to defend vigorously against the claims in all
of the on-going proceedings.
RADIANT TECH: Plumb-PEX Settlement Notification Program Begins
--------------------------------------------------------------
A notification program began on March 12, as ordered by the United
States District Court for the District of Minnesota, to inform
people and entities who own or owned a home, building or other
structure containing a Plumb-PEX plumbing system about a proposed
settlement in a class action lawsuit. The settlement resolves
claims about whether Radiant Technology, Inc. and Uponor, Inc.
("RTI" or the "Defendants") sold Plumb-PEX plumbing systems
containing ASTM standard F1807 brass insert fittings and stainless
steel clamps that may leak and cause damage to property. The
Defendants deny all of the claims in the lawsuit, but have agreed
to settle the case to avoid the cost and uncertainty of a trial.
The settlement includes a group of people called a "Class" or
"Class members" and consists of anyone who owns or owned a
property containing an RTI Plumb-PEX plumbing system containing
ASTM standard F1807 brass insert fittings and stainless steel
clamps ("RTI Plumb-PEX Plumbing System") installed on or after May
15, 1999. Owners of systems that have: (a) had a leak in one or
more of the system's components, or (b) a water flow differential
of 50% between the hot and cold lines that supply one or more
fixtures may receive benefits from the settlement. People and
entities that paid for damages or repairs related to a qualifying
leak in an RTI Plumb-PEX Plumbing System may also submit claims.
The settlement will reimburse Class members for property damage
caused by a qualifying leak in a system component. It will also
provide repairs or possibly the replacement of an RTI Plumb-PEX
Plumbing System in structures that have had two or more qualifying
leaks. Eligible Class members will have at least 18 months to
file a claim even if that time period expires after their
warranty.
Those included in the settlement may send in a claim form to ask
for a payment or repairs, or they can exercise other legal rights
such as asking to be excluded from, or objecting to, the
settlement. The deadline for exclusions and objections is June 1,
2012. The earliest deadline to submit claims is December 26,
2013. Actual deadlines will vary by property based on when a
problem occurred and whether the original warranty on the system
is still in place.
The Court will hold a hearing in this case, In Re: Uponor, Inc.,
F1807 Plumbing Fittings Products Liability Litigation, MDL No
2247, on June 26, 2012 to consider whether to approve the
settlement so that payments and repairs can be made.
The Court has appointed the law firms of Larson King, LLP of Saint
Paul, Minnesota; Lockridge Grindal Nauen, PLLP of Minneapolis,
Minnesota; Cuneo, Gilbert & LaDuca, LLP of Washington, D.C.;
Pendley, Baudin & Coffin, LLP of Plaquemine, Louisiana; Perkins
Coie LLP of Denver, Colorado; Audet & Partners, LLP of San
Francisco, California; Birka-White Law Offices of Danville,
California; Law Offices of David H. Greenberg of Los Angeles,
California; and Zimmerman Reed PLLP of Minneapolis, Minnesota to
act as Class Counsel and represent the people included in the
settlement.
More information, including notices, a claim form, a picture of
the RTI Plumb-PEX Plumbing System components and the Settlement
Agreement are available at http://www.RTIsettlement.comor by
calling 1-855-248-4368.
ROVI CORP: Gets Approval to Settle Sonic Acquisition Litigation
---------------------------------------------------------------
Rovi Corporation obtained final court approval of an agreement
which disposes of all causes of action asserted in a consolidated
class action complaint filed against the Company in connection
with its acquisition of Sonic Solutions, according to the
Company's February 23, 2012, 10-K filing with the U.S. Securities
and Exchange Commission for the fiscal year ended December 31,
2011.
On January 3, 2011, a putative class action lawsuit entitled
Vassil Vassilev v. Sonic Solutions, et al. was filed in California
Superior Court for the County of Marin by an individual purporting
to be a shareholder of Sonic Solutions against Sonic Solutions,
the members of its board of directors, the Company and Sparta
Acquisition Sub, arising out of the proposed transaction between
the Company and Sonic. On January 10, 14 and 18, 2011, three
substantially similar putative class action lawsuits were filed in
the same court against the same defendants, entitled Matthew
Barnes v. Habinger [sic] et al., Mark Chropufka v. Sonic
Solutions, et al. and Diana Willis v. Sonic Solutions, et al.,
respectively. The Lawsuits allege that the members of Sonic's
board of directors breached their fiduciary duties of care and
loyalty by, inter alia, failing to maximize shareholder value and
by approving the merger transaction via an unfair process. The
Lawsuits allege that the Company and Sparta Acquisition Sub aided
and abetted the breach of fiduciary duties. In January 2011, the
actions were consolidated and an amended consolidated complaint
was filed adding allegations of omissions in the Schedule 14D-9
Recommendation Statement filed by Sonic on January 14, 2011 and
seeking to enjoin the acquisition of Sonic by the Company, to
rescind the transaction in the event it is consummated, to impose
a constructive trust, and monetary damages, fees and costs in an
unspecified amount.
On January 25, 2011, another substantially similar putative class
action lawsuit was filed in the same court against the same
defendants, entitled Joann Thompson v. Sonic Solutions, et al. On
January 28, 2011, the parties to the consolidated action reached
an agreement in principle to settle. The proposed settlement,
which is subject to court approval following notice to the class
and a hearing, disposes of all causes of action asserted in the
consolidated action and in Thompson v. Sonic Solutions, et. al. on
behalf of all class members who do not elect to opt out of the
settlement. Class members who elect to opt out, if any, may
continue to pursue causes of action against the defendants. On
November 29, 2011, the plaintiff in the Thompson action filed a
voluntary request for dismissal, which the court granted on the
same date. The court granted final approval of the settlement in
February 2012.
STATE OF TENNESSEE: Congressman Files Voting Roll Class Action
--------------------------------------------------------------
WBIR.com reports that a former Tennessee Congressman has filed a
class action lawsuit against the State of Tennessee, after he was
not allowed to vote on Super Tuesday.
On March 6, Former Congressman Lincoln Davis attempted to vote in
Pall Mall, the Fentress County precinct he says he's been voting
in since 1995. He was told his name no longer appeared on the
voter rolls, and was not allowed to cast a ballot. Mr. Davis says
that's the first time he's not voted since 1964.
On March 12, Davis announced he has filed a class action lawsuit
in the United States District Court for the Middle District of
Tennessee to challenge the actions taken by Tennessee state
government officials to unlawfully purge voters from the state's
voting rolls.
Congressman Davis is seeking a federal court order requiring the
State of Tennessee to restore the names of all Tennesseans who
were improperly purged from the State's voting rolls.
"This lawsuit is not about me," Congressman Davis said, "Rather,
I'm taking this action to ensure that the State of Tennessee is
required to restore all Tennesseans to the voting rolls whose
names were improperly removed."
Congressman Davis is represented by the law firm of Barrett
Johnston, LLC, a law firm with a rich history of success in
handling class action litigation and civil rights litigation,
including voting rights cases, on behalf of individuals whose
rights have been violated.
In bringing this action, founding partner, George Barrett said in
a press release, "The right to vote is fundamental to any
democracy, but it's especially important to our American
democracy, given the long history of government undermining the
right to vote. Our law firm is committed to representing
individuals, like Congressman Davis, whose right to vote has been
violated by what we believe is a concerted effort by state
government officials to suppress the vote in Tennessee this
election cycle."
STUBHUB INC: Accused of Selling Invalid Tickets in California
-------------------------------------------------------------
Celina Z. Porras, as an individual, and on behalf of all others
similarly situated v. StubHub, Inc., and Does 1 through 100,
inclusive, Case No. 4:12-cv-01225 (N.D. Calif., March 12, 2012)
accuses the Defendants of violating the California Business and
Professions Code governing the resale of tickets to sporting,
musical, theatre and other entertainment events.
StubHub makes numerous misrepresentations and "guarantees" on its
Web site that a ticket purchased by a buyer will be "authentic"
and "valid for entry," when, in fact, StubHub delivers tickets
that are not authentic or valid, Ms. Porras alleges. As a result,
she contends, she and members of the proposed class have been
denied entry to or expelled from their seats at events for which
they purchased through StubHub purportedly "authentic" and "valid
for entry" tickets.
Ms. Porras is a resident of Los Angeles County, California.
StubHub is a Delaware corporation, with its principal place of
business in San Francisco, California. The Plaintiff does not
know the true names or capacities of the Doe Defendants.
The Plaintiff is represented by:
Peter M. Hart, Esq.
Amber S. Healy, Esq.
LAW OFFICES OF PETER M. HART
12121 Wilshire Blvd., Suite 205
Los Angeles, CA 90025
Telephone: (310) 207-0109
Facsimile: (509) 561-6411
E-mail: hartpeter@msn.com
ahealy.loph@gmail.com
- and -
Kenneth H. Yoon, Esq.
LAW OFFICE OF KENNETH H. YOON, APC
One Wilshire Blvd., Suite 2200
Los Angeles, CA 90017
Telephone: (213) 612-0988
Facsimile: (213) 947-1211
E-mail: kyoon@yoonlaw.com
SYMANTEC CORP: Norton Antivirus Program Class Action to Proceed
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Kevin Koeninger at Courthouse News Service reports that a class
action will continue against Symantec after a federal judge found
there is sufficient evidence to determine whether it misled
consumers about its Norton Antivirus program.
Class representatives Devi Khoday and Danise Townsend claim that
Symantec and Digital River Inc., the former operator of Symantec's
e-commerce platform, duped consumers into buying "Norton Download
Insurance," an add-on service that purportedly gave users the
ability to redownload the Antivirus software for a year, though
that "service" already was available to anyone who'd bought the
program.
When consumers added the Norton Antivirus program to their virtual
shopping carts, the "Download Insurance" was automatically thrown
in, for a fee of $5.99 to $10.99.
Symantec claims it was not required to allow downloads of the
software without purchase of the insurance, but the class claims
redownloads were readily available and that "defendants
intentionally led customers to believe that they needed to
purchase the Download Product to re-download their software beyond
sixty days through pop-up descriptions or advertisements, scripted
sales communications, and the auto-population of the 'Check Out
screen' with the Download Product."
The class alleged violations of the Consumers Legal Remedies Act
(CLRA), unfair competition and unjust enrichment. It sought
declaratory judgment against Symantec, which sought dismissal.
U.S. District Judge John Tunheim denied Symantec's motion, except
for dismissal of the claim for declaratory judgment, finding that
"it is unnecessary; plaintiffs have already asserted a claim for
damages based on the same underlying dispute."
Judge Tunheim let the plaintiffs' CLRA claims proceed, finding
that the "Download Insurance" may qualify as a service under the
Act.
Judge Tunheim also let Unfair Competition Law claims proceed,
finding that because Symantec's website claimed the Download
Product extended the time users could redownload the product,
though allegedly it did not, "the facts suggests that Symantec may
have deceived members of the public."
Claims of consumer fraud and unjust enrichment against Digital
River were also upheld, though Judge Tunheim dismissed the
declaratory judgment claim it as well.
A copy of the Memorandum Opinion and Order on Motions to Dismiss
in Khoday, et al. v. Symantec Corp., et al., Case No. 11-cv-00180
(D. Minn.), is available at:
http://www.courthousenews.com/2012/03/14/Symantec.pdf
UNITED PARCEL: Awaits Final Approval of Barber Auto Suit Deal
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United Parcel Service, Inc., is awaiting final approval of a
settlement in the class action lawsuit captioned Barber Auto Sales
v. UPS, according to the Company's February 27, 2012 Form 10-K
filing with the U.S. Securities and Exchange Commission for the
year ended December 31, 2011.
In Barber Auto Sales v. UPS, which a federal court in Alabama
certified as a class action in September 2009, the plaintiff
asserts a breach of contract claim arising from UPS's assessment
of shipping charge corrections when UPS determines that the
"dimensional weight" of packages is greater than that reported by
the shipper. On June 1, 2011, the Company reached an agreement in
principle to settle the case for an immaterial amount. The
settlement has been preliminarily approved, and remains subject to
a final fairness hearing.
UNITED PARCEL: Continues to Defend Class Suits in Canada
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United Parcel Service, Inc., continues to defend itself from class
action lawsuits pending in Canadian courts, according to the
Company's February 27, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
In Canada, three purported class-action cases were filed against
the Company in British Columbia (2006); Ontario (2007) and Quebec
(2006). The cases each allege inadequate disclosure concerning
the existence and cost of brokerage services provided by the
Company under applicable provincial consumer protection
legislation and infringement of interest restriction provisions
under the Criminal Code of Canada. The British Columbia class-
action was declared inappropriate for certification and dismissed
by the trial judge. That decision was upheld by the British
Columbia Court of Appeal in March 2010, which ended the case in
the Company's favor. The Ontario class action was certified in
September 2011. Partial summary judgment was granted to the
Company and the plaintiffs by the Ontario motions court. The
complaint under the Criminal Code was dismissed. No appeal is
being taken from that decision. The allegations of inadequate
disclosure were granted and the Company is appealing that
decision. The request to certify the case in Quebec will be heard
in February 2012. The Company has denied all liability and is
vigorously defending the two outstanding cases. There are
multiple factors that prevent the Company from being able to
estimate the amount of loss, if any, that may result from these
matters, including (1) the Company is vigorously defending itself
and believes that it has a number of meritorious legal defenses
and (2) there are unresolved questions of law and fact that could
be important to the ultimate resolution of these matters.
Accordingly, at this time, the Company is not able to estimate a
possible loss or range of loss that may result from these matters
or to determine whether such loss, if any, would have a material
adverse effect on its financial condition, results of operation or
liquidity.
UNITED PARCEL: Continues to Defend Price-Fixing Class Suit
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United Parcel Service, Inc., continues to defend itself from a
class action lawsuit alleging price-fixing activities, according
to the Company's February 27, 2012 Form 10-K filing with the U.S.
Securities and Exchange Commission for the year ended December 31,
2011.
In January 2008, a class action complaint was filed in the United
States District Court for the Eastern District of New York
alleging price-fixing activities relating to the provision of
freight forwarding services. UPS was not named in this case. In
July 2009, the plaintiffs filed a first amended complaint naming
numerous global freight forwarders as defendants. UPS and UPS
Supply Chain Solutions are among the 60 defendants named in the
amended complaint. The Company intends to vigorously defend
itself in this case. There are multiple factors that prevent the
Company from being able to estimate the amount of loss, if any,
that may result from these matters including: (1) the magistrate
judge recommended that the district court grant the Company's
motion to dismiss, with leave to amend, and the scope of the
plaintiffs' claims is therefore unclear; (2) the scope and size of
the proposed class is ill-defined; (3) there are significant legal
questions about the adequacy and standing of the putative class
representatives; and (4) the Company believes that it has a number
of meritorious legal defenses. Accordingly, at this time, the
Company is not able to estimate a possible loss or range of loss
that may result from these matters or to determine whether such
loss, if any, would have a material adverse effect on the
Company's financial condition, results of operations or liquidity.
WACHOVIA CORPORATION: June 1 Settlement Fairness Hearing Set
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Kirby McInerney LLP on March 13 issued a statement regarding the
In re Wachovia Equity Securities Litigation:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In re Wachovia Equity Securities Litigation, No. 08 Civ. 6171
(RJS)
Summary Notice of (I) Pendency of Class Action; (II) Proposed
Settlement and Plan of Allocation; (III) Settlement Fairness
Hearing; and (IV) Motion for an Award of Attorneys' Fees and
Reimbursement of Litigation Expenses
TO: All persons and entities who purchased or otherwise acquired
Wachovia Corporation ("Wachovia") common stock between May 8,
2006, and September 29, 2008, inclusive, and were damaged thereby,
including all persons or entities who acquired Wachovia common
stock through any of Wachovia's (a) offerings of common stock in
connection with its acquisitions of Golden West Financial Corp.,
and/or A.G. Edwards, Inc., and/or (b) April 14, 2008, common stock
offering, and were damaged thereby.
This notice was authorized by the court. It is not a lawyer
solicitation.
Please read this notice carefully and in its entirety, your rights
will be affected by a class action lawsuit pending in this court.
YOU ARE HEREBY NOTIFIED, pursuant to Rule 23 of the Federal Rules
of Civil Procedure and an Order of the United States District
Court for the Southern District of New York, (i) that the above-
captioned litigation (the "Action") has been preliminarily
certified as a class action on behalf of a class of all persons
and entities who purchased or otherwise acquired Wachovia common
stock between May 8, 2006, and September 29, 2008, inclusive, and
were damaged thereby, and a subclass of all persons or entities
who acquired Wachovia common stock through any of Wachovia's (a)
offerings of common stock in connection with its acquisitions of
Golden West Financial Corp., and/or A.G. Edwards, Inc., and/or (b)
April 14, 2008, common stock offering, and were damaged thereby
(collectively, the "Settlement Classes"), except for certain
persons and entities who are excluded from the Settlement Classes
by definition as set forth in the Stipulation and Agreement of
Settlement in the Action (the "Stipulation"); and (ii) that Lead
Equity Plaintiffs in the Action have reached an agreement to
settle the Action for an aggregated settlement payment of $75
million in cash to the class and subclass (the "Settlement").
A hearing will be held on June 1, 2012, at 11:00 a.m. before the
Honorable Richard J. Sullivan at the United States District Court
for the Southern District of New York, Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, Courtroom 21C, New
York, NY 10007-1312, to determine (i) whether the proposed
Settlement should be approved as fair, reasonable and adequate;
(ii) whether the Action should be dismissed with prejudice against
all the Defendants, and the releases specified and described in
the Stipulation should be granted; (iii) whether the proposed Plan
of Allocation should be approved as fair and reasonable; and (iv)
whether Lead Equity Counsel's application for an award of
attorneys' fees and reimbursement of expenses should be approved.
If you are a member of either (or both) of the Settlement Classes,
your rights will be affected by the Action and the Settlement, and
you may be entitled to share in the Settlement Fund. If you have
not yet received the full printed Notice of (I) Pendency of Class
Action; (II) Proposed Settlement and Plan of Allocation; (III)
Settlement Fairness Hearing; and (IV) Motion for an Award of
Attorneys' Fees and Reimbursement of Litigation Expenses (the
"Notice"), and the Proof of Claim and Release form ("Claim Form"),
you may obtain copies of these documents by contacting the Claims
Administrator: In re Wachovia Equity Securities Litigation, c/o
Rust Consulting, Inc., Claims Administrator, P.O. Box 8027,
Faribault, MN 55021-9427, 1-888-773-8390. Copies of the Notice
and Claim Form can also be downloaded from the Web site maintained
by the Claims Administrator,
http://www.wachoviaequitysettlement.com
If you are a member of either (or both) of the Settlement Classes,
in order to be eligible to receive a payment under the proposed
Settlement, you must submit a Claim Form postmarked no later than
June 27, 2012. If you are a member of either (or both) the
Settlement Classes and do not submit a proper Claim Form, you will
not share in the distribution of the net proceeds of the
Settlement but you will nevertheless be bound by any judgments or
orders entered by the Court in the Action.
If you are a member of the Settlement Classes and wish to exclude
yourself from the Settlement Classes, you must submit a request
for exclusion such that it is received no later than May 12, 2012,
in accordance with the instructions set forth in the Notice. If
you properly and timely exclude yourself from the Settlement
Classes, you will not be bound by any judgments or orders entered
by the Court in the Action and you will not be eligible to share
in the proceeds of the Settlement.
Any objections to any aspect of the proposed Settlement, the
proposed Plan of Allocation or Lead Equity Counsel's application
for an award of attorneys' fees and reimbursement of expenses,
must be filed with the Court and delivered to designated
representative Lead Equity Counsel and counsel for the Wachovia
Defendants such that they are received no later than May 12, 2012,
in accordance with the instructions set forth in the Notice.
PLEASE DO NOT CONTACT THE COURT OR THE CLERK'S OFFICE REGARDING
THIS NOTICE. Inquiries, other than requests for the Notice and
Claim Form, may be made to Lead Equity Counsel:
Andrew McNeela, Esq.
Beverly Mirza, Esq.
KIRBY McINERNEY LLP
825 Third Avenue
New York, NY 10022
Telephone: (212) 371-6600
E-mail: amcneela@kmllp.com
bmirza@kmllp.com
Dated: January 27, 2012
By Order of the United States District Court for the Southern
District of New York
WISCONSIN POWER: Parent Continues to Defend Pension-Related Suit
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Alliant Energy Corporation continues to defend itself from a class
action lawsuit related to its pension plan, according to Wisconsin
Power and Light Company's February 27, 2012 Form 10-K filing with
the U.S. Securities and Exchange Commission for the year ended
December 31, 2011.
In February 2008, a class action lawsuit was filed against the
Alliant Energy Corporation Cash Balance Pension Plan in the U.S.
District Court for the Western District of Wisconsin (Court). The
complaint alleged that certain Plan participants who received
distributions prior to their normal retirement age did not receive
the full benefit to which they were entitled in violation of the
Employee Retirement Income Security Act of 1974 (ERISA) because
the Plan applied an improper interest crediting rate to project
the cash balance account to their normal retirement age. These
Plan participants were limited to individuals who, prior to normal
retirement age, received a lump sum distribution or an annuity
payment. The Court certified two subclasses of plaintiffs that in
aggregate include all persons vested or partially vested in the
Plan who received these distributions from Jan. 1, 1998 to Aug.
17, 2006 including: (1) persons who received distributions from
Jan. 1, 1998 through Feb. 28, 2002; and (2) persons who received
distributions from March 1, 2002 to Aug. 17, 2006.
In June 2010, the Court issued an opinion and order that granted
the plaintiffs' motion for summary judgment on liability in the
lawsuit and decided with respect to damages that prejudgment
interest on damages would be allowed. In December 2010, the Court
issued an opinion and order that decided the interest crediting
rate that the Plan used to project the cash balance accounts of
the plaintiffs during the class period should have been 8.2% and
that a pre-retirement mortality discount would not be applied to
the damages calculation. In March 2011, the Court issued an
opinion and order that prejudgment interest on damages would be
calculated using the average prime rate from the date that the
Plan failed to make the total payment to a particular participant
through the date of the final judgment (which has not yet been
issued). In September 2011, plaintiffs filed a motion for leave
to file a supplemental complaint to assert that the 2011 amendment
to the Plan, made to conform with the IRS determination letter,
was itself an ERISA violation. In November 2011, the Court
allowed the filing of the Plaintiffs' supplemental complaint and
denied a separate motion for reconsideration filed by the Plan
arguing that certain of Plaintiffs' claims were time-barred.
Following the November 2011 ruling, Plaintiffs filed a new
complaint. The Plan filed an answer in January 2012, pursuant to
the scheduling order issued by the Court. Following resolution of
the new complaint, the Plan may appeal the final judgment to the
Seventh Circuit Court of Appeals.
Based on opinions and orders issued by the Court to date and the
$10.2 million of Internal Revenue Service-related offset benefits
paid by the Plan in 2011, the Plan currently estimates that the
final trial court judgment of damages, after offsetting the
additional benefits paid to participants by the Plan, may be up to
approximately $17 million, which includes prejudgment interest
through Dec. 31, 2011, but does not include any award for
plaintiffs' attorney's fees or costs or the potential value of
additional claims newly asserted in the supplemental complaint by
the Plaintiffs in November 2011 whose value is not yet known.
Alliant Energy, Interstate Power and Light Company and Wisconsin
Power and Light Company do not currently believe any material
losses related to the final judgment of damages from this class
action lawsuit are both probable and reasonably estimated, and
therefore have not recognized any material loss contingency
amounts for the final judgment of damages as of Dec. 31, 2011.
Alliant Energy, IPL and WPL are currently unable to predict the
final outcome of the class action lawsuit or the ultimate impact
on their financial condition or results of operations but believe
the outcome could have a material effect on their retirement plan
funding and expense.
*********
S U B S C R I P T I O N I N F O R M A T I O N
Class Action Reporter is a daily newsletter, co-published by
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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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